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• U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS IN THE MATTER OF: COASTAL AIR TRANSPORT, INC. Respondent. Tuesday, FAA No. 2011-1005 Case No. 2010 S0-700037

January 29, 2013 Courtroom 2 Almeric L. Christian Federal Building and Courthouse Christiansted, St. Croix U.S. Virgin Islands The· above-entitled matter came on for hearing, pursuant to notice, at 9:30 a.m.
BEFORE: THE HONORABLE J.E. SULLIVAN, Administrative Law Judge 

# RECE\VEO FEB 15 2013 

## HEARlNGDOCKET

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• APPEARANCES: On Behalf of the Complainant, Federal Aviation Administration: RASHAWN RICH GEORGE, ESQ. of: Office of the Regional Counsel, AS0-7 Southern Region Federal Aviation Administration P.O. Box 20636 Atlanta, Georgia 30320

(404) 305-5200 rashawn.george®faa.gov On Behalf of the Respondent, Coastal Air Transport, Inc.:

of: MICHAEL FOSTER, President JULIETTE THOMAS, Vice President Coastal Air Transport, Inc. P.O. Box 3985 Christiansted, St. Croix, VI 00822 (340) 773-6862

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# • T A B L E 0 F C 0 N T E N T S Witness Direct Cross Redirect Recross R. Steele 23 36 43 0. Arroyo 46 61 67 69 72 76 80 83 J. Bulted 88 144 182 210 216 218 226 

## w. Bohlke 232 243 248 J. Puntonet 250 287 310 317 Exhibit No. Mark Reed Government's 

# • C-1 100 103 C-2 100 103 C-3 105 191 C-5 183 195 C-7 28 29 C-8(a)-(i) 30 33 C-9 113 137 C-13 97 99 C-14 262 321 C-15 262 321 C-17 202 202 Respondent's R-1 38 323 ITEM Page Opening Statement by Ms. George 11 Opening Statement by Mr. Foster 15 

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• 4 1 

### P-R-0-C-E-E-D-I-N-G-S 2 

### (9:34a.m.) 3 

### JUDGE SULLIVAN: We're on the 4 record in the matter of Coastal Air Transport, 5 

### Inc. This is docket number FAA-2011-1005. 6 Today is Tuesday, January 29, 2013 and the 7 parties have convened at Saint Croix, the U.S. 8 Virgin Islands for hearing in this particular 9 case. 10 The Federal Aviation 11 Administration hereinafter referred to as the 12 FAA, as representedby its Attorney of Record, 13 Rashawn Rich George, who is present inperson. 14 The CoastalAirTransport, Inc. is represented 15 by its lay representative, Michael Foster. 16 Also present in the hearing room 17 1s a variety of witnesses that the FAA intends 18 to call throughout the hearing. In addition, 19 we also have present Juliette Thomas onbehalf 20 of the respondent. Good morning, everyone. 21 Okay, Ms. George, let me ask you 22 

### this. We have a complainant's final witness
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• 5 

### 1 and exhibit list that essentially was filed 2 

### before today's proceeding. Are there any 3 particular changes to that witness list? 4 

### MS. GEORGE: Yes, Your Honor, we 5 have excludedMr. PrestonTutein, who was also 6 indicated as a witness for the Agency. Other 7 than the one omission, the witness list 8 remains the same. 9 

### JUDGE SULLIVAN: Okay, so Mr. 10 Tutein, who is listed as witness number five 11 on page three of the Complainant's final 12 witness and exhibit list is stricken. 13 

### MS. GEORGE: Yes. 14 

### JUDGE SULLIVAN: Okay, thank you. 15 

### Mr. Foster, you had indicated in 16 your final witness and exhibit list that was 17 filed prior to today a variety of different 18 witnesses, including yourself, listed as 19 witness number one on page one. And then an 20 additional five witnesses onpage one andpage 21 two. Are there any changes at this time that 22 

### you know of to that witness list?
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### 1 MR. FOSTER: Yes, Your Honor, we 2 have eliminated two of the witnesses. I got 3 

### a hold of David Fair, he is in Alabama. He 4 was not able to come to the hearing. And the 5 other gentleman, Mr. Dye, was unable to 6 attend. 7 So we just have myself and William 8 Bohlke and the prosecution witnesses that we 9 would like to also question. 10 

### JUDGE SULLIVAN: Okay. Okay, 11 thank you very much
. 12 And then Ms. George, turning back 13 to you, have you received any new exhibits 14 from Mr. Foster that you need time to take a 15 look at or discuss with him? 16 

### MS. GEORGE: From Mr. Foster? 17 

### JUDGE SULLIVAN: Yes. 18 

### MS. GEORGE: No, Your Honor. 19 

### JUDGE SULLIVAN: Okay, Mr. Foster 20 have you received any new exhibits from Ms. 21 George that you need time to look at or to 22 talk to her about?
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• 7 1 MR. FOSTER: No, Your Honor. We 2 did make a settlement offer and she sent us a 3 letter back and had no response on that. 4 JUDGE SULLIVAN: Okay. Do you 5 think that taking five minutes now to talk 6 more about settlement would be efficacious or 7 helpful to you? 8 MR. FOSTER: I think that would be 9 up to Attorney George. 10 JUDGE SULLIVAN: Well, let me turn 11 to Ms. George
. Are you in the process of 12 settlement negotiations? Do you think taking 13 five or ten minutes right now would be helpful 14 to you? 15 MS. GEORGE: The Agency responded 16 to a settlement offer that was proffered by 17 Coastal Air Transport on Friday, January the 18 25th in which we requested financial 19 documentation to substantiate a claim of an 20 inability to pay. This was the third 21 opportunity that we had given the Respondent 22 to provide such documentation. And despite
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• 8 1 that, we have not received any documentation 2 to review. 3 In light of that, we don't have 4 any additional information that can consider 5 in settlement. 6 JUDGE SULLIVAN: Okay, thank you. 7 Mr. Foster, if you were interested 8 1n settlement, you can continue settlement 9 negotiations all throughout this hearing. 10 Parties have settled up to the moment that a 11 decision has been reached
. 12 I encourage parties always to try 13 and reach settlement before I fly somewhere, 14 but that doesn't always happen. You are 15 welcome to continue your settlement 16 negotiations with Ms. George privately. If 17 she has requested from you additional 18 financial documentation, you are free to 19 provide that to her at any time. 20 Obviously if you are making an 21 affirmative defense at this hearing of 22 financial hardship or inability to pay, NEAL R. GROSS {202) 234-4433 COURT REPORTERS ANDTRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com

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• 9 1 

### ultimately you would want to be presenting 2 that as testimonial evidence as part of your 3 case in chief. So I will leave that to you to 4 discuss with Ms. Thomas and to think about 5 during this proceeding. 6 Do you have any questions about 7 that? 8 

### MR. FOSTER: No, Your Honor. 9 

### JUDGE SULLIVAN: Okay. Okay, Ms. 10 

### George, do you want to make any kind of 11 

### opening statement or would you like to jump 12 

### right into testimonial evidence? 13 

### MS. GEORGE: Your Honor, we would 14 

### like to make an opening statement. Prior to, 15 

### we would like for the witnesses to be 16 

### sequestered. 17 

### JUDGE SULLIVAN: Okay. So there 18 

### is a motion 1n limine, Mr. Foster, to 19 

### sequester the witnesses. Do you have any 20 objection to that? And do you know what that 21 

### means? 22 MR. FOSTER: Yes, I do, Your
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1 

### Honor. I object to that. 2 

### JUDGE SULLIVAN: And why do you 3 object to that? 4 

### MR. FOSTER: On the grounds that I 5 

### believe the testimony will all fit together, 6 

### as far as the various witnesses go. 7 

### JUDGE SULLIVAN: Okay. Ms. 8 

### George, do you have a particular reason for 9 

### sequestering the motion to sequester? 10 

### These are your witnesses. Usually that comes 11 

### from the other side
. 12 

### MS. GEORGE: Your Honor, you are 13 

### correct. They are our witnesses. If Mr. 14 Foster doesn't have objections for them to sit 15 through the testimony, then we don't have an 16 objection, either. 17 

### JUDGE SULLIVAN: Okay, so it 18 sounds like you are withdrawing your motion. 19 

### MS. GEORGE: That's fine. 20 

### JUDGE SULLIVAN: Okay, since the 21 

### motion is withdrawn, I won't rule on the 22 

### objection. Thank you both very much. And all
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• 11 1 witnesses are free to stay in the courtroom as 2 they so please. 3 Ms. George, do you have an opening 4 statement you would like to make or would you 5 want to jump right into testimonial evidence? 6 MS. GEORGE: We do have an opening 7 statement. 8 JUDGE SULLIVAN: Okay, please 9 proceed. 10 MS. GEORGE: Your Honor, I am 11 Rashawn George. I am representing the Agency, 12 the Federal Aviation Administration in the 13 matterof CoastalAirTransport, Incorporated. 14 On December 28, 2012, Your Honor 15 issued an order granting partial summary 16 judgment in favor of each party and confirming 17 a hearing date on limited issues. As a result 18 of the order granting partial summary 19 judgment, the 1ssues that are at the 20 violations that are at issue today are limited 21 to three main categories. The first being 22 whether or not the Respondent, Coastal Air,
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• 12 1 

### failed in its responsibility to have 2 appropriate training to transport hazardous 3 materials as it was found it did on October 4 21, 2009. 5 

### The second category of offense is 6 

### whether or not Coastal Air Transport failed in 7 

### its responsibility to maintain notices to 8 

### pilots in command of hazardous materials that 9 

### were onboard its flights. And the third 10 category of offense was whether or not Coastal 11 

### Air Transport correctly or properly inspected 12 the package that was presented for 13 transportation on October 21, 2009. 14 The Agency, on September 8, 

### 2011, 15 filed its complaint in this matter, in which 16 

### we alleged that Coastal Air Transport 17 transported two 750 milliliter bottles of 18 

### diesel fuel, a hazardous material under the 19 Department of Transportation Hazardous 20 Materials Table, and in doing so, Coastal Air 21 Transport, which is a will not carry 135 22 operator, violated the hazardous materials
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1 

### regulations. 2 

### Thus far, the Agency has proven 3 

### that Coastal Air Transport incorrectly 4 transported the hazardous material and failed 5 

### to did so when it was not properly 6 accepted, meaning that it was not properly 7 

### classified, described, packaged, marked, 8 labeled, or in a condition for shipment. We 9 have also proven that Coastal Air Transport 10 transported a hazardous material when it was 11 not a carrier that was allowed under our 12 regulations to do so. 13 Through the testimony of today's 14 witnesses, theAgencywill provide evidence to 15 show that the remaining issues are so that 16 Coastal Air Transport will be found to have 17 violated the additional sections of the 18 

### Federal Aviation Hazardous Materials 19 Regulations with regard to training notices 20 for a pilot in command and for improper 21 acceptance. 22 

### Thank you. NEAL R. GROSS (202) 234-4433 COURT REPORTERS ANDTRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com

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### 1 JUDGE SULLIVAN: Thank you. Just 2 so that I am clear, essentially by order 3 granting anddenying summaryjudgment that was 4 issued on December 28, 2012, the following 5 violations were proved by the FAA by summary 6 judgment: Violations 1, 2, 3, 8, and 9, as 7 alleged in the notice of compliance. 8 

### The violations that were not 9 proved and not dismissed were Violations 10 numbered 5, 6, 7, 10, 11, 12, 13, and 14. So 11 there are eight pendingviolations before this 12 tribunal. 13 In addition to the content of 14 those eightpending allegations, there is also 15 the issue of the civil penalty itself, both 16 for the proved violations that have just been 17 

### identified by this court, and for any 18 potential violations that might be proved 19 during this hearing. So I think that we would 20 want to make sure that that is on the table as 21 well. 22 Mr. Foster, do you have an opening
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1 statement that you would like to make now or 2 do you have an opening statement that you 3 would like to reserve until you open your own 4 case? Do you have a preference? Or no 5 opening statement? 6 MR. FOSTER: I think I would 7 prefer to give it now, Your Honor. 8 JUDGE SULLIVAN: Okay. 9 MR. FOSTER: Good morning
. My 10 name 1s Michael Foster. I am President of 11 Coastal Air Transport. Coastal Air Transport 12 has been a commuter airline inbusiness for 35 13 years. We started in 1982. Coastal Air 14 Transport has a long history of compliance. 15 We had no violations, no history of accidents 16 or incidents, which I am very proud of. 17 The one-pint sample bottle that 18 the prosecution is referring to was, indeed, 19 carried on the aircraft. At the time we 20 thought we were exempt because of the small 21 quantity exemptions listed in 175.10. 22 We have yet to see an analysis of
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• 16 1 

### what was actually in the bottle. We don't 2 know for sure if it was diesel fuel. It was 3 listed to us as oil samples. The prosecution 4 has changed that to diesel fuel or fuel oil. 5 As I say, we have yet to see an actual 6 analysis of the contents of the container. 7 We object to the fact that the FAA 8 attorney, 1n this case, Rashawn George, has 9 made numerous false charges against us and we 10 

### expect to bring them out during this hearing. 11 

### It appears to us that she has done everything 12 

### possible to provide maximum damages to us, 13 

### rather than a solution to the situation. And 14 

### we question her motives for proposing such a 15 

### large find for a fairly minor incident. 16 

### That is all I have right now, Your 17 

### Honor. 18 

### JUDGE SULLIVAN: Thank you. 19 

### Mr. Foster and Ms. George, do you 20 both have a copy with you today of the order 21 

### granting partial summary judgment in favor of 22 each party that was issued on December 28,
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### 2012? Ms. George? 2 

### MS. GEORGE: Yes 1 

### Your Honor. 3 

### MR. FOSTER: Yes 1 

### Your Honor. 4 

### JUDGE SULLIVAN: Okay I 

### Mr. Foster I 5 

### thank you. What you will see in that 6 particular document is a series of undisputed 7 facts that are contained inpage seven/ eight I 8 

### and nine. And because they were undisputed 9 for the summary judgment motion and the court 10 made those findings/ those facts do not need 11 to be realleged or reproved at this time
. 12 So we are going to be starting 13 from the base point of those undisputed facts 14 and moving forward. What that means is that 15 there has alreadybeen a finding/ for example/ 16 of the fact that the fluid contained in the 17 plastic bags accepted for flight and carried 18 on the flight by Coastal Air Transport on 19 October 21 1 

### 2009 was 1 

### in fact 1 

### diesel fuel. 20 So the argument that Mr. Foster 21 just made about the fact that there has not 22 

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• 18 1 

### very well be true but it is a matter that has 2 already been addressed by summary judgment. 3 

### So it 1s not a fact that you 4 should try and spend a lot of time on now, if 5 

### that makes sense. The time to have raised 6 that issue and provided dispute to the 7 allegationwas inthe summaryjudgment motion. 8 Absent controversy and challenge 9 by factual evidence during the summary 10 

### judgment motion, the matter comes in as 11 

### undisputed
. 12 

### So it is a fact for today's 13 

### proceeding that the liquid in the two pints 14 

### two-pint bottles carried by Coastal Air on 15 

### October 21, 2009 

### were, in fat, diesel fuel, 16 

### whether or not there was a testing that meets 17 

### you standard or not. 18 

### Does that make sense to you? 19 

### MR. FOSTER: Your Honor, this just 20 

### recently came to my attention. And under good 21 

### advice, I was informed that any accusations 22 such as this did have to be proved. I did not
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### 1 admit to any guilt or any situation on this 2 

### diesel fuel issue. And it has been called 3 several times different objects that were in 4 there. It was diesel fuel. It was fuel oil. 5 It was, at one time, called a cleaning agent 6 that was in the bottles. There was confusion 7 over the identification numbers on the 8 bottles. So we never had anything to really 9 

### argue about. There were so many different 10 accusations going on, that we didn't know 11 which one to object to. 12 JUDGE SULLIVAN: Okay. 13 

### MR. FOSTER: And we have yet to 14 see any evidence of what actually was in the 15 bottle. And I would ask to have the bottles 16 brought here. I don't know if they have been 17 brought here as evidence. But all we have is 18 pictures of the box and pictures of the 19 containers that they were in. 20 

### JUDGE SULLIVAN: I think you are 21 operatingunder the assumption that all things 22 

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### 1 be an error. 2 The summary judgment motion is in 3 fact a testing ground for parties to test the 4 

### allegations and to present proof or disproof 5 

### of the allegations, in an attempt, 6 essentially, to resolve as much of the issue 7 

### or issues as possible, either to completely 8 eliminate the need for a hearing or to narrow 9 the issues for the hearing. 10 Prior to summary judgment, as you 11 may well recall, there is a period of time 12 

### between the allegation and the summary 13 

### judgment motion where parties exchange 14 evidentiarymaterial and engage what is called 15 a discovery process. And you participated in 16 several telephone conferences where we talked 17 about discovery, discovery deadlines, the 18 exchange of information, and so forth. That 19 was the time for you to challenge the FAA 20 regarding its allegation of the diesel fuel 21 

### content. It was also the time for you to 22 request sampling, if that is what you wanted.
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### 1 It was a time for you to engage in vigorous 2 discussion with the FAA and for its expert 3 witnesses regarding the allegations made. 4 So at the point that this court 5 held the summary judgment motion and then 6 continued it to allow for additional discovery 7 and discussions, that was the time for you to 8 be litigating the issue of what was actually 9 

### in the containers. The boat has sailed, 10 essentially, on that particular point at this 11 point
. 12 

### You are certainly I will 13 certainly allow you to question, for the 14 purposes of appeal, any of the witnesses that 15 come up on a limited basis as to the contents 16 

### of the bottles. But I can tell you at this 17 point that it J.s a fact for today's proceeding 18 and for this court's decisionmaking. 19 

### MR. FOSTER: Yes, Your Honor. 20 

### JUDGE SULLIVAN: Okay. 21 

### MR. FOSTER: I just

-- I reviewed 22 my file. I saw no evidence from the
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1 prosecution as to what was actually in the 2 bottles. 3 JUDGE SULLIVAN: Right. They made 4 an allegation. It was not disputed by you 5 with any particular evidentiary material in 6 the summary judgment motion. Thank you. 7 Okay, Ms. George, would you like 8 to call you first witness? 9 MS. GEORGE: Yes, Your Honor. The 10 Agency calls Renae L. Steele to the stand. 11 JUDGE SULLIVAN: Thank you. Mr. 12 Steele, would you approach the witness stand? 13 And while you are still standing, please raise 14 your right hand, sir. 15 WHEREUPON, 16 RENAE L. STEELE 17 WAS CALLED AS A WITNESS BY AND ON BEHALF OF 18 THE GOVERNMENT AND, AFTER HAVING BEEN FIRST 19 DULY SWORN, WAS EXAMINED AND TESTIFIED AS 20 FOLLOWS: 21 JUDGE SULLIVAN: Please take a 22 seat. When you are comfortable, please state
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• 23 1 

### you name and spell your last name for the 2 

### record. 3 

### THE WITNESS: Renae L. Steele, S4 T-E-E-L-E. 5 

### JUDGE SULLIVAN: Thank you. 6 

### Counsel, you may inquire. 7 

### MS. GEORGE: Thank you, Your 8 

### Honor. 9 

### DIRECT EXAMINATION 10 

### BY MS. GEORGE: 11 Q 

### Mr. Steele, where are you 12 

### currently employed? 13 A 

### Customs and Border Protection. 14 

### JUDGE SULLIVAN: I'm sorry, sir. 15 

### What? 16 

### THE WITNESS: Customs and Border 17 

### Protection. 18 

### JUDGE SULLIVAN: Thank you. 19 

### BY MS. GEORGE: 20 Q 

### And what is your position with 21 

### Customs and Border Protection? 22 A I 

### am a 

### Customs and Border
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• 24 1 Protection Officer. 2 Q And how long have you been with 3 the Agency? 4 A Four and a half years. 5 Q And what are your duties as a 6 Customs and Border Protection Officer? 7 A First and foremost is protect 8 America from any threats of terrorism. 9 Besides that, the illegal flow of drugs, 10 weapons, contraband into the United States, 11 agriculture products
. 12 Q And where are you currently 13 assigned to conduct your duties? 14 A At the Saint Croix Airport, Henry 15 E. Rohlsen Airport. 16 JUDGE SULLIVAN: I'm sorry, sir. 17 What was the last part of your statement? 18 THE WITNESS: The Henry E. Rohlsen 19 Airport. 20 JUDGE SULLIVAN: Thank you. 21 BY MS. GEORGE: 22 Q Do you recall conducting an NEAL R. GROSS (202) 234-4433 COURT REPORTERS ANDTRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com

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### 1 investigation into a companynamed CoastalAir 2 Transport? 3 A 

### Yes. 4 Q 

### And what do you recall about 5 Coastal Air Transport? 6 A 

### On the day of the matter? 7 Q 

### I'm sorry? 8 A 

### Yes, could you repeat the 9 question? 10 Q 

### What is your recollection about 11 Coastal Air Transport and your involvement 12 with them? 13 A 

### Based on the day that the package 14 came in, doing the flight as regular, we 15 observed this box that came on a flight and it 16 didn't belong to any of the passengers 17 involved. So it was determined to be cargo. 18 

### So when we opened the box, we 19 found these two bags inside of HAZMAT packs. 20 When we opened the bags, it had two bottles 21 filled with fuel or something in it. Well, I 22 

### shouldn't say fuel. We don't know what it was NEAL R. GROSS (202) 234-4433 COURT REPORTERS ANDTRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com

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### 1 inside the bottle. 2 

### And again we spoke with the 3 supervisor. The supervisor told us to again, 4 

### detain it until we determine what it was. 5 Q 

### Okay. And you indicated that 6 

### there was a flight. Do you recall the date of 7 

### this particular flight? 8 A 

### It was October 21, 2009. 9 Q 

### Thank you. How often does Coastal 10 Air operate out of the Saint Croix 11 International Airport? 12 A 

### If I could recall, about two to 13 three times a week. 14 Q 

### And you indicated that you 15 inspected this particular flight. What does 16 that entail, the inspection of a flight? 17 A Well the passengers come through 18 the flight. We process the passengers and 19 again determine admissibility. After that, we 20 do Customs. We check their stuff, make sure 21 they are not bringing anything illegal into 22 

### the country.
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1 If there is any cargo on the 2 flight, and again we again review the cargo, 3 go through the cargo, make sure again there is 4 not illegal merchandise entering the United 5 States. 6 Q Now was the cargo on this 7 particular flight brought into Customs or how 8 was it located? 9 A Yes, it comes in. He brings it 10 in. 11 Q And did Mr. Foster bring in this 12 particular package? 13 A Yes. 14 Q Did there every come a time when 15 you prepareda statement of your inspection of 16 this flight? 17 A Yes. 18 MS. GEORGE: Your Honor, may I 19 approach? 20 JUDGE SULLIVAN: You may. I will 21 note that the FAA attorney is approaching the 22 witness.
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• 28 1 (WHEREUPON, THE DOCUMENT REFERRED 2 TO WAS MARKED AS GOVERNMENT'S 3 EXHIBIT NO C-7 FOR 4 IDENTIFICATION.) 5 BY MS. GEORGE: 6 Q Mr. Steele, I have handed you what 7 has beenmarked for identificationas Agency's 8 Exhibit C-7. Do you recognize the document? 9 A Yes. 10 Q And what is it? 11 A As I recall it is the IL or 12 incident log, the statement that was written 13 the day of the inspection. 14 Q And who wrote this particular 15 statement? 16 A Excuse me? 17 Q Who wrote the statement? 18 A I did. 19 MS. GEORGE: Your Honor, at this 20 time I would like to have admitted into 21 evidence Government's Exhibit C-7. 22 JUDGE SULLIVAN: Mr. Foster, there
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• 29 1 has been a motion to admit Exhibit C-7. Do 2 you have any objection? 3 MR. FOSTER: No objection, Your 4 Honor. 5 JUDGE SULLIVAN: There being no 6 objection, Exhibit C-7 is hereby admitted. 7 (WHEREUPON, THE DOCUMENT REFERRED 8 TO, PREVIOUSLY MARKED AS 9 GOVERNMENT'S EXHIBIT NO. C-7 FOR 10 IDENTIFICATION, WAS RECEIVED IN 11 EVIDENCE.) 12 BY MS. GEORGE: 13 Q Now Mr. Steele, you testified 14 about identifying a box that was carried as 15 cargo on a flight on October 21, 2009. What, 16 if anything, do you recall about the condition 17 of the box? 18 A The condition of the box? 19 Q Yes, how did it look? 20 A It was a simple cardboard box. 21 Q Were there any markings or labels 22 on that box?
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• 30 1 A 

### Nothing pertaining to what was 2 

### inside, really. It just had like a label, 3 like a mailing label and just simple writing 4 on the box. 5 Q 

### Do you recall how you became aware 6 

### of what were the contents of that particular 7 box? 8 A 

### By opening the box. 9 Q 

### And who opened it? 10 A 

### I did. 11 MS. GEORGE: Your Honor, again, 12 

### may I approach the witness? 13 

### JUDGE SULLIVAN: You may. I will 14 note that the FAA attorney is approaching the 15 witness. 16 

### And the FAA attorney is now 17 returning to her podium. 18 (WHEREUPON, THE DOCUMENT REFERRED 19 

### TO WAS MARKED AS GOVERNMENT'S 20 

### EXHIBIT NO. C-8(a) through C-8(I) 21 

### FOR IDENTIFICATION.) 22 

### BY MS. GEORGE:
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• 31
1 Q 

### Mr. Steele, I have handed you a 2 copy of a document that has been marked for 3 identification as Agency's Exhibit C-8(a) 4 

### through C-8(I). Would you take a moment and 5 

### look at those document? Do you recognize 6 

### them? 7 A 

### Yes. 8 Q 

### And what are they? 9 A 

### The box that came in that day and 10 the bottles that were inside. 11 Q 

### I'm sorry, are they photographs? 12 A 

### Excuse me? 13 Q 

### They are photographs of the box? 14 A 

### Yes, this is the photographs of 15 the box and the bottles that were inside. 16 Q 

### And do the photographs that I have 17 

### handed to you that are marked for 18 identification as C-8(a) through C-8(I), do 19 they fairly and accurately depict the box that 20 was transported on October 21, 2009 by Coastal 21 Air Transport? 22 A 

### Yes. NEAL R. GROSS (202) 234-4433 COURT REPORTERS ANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com

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• 32
1 

### MS. GEORGE: Your Honor, at this 2 time the Agency moves to admit into evidence 3 Agency's Exhibit C-8(a) through C-8(I) 4 JUDGE SULLIVAN: Mr. Foster, there 5 has been a motion to admit. Do you have any 6 objection? 7 

### MR. FOSTER: I have no objection, 8 Your Honor. 9 

### JUDGE SULLIVAN: Counsel, I am 10 going to reserve the motion. I would like to 11 know who took the photographs, if you wouldbe 12 

### so kind. 13 

### MS. GEORGE: That's fine, Your 14 Honor. Thank you. 15 

### BY MS. GEORGE: 16 Q 

### Mr. Steele, are you aware of who 17 took thephotographs that havebeen identified 18 asGovernment's Exhibit C-8(a) throughC-8(I)? 19 A 

### Yes. 20 Q 

### And who was that? 21 A 

### Agricultural Specialist Arroyo. 22 JUDGE SULLIVAN: I'm sorry, sir,
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• 33
1 I couldn't hear you. 2 THE WITNESS: Agricultural 3 Specialist Arroyo. 4 BY MS. GEORGE: 5 Q Is that Omar Arroyo? 6 A Yes. 7 Q Thank you. Now at the time the 8 inspection was conducted

-- 9 JUDGE SULLIVAN: Counsel, are you 10 renewing your motion to admit? 11 MS. GEORGE: Yes, Your Honor. 12 JUDGE SULLIVAN: Okay. Mr. 13 Foster, any objection to the renewed motion? 14 MR. FOSTER: No, Your Honor. 15 JUDGE SULLIVAN: Exhibit C-8(a) 16 through 8(I) are hereby admitted. 17 (WHEREUPON, THE DOCUMENT REFERRED 18 TO, PREVIOUSLY MARKED AS 19 GOVERNMENT'S EXHIBIT NO. C-8(a) 20 throughC-8(I) FOR IDENTIFICATION, 21 WAS RECEIVED IN EVIDENCE.) 22 JUDGE SULLIVAN: Thank you. NEAL R. GROSS (202) 234-4433 COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com

# • 34 1 MS. GEORGE: Thank you. 2 BY MS. GEORGE: 3 Q Mr. Steele, at the time of the 4 inspection of the Coastal Air flight on 5 October 21, 2009, were you presented with any 6 documentation regarding the contents of the 7 package? 8 A The contents of the package, no. 9 Q Did you make any request for any 10 documentation regarding the package? 11 A I didn't personally. The 12 supervisor. 13 Q Did you ever learn who the package 14 was intended for? 15 A We was told it was for a company 16 called SGS 1n Saint Croix. As far as I know, 17 they are a subcontractor to the Hovensa 18 refinery at the time. 19 Q And did you release the package to 20 SGS at the time of the flight? 21 A No. 22 Q And what happened to the package?
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• 36 1 

### and what your perceptions were about this 2 particular incident? 3 

### THE WITNESS: Yes. 4 

### JUDGE SULLIVAN: Is there anything 5 1n this one-page document that is inaccurate 6 

### or that you would like to change at this time? 7 

### THE WITNESS: No. 8 

### JUDGE SULLIVAN: Thank you. Mr. 9 Foster, do you have any questions to ask this 10 

### witness? 11 

### MR. FOSTER: Yes, I do, Your 12 

### Honor. 13 

### CROSS-EXAMINATION 14 

### BY MR. FOSTER: 15 Q 

### Good morning, Officer Steele. 16 A 

### Good morning. 17 

### MR. FOSTER: Your Honor, I have a 18 

### copy of the complaint. I would like to let 19 

### Officer Steele read from. 20 

### JUDGE SULLIVAN: And what would be 21 

### the purpose of having this particular witness 22 read a record that is already before the
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• 37 1 

### Court? 2 

### MR. FOSTER: He has already 3 presentedevidence that would serve to impeach 4 the prosecution attorney. 5 

### JUDGE SULLIVAN: Is it possible 6 for you to ask him question as opposed to 7 having this witness read material to me? I 8 mean, I have a copy of the Notice of Complaint 9 in front of me. 10 MR. FOSTER: Okay, this complaint 11 is the one dated 9/8/11, September 8, 2011
. 12 JUDGE SULLIVAN: Why don't you 13 take a look at my copy? 14 

### MR. FOSTER: I could read to him 15 the complaint and then have him respond to it, 16 if that would be easier. 17 

### JUDGE SULLIVAN: Why don't you 18 just take a look? 19 Counsel, do you have any objection 20 to having the witness take a look at the 21 complaint that was filed by the FAA? 22 

### MS. GEORGE: Yes, Your Honor. NEAL R. GROSS (202) 234-4433 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com

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• 38 1 JUDGE SULLIVAN: What is the 2 objection? 3 MS. GEORGE: The objection is 4 relevance. 5 JUDGE SULLIVAN: And how would it 6 not be relevant, in your opinion? 7 MS. GEORGE: The allegations that 8 were drafted by the Agency are based upon an 9 investigation that was conducted by the FAA 10 Special Agent, Juan Bulted. Mr. Steele is a 11 fact witness regarding what he observed on 12 that particular day. 13 JUDGE SULLIVAN: Thank you. Your 14 objection is noted and respectfully overruled 15 at this time. 16 Mr. Foster, do you have a copy of 17 the Notice of Complaint you can offer him? 18 MR. FOSTER: Yes, I do. 19 (WHEREUPON, THE DOCUMENT REFERRED 20 TO WAS MARKED AS RESPONDENT'S 21 EXHIBIT NO. R-1 FOR 22 IDENTIFICATION.)
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• 39 

### 1 MR. FOSTER: I would like to enter 2 it as Respondent's Exhibit 1. 3 

### JUDGE SULLIVAN: Do you have a 4 copy for the Court? 5 

### MR. FOSTER: Yes, I do, Your 6 Honor. 7 

### JUDGE SULLIVAN: And I will 8 reserve your motion to admit, basedon whether 9 or not it is going to be helpful to the trier. 10 

### MR. FOSTER: I understand, Your 11 Honor. 12 JUDGE SULLIVAN: Thank you. 13 I will note that Mr. Foster has 14 handed the witness a multi-page document. 15 

### MR. FOSTER: Do you have the color 16 photographs? Oh, you do. Okay. 17 

### BY MR. FOSTER: 18 Q 

### Officer, Steele, if you could turn 19 to page one, number four on that complaint 20 

### statement. It talks about the U.S. Customs 21 and Border Protection Officer discovered the 22 above-described box onboard Flight 413 in
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• 40 1 Saint Croix. Is that a correct statement? 2 A What page is that? Sorry. 3 Q It is page one. It is the front 4 page and it is item number four. 5 It goes, "On or about October 21, 6 2009, aU.S. Customs Border ProtectionOfficer 7 discovered the above-described box onboard 8 Flight 413 in Saint Croix. " 9 A And what was your question? 10 Q Do you remember discovering it 11 onboard the aircraft? 12 A Not onboard the aircraft, per se. 13 Q Okay. I noticed you have already 14 testified that it was brought into the Customs 15 area. If it

-- 16 JUDGE SULLIVAN: Sir, you need to 17 answer yes or no. 18 THE WITNESS: Yes., 19 JUDGE SULLIVAN: Thank you. 20 BY MR. FOSTER: 21 Q If it had been discovered on the 22 aircraft, would that have been smuggling?
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• 41
1 A 

### I'm not sure. 2 Q 

### Okay. Do you have a copy of the 3 cargo manifest from that day, which was the 4 date when the box first arrived in Saint 5 Croix, on or about October 21, 2009? 6 A 

### No, I 

### don't have it in my 7 possession. 8 Q 

### You don't have a copy. Do you 9 remember what it was listed as on the cargo 10 manifest, the contents of the box? 11 A It was not originally listed
. 12 JUDGE SULLIVAN: I'm sorry, sir? 13 

### THE WITNESS: It was not 14 originally listed. 15 BY MR. FOSTER: 16 Q 

### But it

-- okay. Go now to number 17 two on that same page. It says, "On or about 18 

### October 21, 2009 Coastal Air Transport 19 knowingly accepted the transportation by air 20 of a one-piece shipment, consisting of a non21 specification fiberboard box." And I would 22 

### ask you now to go to the prosecution's Exhibit
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• 42 1 

### C-8(f) on the color picture. 2 And if you look on the lower side 3 of the box, and this is a true picture of the 4 box that you received at Customs, can you read 5 that for the Court? 6 A 

### "This package conforms to 49 CFR 7 173.4. II 8 Q 

### Thank you. So in fact, it was a 9 standard shipping box for hazardous materials 10 and it was properly packaged. Would that be 11 your opinion on it? 12 A 

### I'm not sure. 13 Q 

### At any time during this inspection 14 or afterwards, were you informed of the actual 15 contents of the sample bottles? 16 A 

### Yes. 17 Q 

### And what were the contents and how 18 were they determined? 19 A 

### According to the supervisor, SGS 20 faxed us a certificate stating that it was 21 fuel oil, diesel fuel oil I should say. 22 Q 

### Okay, we would like to -- do you NEAL R. GROSS (202) 234-4433 COURT REPORTERS ANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com

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• 43
1 have copies of that certificate? 2 A No, I don't. 3 MR. FOSTER: Okay, I have not 4 received that, Your Honor. 5 JUDGE SULLIVAN: Thank you. 6 MR. FOSTER: Okay, no further 7 questions. 8 JUDGE SULLIVAN: Thank you. Ms. 9 George, do you have any redirect, based on the 10 cross? 11 MS. GEORGE: Yes, Your Honor, 12 briefly. 13 REDIRECT EXAMINATION 14 BY MS. GEORGE: 15 Q Mr. Steele, you indicated that in 16 response to Mr. Foster's question, that this 17 particular box was not originally listed on 18 the manifest. 19 A Yes. 20 Q Could you please explain? 21 A When the aircraft comes in, they 22 g1ve us a declaration, agenda, as well as a NEAL R. GROSS (202) 234-4433 COURT REPORTERS ANDTRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com

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• 44
1 manifest of any cargo that is on the aircraft. 2 The original manifest didnot have the package 3 listed. So we asked Mr. Foster about it. He 4 stated that I guess it was forgot to on the 5 manifest. So we allowed him to amend the 6 manifest, in which he wrote samples for the 7 SGS Company. But we still couldn't determine 8 what it was. 9 MS. GEORGE: Thank you. No 10 further questions, Your Honor. 11 JUDGE SULLIVAN: Thank you. Mr. 12 Foster, do you have any recross, based on that 13 redirect? You don't need to. I just want to 14 offer it to you. 15 MR. FOSTER: No, Your Honor. 16 JUDGE SULLIVAN: Okay. Mr. 17 Steele, thank you very much for your 18 testimony. It appears to be complete. You 19 may stand down. 20 MR. STEELE: Do you need the 21 papers? 22 JUDGE SULLIVAN: You can just
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• 45 1 leave them up there. Thank you. 2 Ms. George, do you have any other 3 witnesses? 4 MS. GEORGE: Yes, Your Honor, at 5 this time, I would like to call Omar Arroyo to 6 the stand. 7 JUDGE SULLIVAN: Mr. Arroyo? 8 WHEREUPON, 9 OMAR ARROYO 10 WAS CALLED AS A WITNESS BY AND ON BEHALF OF 11 THE GOVERNMENT AND, AFTER HAVING BEEN FIRST 12 DULY SWORN, WAS EXAMINED AND TESTIFIED AS 13 FOLLOWS: 14 JUDGE SULLIVAN: Please take a 15 seat. When you are comfortable, please state 16 your name and spell your last name for the 17 record. 18 THE WITNESS: Omar Arroyo, A-R-R19 0-Y-0. 20 JUDGE SULLIVAN: Thank you. 21 Counsel, you may inquire. 22 MS. GEORGE: Thank you, Your
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• 46 

### 1 Honor. 2 

### DIRECT EXAMINATION 3 

### BY MS. GEORGE: 4 Q 

### Mr. Arroyo, where are you 5 currently employed? 6 A 

### I work at Luis Munoz Marin Airport 7 in San Juan, Puerto Rico. 8 Q 

### And who do you work for? 9 A 

### Customs and Border Protection. 10 Q 

### And what is your position with 11 Customs and Border Protection? 12 A 

### Currently, I am an Agriculture 13 Specialist supervisor. 14 Q 

### And how long have you been with 15 Customs and Border Protection? 16 A 

### Around six years and one month. 17 Q 

### And how long have you worked in 18 San Juan? 19 A 

### Close to a year and a half. 20 Q 

### And prior to your position in San 21 Juan, where were you employed? 22 A 

### Stationed at Henry E. Rohlsen
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• 47
1 

### Airport, Saint Croix. 2 Q 

### And what was your position in 3 Saint Croix? 4 A 

### Agriculture Specialist. 5 Q 

### And what are the duties of an 6 

### Agriculture Specialist? 7 A 

### We assist the officers

-- 8 Q 

### When you say officers, are you are 9 

### referring to the Customs? 10 A 

### Customs officers. 11 Q 

### Okay, thank you. 12 A 

### But our main job is to inspect 13 

### cargo passengers or any conveyance like 14 

### vessels looking for agriculture products that 15 

### are illegal or could be harmful to the U.S. 16 

### Agriculture. 17 Q 

### Now do you recall a flight by 18 Coastal Air Transport on October 21, 2009 in 19 Saint Croix? 20 A 

### Yes. 21 Q 

### And what is your recollection 22 

### about that plane?
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• 48
1 A 

### Officer Steele, notified me that 2 he found a box that was not manifested. And 3 I went to assist him and after speaking to 4 Michael Foster, he told us it was like mixed 5 

### fuel. And I 

### went to my office to get a camera 6 

### to take pictures of the box. Then we opened 7 

### the box and actually took pictures of the 8 contents of the box. 9 Q 

### You have in front of you a packet 10 of documents that have been admitted into 11 evidence, Agency's Exhibit C-8(a) through C12 8 (I)
. 

### Would you take a moment and look at 13 those? 14 Do you recognize the documents? 15 A 

### Yes. 16 Q 

### And what are they? 17 A 

### These are the pictures I 

### took from 18 the box and its contents. 19 Q 

### And these are the photographs that 20 you had taken yourself? 21 A 

### Yes. 22 Q 

### Thank you. Now why did you open NEAL R. GROSS {202) 234-4433 COURT REPORTERS ANDTRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com

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• 49 1 up the box and take photographs on this 2 particular of the contents of this box? 3 A Being manifested as fuel, they 4 were supposed to have labels and markings 5 outside the box for me not to have to actually 6 open and see what is inside. We still have 7 the right to open the box but the only way I 8 can prove what is inside, it will be to open 9 it. If I can see labels, markings, like 10 flammable, the diamond for hazmat, the UN 11 number, I could identify the contents. None 12 of those markings were on the box. So I 13 actually have to open the box and corroborate 14 the statement from Michael Foster that it is 15 actually fuel oil or diesel. 16 Q Now prior 17 MR. FOSTER: I object, Your Honor. 18 JUDGE SULLIVAN: And what is the 19 basis? 20 MR. FOSTER: The testimony bases 21 what was on the cargo manifest. I still have 22 not seen a copy of the cargo manifest.
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• 50 1 My recollection is it was 2 manifested as oil samples, not fuel oil, not 3 diesel. 4 JUDGE SULLIVAN: Okay. There has 5 been an objection raised. Do you have a 6 response, Ms. George? 7 MS. GEORGE: Yes 1 Your Honor. The 8 testimony that has been provided today by Mr. 9 Steele and Mr. Arroyo are to the best of their 10 recollections. Mr. Foster will have an 11 opportunity to testify on behalf of Coastal 12 Air Transport as to what his recollection is. 13 And at the conclusion of this matter, Your 14 Honor will be in a position to weigh the 15 testimony of the witnesses and make 16 credibility determinations based upon the 17 evidence that is being presented here today. 18 JUDGE SULLIVAN: Mr. Foster, 19 anything else that you would like to add to 20 your objection? 21 MR. FOSTER: Your Honor 1 as I 22 said, they took my cargo manifest when I came NEAL R. GROSS (202) 234-4433 COURT REPORTERS ANDTRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com

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• 51 1 in. I haven't received a copy back of it 2 either from Customs or from the prosecution 3 attorney. I think that would show what was 4 listed as the contents of the box. 5 JUDGE SULLIVAN: And just so that 6 I am aware, could you tell me when you first 7 requested that in this litigation? Did you 8 make a discovery request to Ms. George for 9 that at any time prior to today? 10 MR. FOSTER: I don't recall, Your 11 Honor. 12 JUDGE SULLIVAN: Okay. You are 13 welcome to take a look at your paperwork, say 14 during lunch when things aren't happening so 15 quickly, and we can revisit this if you find 16 something. 17 Your objection is noted and 18 respectfully overruled at this time. This 19 witness is here, present, and available for 20 cross-examination. And we can also allow you 21 an opportunity during your cross-examination 22 to ask this witness where the manifest is and
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• 52 1 

### whether or not he has access to provide it to 2 you. 3 

### Sir, I'm not sure if the full 4 question was presented to you or not. Madam 5 

### Court Reporter, do you have the ability to 6 

### read back the question? 7 

### COURT REPORTER: Yes, Your Honor, 8 

### but it will take me a moment to find it. 9 

### JUDGE SULLIVAN: Okay. 10 

### COURT REPORTER: Your Honor, my 11 

### record indicates Mr. Arroyo had finished his 12 

### answer when the objection was made. 13 

### JUDGE SULLIVAN: Thank you. Ms. 14 George, do you have another questionyou would 15 like to ask? 16 

### MS. GEORGE: Yes, Your Honor. 17 

### BY MS. GEORGE: 18 Q 

### Mr. Arroyo, have you ever received 19 any training with regards to hazardous 20 materials? 21 A 

### Yes. 22 Q 

### And what training had you NEAL R. GROSS (202) 234-4433 COURT REPORTERS ANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com

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• 53 

### 1 received? 2 A 

### Hazmat coordinator. 3 Q 

### Hazmat coordinator training? 4 A 

### Yes. 5 Q 

### And what does that training 6 entail? 7 A 

### Okay, they teach us how to 8 identify cargo or any box, drums, container 9 that could have hazardous material based on 10 

### the markings, labels, placards. And using 11 that information, likemanifest, airwaybills, 12 we try to identify the cargo itself. 13 

### If it is harmful for us, we will 14 get specialized people, trained people to 15 

### actually do the inspection. If it is not 16 harmful or it is safely packed, that we can 17 inspect without exposing ourselves, we do the 18 inspection. Otherwise, we get somebody with 19 proper training to do that inspection. 20 Q 

### Now you indicated that this 21 training was entitled hazmat coordinator 22 

### training. Does that mean that you, yourself,
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• 54 

### 1 are a hazmat coordinator? 2 A 

### Yes. 3 Q 

### And is inspecting cargo for 4 hazardous materials a part of you duties 5 A 

### Yes. 6 Q 

### at the Customs and Border 7 Protection? 8 A 

### Yes. Currently, I don't perform 9 those duties because I am based at the 10 passenger airport operations. But if I am 11 deployed to cargo, yes, I do it
. 12 If 

### I have to do air cargo 13 operations, yes, I do. I can also be called 14 if I am the only person with that training at 15 the port at the moment, and I respond. 16 Q 

### Now after this package was found 17 on the Coastal Air flight, October 21, 2009, 18 what, if anything, did you do after your 19 inspection of it? 20 A 

### After the inspection, I gave the 21 pictures to Officer Steele for him to prepare 22 

### his statement and everything. A package that
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• 55
1 was go1ng to be submitted to FAA hazmat 2 personnel, in this case, Juan Bulted. 3 Q And did you, in fact, contact the 4 Federal Aviation Administration, the FAA? 5 A Personally, I did not. After he 6 called the port looking for to talk to Officer 7 Steele, Steele was off that day and I was the 8 one who talked to Juan Bulted that day. 9 MS. GEORGE: Okay, just one 10 moment, Your Honor. 11 BY MS. GEORGE: 12 Q During the time that you were 13 inspecting the package provided by

-- excuse 14 me, transported by Coastal Air Transport, did 15 Coastal Air ever provide a copy of a shipping 16 paper or documents for the box? 17 A No. 18 MS. GEORGE: Your Honor, at this 19 time, we have no further questions for Mr. 20 Arroyo. 21 JUDGE SULLIVAN: Before you sit 22 down, Counsel, could you do me the kindness of
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• 56 

### 1 exploring a couple different things? This 2 witness has indicated that he received 3 training as a hazmat coordinator. I would be 4 most appreciative if you could explore when 5 that happened, how long the training was, what 6 it qualified him to do more specifically, and 7 

### whether or not there is post-training 8 certification. Those kinds of things. 9 

### And then there was also an 10 indication that this witness spoke to Juan 11 Bulted because Officer Steele was off, and I 12 quote, "that day" end quote. 13 So it appears to me that we are 14 talking about a period of time that expands 15 beyond October 21, 2009 and I would like some 16 further inquiry about that, please. 17 

### MS. GEORGE: Yes, Your Honor. 18 

### BY MS. GEORGE: 19 Q 

### Mr. Arroyo, with regards to your 20 training as a hazmat coordinator for Customs 21 and Border Protection, how often do you 22 receive that training?
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• 57
1 A 

### The initial training was for a 2 week and after that, yearly I have to take a 3 course that could be like two hours. 4 Q 

### Okay. And this initial training 5 that you received, do you recall when that 6 was, what year? 7 A 

### Precisely the date, no, but 8 somewhere in 2008. 9 Q 

### And the refresher training that 10 you take

-- excuse me. The yearly training 11 that you take, is that properly identified as 12 a refresher hazardous coordinator training? 13 A 

### Yes, it is known as FROL, First 14 

### Responder Operational Level. Regular 15 employees without the hazmat coordinator 16 training take FRAL, First Responder Awareness 17 

### Level. I have to take that one plus the 18 operational level. 19 Q 

### And how many employees, if you are 20 aware, were hazmat coordinators at the Saint 21 Croix Airport in 2009? 22 A 

### It was like four or five of us, NEAL R. GROSS (202) 234-4433 COURT REPORTERS ANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com

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• 58 1 

### not including supervisors. 2 Q 

### And how many Customs and Border 3 Protection employees in general were there in 4 Saint Croix in 2009? 5 A 

### At the port? 6 Q 

### Yes. 7 A 

### Between officers and agriculture 8 specialists, not counting administrative and 9 import specialists, it was 1

### ike 4 6 to 50, 10 close to that. I'm not sure exactly the 11 number. Close to 46 to 50
. 12 Q 

### And then out of those 46 to 50, 13 five or six were hazmat coordinators? 14 A 

### Yes. 15 Q 

### And you were one of the five or 16 six? 17 A 

### Yes. 18 Q 

### Thank you. You also indicated in 19 your testimony that at some point, Mr. Juan 20 Bulted of the Federal Aviation administration 21 contacted you. 22 A 

### Yes.
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• 59 1 Q 

### Do you recall how Mr. Bulted came 2 to be aware of you and this incident? 3 A 

### I believe Officer Steele sent an 4 email to Juan Bulted. And we also tried to 5 contact him by phone but he wasn't available, 6 so we left a message. 7 Q 

### And when did you all try to 8 

### contact him by phone? Was it when the 9 incident occurred? 10 A 

### I'm not sure. 11 Q 

### Okay. 12 A 

### It could have been the next day. 13 Q 

### And why did you all contact the 14 Federal AviationAdministration regarding this 15 package? 16 A 

### Because we have an SOP, Standard 17 Operating Procedure, that we have to follow 18 when we encounterhazardous material. And the 19 contact person on that SOP was Juan Bulted, 20 hazmat contact person for FAA. 21 Q 

### And after your conversation with 22 Mr. Bulted, did you have any additional
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1 

### interaction with him regarding this matter? 2 A 

### After I

-- the day he contact me, 3 he asked me to send the pictures again. So I 4 did. And that is about it. He asked me a few 5 questions like how was I involved and I told 6 him. 7 Q 

### Okay. 8 A 

### That's about it. 9 

### MS. GEORGE: Great, thank you. No 10 further questions, Your Honor. 11 

### JUDGE SULLIVAN: Thank you. 12 Mr. Arroyo, do you recall what day 13 you first had contact with Mr. Bulted? Was it 14 on October 21, 2009 or was it some other day, 15 to the best of your recollection? 16 

### THE WITNESS: Some other day. 17 

### JUDGE SULLIVAN: Do you recall how 18 many days had passed after October 29, 2009 19 before you first contact Mr. Bulted? 20 THE WITNESS: No, Your Honor. 21 JUDGE SULLIVAN: So it could have 22 

### been a week, three months, one year?
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1 

### THE WITNESS: Less than a year. 2 It was probably like a month that I actually 3 spoke to him. 4 

### JUDGE SULLIVAN: Thank you. 5 Mr. Foster, do you have any cross6 examination of this witness? 7 

### MR. FOSTER: Yes, Your Honor. 8 

### CROSS-EXAMINATION 9 

### BY MR. FOSTER: 10 Q 

### Good morning. 11 A 

### Good morning, sir. 12 Q 

### I'm going to ask you about the 13 same questions that I asked Officer Steele. 14 Considering you are specially trained on 15 hazardous materials, the first question is on 16 the original complaint. They listed this as 17 a one-page shipment consisting of a non18 specification fiberboard box. If you refer to 19 the prosecution's picture, evidence C-8(f), 20 you will see a picture of the box in question, 21 I believe. 22 To you, does that look like, in
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1 

### your best opinion, a non-standard, non2 specification fiberboard box or is that what 3 is normally used to carry materials such as 4 this? 5 A 

### That is one of the statements that 6 usually show up on boxes 7 Q 

### Yes. 8 A 

### that transport hazmat products. 9 Q 

### So it would be, in fact, a 

### 10 specification fiberboard box? 11 A 

### Yes. 12 Q 

### Thank you. Also we had testified 13 before, they said this non-specification 14 fiberboard box was discovered onboard Flight 15 413, that was the aircraft in Saint Croix that 16 delivered it. Do you recall discovering this 17 box on the aircraft or was it presented to 18 Customs in the normal Customs area? 19 A 

### I was called once the box was 20 presented to the officers at the inspection 21 area. 22 Q 

### And do you recall the Customs
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1 document, what this box was listed as? 2 A It was not listed. 3 Q I mean when it was written on the 4 document, what it was listed at at the time? 5 You don't recall? 6 A No, it was not -- 7 Q What would have happened to the 8 Customs manifest? 9 A What? 10 Q Where would the Customs manifest 11 be? 12 A What do you mean? 13 Q Well the Customs declaration that 14 listed the box, would that be kept on file or 15 was a copy given to the FAA? 16 A I'm not the person that presented 17 the documents to the FAA

-- 18 Q Okay. 19 A but we keep records of 20 manifests. We stamp them as received and a 21 copy is provided back to the pilot that 22 brought the cargo. So we should have a copy NEAL R. GROSS (202) 234-4433 COURT REPORTERS ANDTRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com

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• 64 1 and you should have a copy. 2 Q Do you recall if a copy was given 3 to the pilot that day? 4 A Yes, standard procedure. We keep 5 a copy. The pilot gets a copy. We keep the 6 original one and the pilots receive on that is 7 stamped with a custom seal and also a stamp 8 that says that it is an original copy. 9 Q In the last 30 years, I don't 10 recall ever receiving a stamped copy back from 11 Customs
. 12 MS. GEORGE: Objection, Your 13 Honor. Mr. Foster is testifying. 14 JUDGE SULLIVAN: Your objection is 15 noted and I am going to overrule the objection 16 at this time. It appears to be part of a 17 question. Why don't you finish your question, 18 Mr. Foster? 19 BY MR. FOSTER: 20 Q Okay, the question that I ask can 21 you be sure that the company was given a copy 22 of the cargo manifest of that day? And is
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1 that a regular procedure on an in-bound 2 flight? 3 A We provide a copy. Pilots provide 4 two manifests,

-- 5 Q Yes. 6 A and original and a copy. We 7 keep one. We give one back. 8 Q Isn't it true that one copy stays 9 with Customs and one copy stays with 10 Agriculture? 11 A Yes. 12 Q And that routinely a copy is not 13 given to the pilot? 14 A It is given back to the pilot with 15 the stamp of DHS. If the pilot decides not to 16 keep his copy, we don't force them. But 17 pilots do keep copies of manifests. 18 Otherwise, how would they give the cargo to 19 the passengers or their owners? 20 A Were you, in you capacity as a 21 hazmat officer, were you able to ascertain the 22 contents of the package and the contents of
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1 

### the bottles? 2 A 

### My involvement was inspect and 3 

### take pictures to document the contents. I 

### 4 don't identify the contents. I don't open the 5 

### bottles or anything like that. I am not 6 trained for that. I just document it. 7 Q 

### I understand. Do you have any 8 idea at all what was in the bottles? 9 A 

### The following day, meaning October 10 22nd, I was contacted by Supervisor Preston 11 two times. He provided a copy of a document 12 provided by SGS Company, which was the, I 13 believe was tests they conducted before. It 14 was like a certificate of analysis and that 15 was used to identify the contents. 16 Q 

### I believe we have a copy of that 17 statement and it is a, I believe it is

-- is 18 it a generic description of diesel fuel not 19 

### based on any testing? It is strictly a 20 listing of the properties of diesel fuel. 21 And at that point, had the box 22 

### been released to SGS or was it still being
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• 67 1 held by Customs? 2 A It was released on the 22nd, I 3 believe so. After we received that 4 certificate of analysis, Preston Tutein, 5 Supervisor Tutein informed us to release the 6 boxes. 7 MR. FOSTER: No further questions, 8 Your Honor. 9 JUDGE SULLIVAN: Thank you. Ms. 10 George, do you have any redirect based on the 11 cross-examination? 12 MS. GEORGE: Just one question, 13 Your Honor. 14 REDIRECT EXAMINATION 15 BY MS. GEORGE: 16 Q Mr. Arroyo, was the box that is at 17 question in this particular matter listed on 18 the Customs manifest? 19 A No. 20 MS. GEORGE: Thank you. No 21 further questions. 22 JUDGE SULLIVAN: Mr. Foster?
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1 MR. FOSTER: I objection, Your 2 Honor. 3 JUDGE SULLIVAN: Yes? 4 MR. FOSTER: They have already 5 testified that it was listed on the Customs 6 declaration as oil samples. And they say 7 it says in the prosecution's paperwork that it 8 was a signed copy by me indicating that

-- 9 JUDGE SULLIVAN: Well, I am going 10 to stop you, sir, because what it says in the 11 complaint or in other documents may in fact be 12 different fromwhat this witness has testified 13 to. So the question is whether or not you 14 have an objection to this witness's testimony 15 to the last question. 16 If you think this witness is in 17 error, then the opportunity to clarify that 18 error is yours to command at this point with 19 recross. Do you have a question to ask this 20 witness? And I will note that your objection 21 is respectfully overruled. This witness can 22 answer and did answer that question. Whether
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1 or not you agree with that answer is something 2 different. 3 Do you have a cross-examination 4 question that you would like to ask? 5 MR. FOSTER: I recall that Officer 6 Steele had testified that it was the Customs 7 declaration was amended to say that it was oil 8 samples. And I just was questioning if 9 Officer Arroyo had seen that on the manifest. 10 He has claimed that there was no listing on 11 the manifest. There is a contradiction 12 between his testimony and that of Officer 13 Steel's. 14 JUDGE SULLIVAN: You are welcome 15 to ask him about it. 16 RECROSS-EXAMINATION 17 BY MR. FOSTER: 18 Q Do you have any comments on that, 19 Officer Arroyo? 20 A The original manifest didn't have 21 the box listed. After Officer Steele asked 22 you to include the contents of the box on the
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### manifest, you are allowed to. 2 

### So after the discovery, you were 3 allowed to add the package to the manifest. 4 Q 

### So the package was on the 5 

### manifest. And do you remember what it was 6 

### listed as? 7 A 

### No. It was not on the original 8 

### manifest when it arrived, which is required. 9 

### It must be there upon arrival. 10 

### After you were allowed to amend 11 

### the manifest, yes, it was listed. I don't 12 

### recall how you wrote the contents of the 13 

### package. 14 

### MR. FOSTER: Thank you. No 15 

### further questions. 16 

### JUDGE SULLIVAN: Thank you. Ms. 17 George, do you have any redirect, based on the 18 recross? 19 

### MS. GEORGE: No, Your Honor. 20 

### JUDGE SULLIVAN: Okay. I do have 21 

### a question for you, Ms. George. Since this 22 

### witness testified that there is a copy NEAL R. GROSS (202) 234-4433 COURT REPORTERS ANDTRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com

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• 71 1 available of the material at his office, if 2 you could discuss privately with him whether 3 that could be retrieved easily. 4 MS. GEORGE: A copy of the 5 manifest? 6 JUDGE SULLIVAN: This witness 7 testified that his office always keeps a copy 8 of the manifest, provides a copy back to the 9 pilot, although it doesn't force the pilot to 10 take one. And I am just wondering, since 11 there has been a question raised by Mr. Foster 12 about not receiving that, if it could be 13 easily retrievable. 14 And I see we are a little over the 15 morning recess time. So why don't we take a 16 ten-minute recess now and if you could inquire 17 about that during the recess and report back, 18 that would be helpful. 19 So if everyone could return back 20 here at ten to eleven, that would be great. 21 We can go off the record at this time. 22 (Whereupon, the above-entitled
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• 72 1 matter went off the record at 10:43 a.m. and 2 resumed at 10:57 a.m.) 3 JUDGE SULLIVAN: We're back on the 4 record in the matter of the FAA versus Coastal 5 Air Transport. This is docket number FAA6 2011-1005. We have reconvened after a morning 7 recess. Both the FAA and the Respondent have 8 taken their seats at the counsel tables. And 9 Officer Arroyo 1s back in the witness chair. 10 Sir, you're still under oath. 11 Ms. George
. 12 MS. GEORGE: Yes, Your Honor. 13 Thank you. 14 RE-REDIRECT EXAMINATION 15 BY MS. GEORGE: 16 Q Officer Arroyo, are you aware of 17 whether or not Customs and Border Protection 18 contains copies of flight manifests? 19 A Yes, we do keep copies. 20 Q And how are those copies 21 maintained? 22 A They are placed in boxes which are NEAL R. GROSS (202) 234-4433 COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com

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• 73 1 dated like from, as an example, June first to 2 July the second. 3 Q And where are those boxes 4 maintained? 5 A They are kept for a few years at 6 Air Cargo facility and then they are moved to 7 some self-storage warehouse we have there. 8 Q Are the manifests maintained in 9 any electronic media? 10 A No. 11 Q Are those documents easily 12 retrievable today? 13 A No. 14 Q And to the best of your 15 recollection, what is your retention time for 16 the flight manifest? 17 A Exactly for the flight manifest, I 18 don't know. I know some documents are kept 19 three years. Others are kept five. But 20 exactly how long manifests, per se, are kept, 21 I don't have that information. 22 MS
. GEORGE: Thank you Mr. Arroyo. NEAL R. GROSS (202) 234-4433 COURT REPORTERS ANDTRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com

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1 Nothing further, Your Honor. 2 JUDGE SULLIVAN: Thank you. I 3 have a few questions, sir, if I may. 4 Today is January 29, 2013. The 5 incident that we are talking about is October 6 21, 2009. If in fact the paper copy, 7 original, was retained, how difficult or how 8 easy would it be for you to get a copy? 9 THE WITNESS: Basically, we will 10 have to go to the warehouse and start moving 11 boxes until we locate the one with the 12 specific date. 13 JUDGE SULLIVAN: Where is the 14 warehouse? 15 THE WITNESS: Sunset Storage. 16 JUDGE SULLIVAN: I'm sorry? 17 THE WITNESS: Sunset Storage. It 18 1s right here by-- I don't remember the name 19 exactly. 20 JUDGE SULLIVAN: I'm sorry, 21 someone spoke? 22 MR. FOSTER: I'm sorry. I did,
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• 75 1 

### Your Honor. 2 

### JUDGE SULLIVAN: Yes, Mr. Foster 3 you just have to let the witness struggle. 4 Thank you. 5 Sir, Sunset Storage, when you say 6 right here, what does that mean? 7 

### THE WITNESS: Right in front of 8 McDonald's. And there is, I believe a laundry 9 close by and what used to be known as Pueblo. 10 I don't know if they changed the name. 11 

### JUDGE SULLIVAN: And when you say 12 

### right in front of McDonald's, are you speaking 13 of the restaurant that is within a two-block 14 walking distance of this courthouse? 15 

### THE WITNESS: The one here, no. 16 

### JUDGE SULLIVAN: What McDonald's 17 are you talking about? 18 

### THE WITNESS: It is across -- I 19 think it is like one, two -- two roads from 20 the airport. Two lanes, like. 21 

### JUDGE SULLIVAN: So it would be 22 

### about how many miles from this courthouse?
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1 

### THE WITNESS: From here, maybe 2 five miles, close to five miles from here. 3 

### JUDGE SULLIVAN: Thank you. Ms. 4 George, do you have any additional direct 5 based on the Court's inquiry before I turn to 6 Mr. Foster? 7 

### MS. GEORGE: No, Your Honor. 8 

### JUDGE SULLIVAN: Mr. Foster, do 9 you have any cross-examination or recross, 10 excuse me, at this point? 11 

### MR. FOSTER: Yes, Your Honor. 12 RE-RECROSS-EXAMINATION 13 

### BY MR. FOSTER: 14 Q 

### Officer Arroyo, when you were in 15 Saint Croix and now you are in San Juan, do 16 you regularly inspect passengers coming 17 through Customs with carry-on baggage as well 18 as checked baggage? 19 A 

### Yes. 20 Q 

### Do you routinely find in that 21 baggage, thecheckedbaggage, smallquantities 22 of flammable materials that you would allow to
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1 

### pass through? An example would be fingernail 2 

### polish remover, mouthwash, six-packs of 3 alcoholic beverages. 4 A 

### Yes. 5 Q 

### And it does not alarm you if small 6 quantities of flammable material? 7 A 

### Okay, if you are referring to 8 alcohol? 9 Q 

### Yes. 10 A 

### If it is 151, it is not allowed. 11 Q 

### Correct
. 12 A 

### It is a TSA regulation, 151 is 13 about alcohol proof content that is allowedby 14 

### law. So that is not allowed. So not all 15 flammable liquids, in this case, alcohol, is 16 allowed to travel. Not all of them. 17 Q 

### To your knowledge, what is allowed 18 to travel on aircraft? 19 A 

### Like rum. It is like 40 percent 20 proof. Vodka, beer, nail polish. What else? 21 What other liquids do you want me to specify? 22 Q 

### Well that is the next question I
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1 

### had. The regulations, 175.10, they call off 2 a number of items that are allowed to be 3 

### carried. And my question is, is this 4 inclusive of everything? Do you have a list 5 of everything that is allowed to be carried or 6 are you given guidelines of what can be 7 carried? I believe it is alcoholic beverages 8 now is 140 proof that you are allowed to carry 9 versus it used to be 151. 10 So you could conceivably carry six 11 liters or six quarts of 141 proof rum or vodka 12 or whiskey, that would be acceptable to you. 13 A 

### The Agency that regulates the 14 alcohol isTSAtransportation securityagency. 15 Basically what we deal with alcohol, we 16 collect duty. 17 By TSA law, some alcohol is not 18 allowed to go. 19 Q 

### Okay but as Customs, if you had 20 people coming from down island where they 21 weren't working with TSA and they had 22 alcoholic beverages, at what point would you NEAL R. GROSS (202) 234-4433 COURT REPORTERS ANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com

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1 confiscate the beverages or at what point 2 would you violate the people for? 3 A You will have to ask that question 4 to the Custom Officer. That is not my area of 5 expertise. 6 Q I understand. They also list 7 perfumes, colognes, medical equipment. The 8 only thing I see that is not permitted 9 directly 1s lighter fluid. It says lighter 10 fluid and liquid fuel are not as containing

-- 11 I'm sorry -- liquid fuel are not permitted on 12 one's person. And the aggregate for alcohol 13 1s 1.3 gallons of alcohol. 14 JUDGE SULLIVAN: Are you asking 15 this witness to agree or disagree, Mr. Foster? 16 BY MR. FOSTER: 17 Q Does that sound what you have been 18 told that those are your guidelines? 19 A More or less, yes. 20 MR. FOSTER: Thank you. No 21 further questions. 22 JUDGE SULLIVAN: Thank you. Ms.
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1 

### George, do you have any final redirect? 2 

### MS. GEORGE: One question, Your 3 Honor. 4 

### FURTHER REDIRECT EXAMINATION 5 

### BY MS. GEORGE: 6 Q 

### Mr. Arroyo, have you ever been 7 

### given guidance that it was permissible for 8 

### diesel fuel to be allowed as an accepted 9 

### quantity by passengers? 10 A 

### By passengers, no. 11 

### MS. GEORGE: Thank you. No 12 

### further questions. 13 JUDGE SULLIVAN: Thank you very 14 much for your testimony. It appears to be 15 

### complete. You are welcome to step down at 16 this time. 17 

### MR. ARROYO: Thank you, Your 18 Honor. 19 

### MR. FOSTER: Your Honor, can we 20 recall Officer Steele to the 21 

### JUDGE SULLIVAN: Well it is not 22 

### your case in chief at this point. So

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### MR. FOSTER: I understand. 2 

### JUDGE SULLIVAN: as I 

### 3 understand it, you have listed as potential 4 witnesses

-- I am going to go to your witness 5 list sheet

-- you have Officer Steele listed 6 as a potential witness, as a responsive 7 

### witness. So I will ask Officer Steele to 8 remain in attendance for the time-being. 9 I don't see Officer Arroyo listed 10 for you. 11 

### MR. FOSTER: No, I didn't, Your 12 Honor. 13 

### JUDGE SULLIVAN: Okay. 14 

### MR. FOSTER: I object then to what 15 

### Officer Arroyo's last answer. When I asked 16 him the question regarding what could be 17 carried, he said he was not aware of that, he 18 would have to check with a Customs' agent. 19 

### When he was questioned by the 20 prosecution, he made a statement that they 21 would not be allowed to bring diesel fuel on 22 

### the aircraft.
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1 

### JUDGE SULLIVAN: Okay. 2 

### MR. FOSTER: So he is making a 3 statement there, a judgment statement that he 4 

### said he was not able to make. 5 

### JUDGE SULLIVAN: Do you want me to 6 

### recall Mr. Arroyo to the stand? Do you have 7 

### a question you need to ask him? 8 

### People can testify to things that 9 

### you may not like or agree with but that 10 

### doesn't mean that it is necessarily 11 

### objectionable. And I will overrule your 12 objection on the grounds that there is no 13 

### legal basis for it. But I certainly can 14 recall this witness if you think you have a 15 question for him. 16 

### MR. FOSTER: Yes, Your Honor, I 17 would ask him that question. 18 

### JUDGE SULLIVAN: Okay. Since 19 Officer Arroyo is still in the courtroom, I 20 will ask him to retake the stand at this time, 21 sir. 22 

### Please take a seat, Officer, and
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### 1 please consider yourself still under oath. 2 

### Mr. Foster, if you would like to 3 do some recross, you are welcome to. 4 

### MR. FOSTER: Thank you, Your 5 Honor. 6 FURTHER RECROSS-EXAMINATION 7 BY MR. FOSTER: 8 Q 

### Officer Arroyo, you had answered 9 my question when I asked you about what could 10 be carried aboard the aircraft and you said 11 that was not you area of expertise, you would 12 

### have to consult with a Customs agent. 13 A 

### You were mentioning alcohol 14 contents. 15 Q 

### Correct. 16 A 

### That is not my expertise area. We 17 are not talking about what passengers are 18 allowed to take. You were asking about the 19 alcohol contents. That is not my area. 20 Q 

### Okay. 21 A 

### Alcohol is allowed, as long as 22 

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1 about a specific question, fuel. And I said 2 no. You were talking about alcohol,

-- 3 Q Okay. 4 A -- specifically alcohol content. 5 Q I understand. She had mentioned 6 diesel fuel and you had already admitted that 7 you weren't familiar with what was in the box, 8 what was contained in the box itself. So we 9 don't know for sure if it was diesel fuel or 10 if it was oil samples. 11 JUDGE SULLIVAN: Mr. Foster, for 12 the purposes of this hearing, there has been 13 a finding of fact that it was in fact diesel 14 fuel. So this Court has found as a fact, 15 undisputed at the time, that it was diesel 16 fuel. 17 You are welcome to make an 18 appellate record in testimony or other 19 evidence to challenge that. But for this 20 witness today, this witness maybe directed to 21 believe that it was diesel fuel, if that makes 22 sense. NEAL R. GROSS {202) 234-4433 COURT REPORTERS ANDTRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com

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### 1 MR. FOSTER: Yes, Your Honor. 2 

### BY MR. FOSTER: 3 Q 

### If somebody was coming through 4 your Customs inspection area and they had a 5 Zippo lighter onboard, 6 A 

### A what? 7 Q 

### A Zippo lighter, one of the 8 cigarette lighters, would you allow that to 9 come through? 10 A 

### Yes, that is not my regulation. 11 You are talking about foreign arrivals orpre12 

### departure? What specific area? 13 Q 

### Either one. 14 A 

### Well pre-departure, yes, because 15 they have to go through TSA after me. Foreign 16 arrivals, yes, a light is allowed for me, as 17 

### far as I know. And what would be the 18 ingredient in the lighter that would cause it 19 to light? 20 A 

### Some type of fuel. 21 Q 

### Some type of fuel. 22 A 

### Which one, I don't know.
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### 1 Q 

### It would be similar in nature to 2 diesel fuel. 3 A 

### I don't know. 4 

### MR. FOSTER: Okay, thank you. No 5 further questions. 6 

### JUDGE SULLIVAN: Thank you, Mr. 7 Foster. Ms. George, do you have any redirect? 8 

### MS. GEORGE: No, Your Honor, not 9 of Mr. Arroyo. 10 

### JUDGE SULLIVAN: Mr. Arroyo, thank 11 you again for your testimony. It appears to 12 

### be complete. You are excused. 13 

### MS. GEORGE: Your Honor, we would 14 like Mr. Arroyo to stay around for the 15 remainder of the day. 16 

### JUDGE SULLIVAN: He is welcome to 17 stay if he likes. 18 

### MS. GEORGE: Thank you. At this 19 time, the Agency calls Juan Bulted to the 20 stand. 21 

### JUDGE SULLIVAN: Okay, Mr. Bulted, 22 please just stop there and raise your right
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• 87
1 hand. 2 WHEREUPON, 3 JUAN BULTED 4 WAS CALLED AS A WITNESS BY AND ON BEHALF OF 5 THE GOVERNMENT AND, AFTER HAVING BEEN FIRST 6 DULY SWORN, WAS EXAMINED AND TESTIFIED AS 7 FOLLOWS: 8 JUDGE SULLIVAN: Please take a 9 seat 1n the witness stand. When you are 10 comfortable, please state you name and spell 11 your last name for the record
. 12 THE WITNESS: My first name is 13 Juan, J-U-A-N. The last name is B-U-L-T-E-D. 14 JUDGE SULLIVAN: Okay and I will 15 note that you brought a folder with you. That 16 folder will need to remain closed 17 THE WITNESS: Sure. 18 JUDGE SULLIVAN: and on the 19 witness ledge until the Court allows you to 20 open it. 21 THE WITNESS: Yes, ma'am. 22 JUDGE SULLIVAN: Thank you. NEAL R. GROSS (202) 234-4433 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com

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• 88 1 

### Counsel you may inquire. 2 

### MS. GEORGE: Thank you, Your 3 Honor. 4 

### DIRECT EXAMINATION 5 

### BY MS. GEORGE: 6 Q 

### Mr. Bulted, where are you 7 currently employed? 8 A 

### I work for the Federal Aviation 9 Administration in San Juan, Puerto Rico, and 10 I am a hazard material specialist there. 11 Q 

### And how long have you been with 12 

### the Federal Aviation Administration? 13 A 

### Jesus Christ, let me go back. 14 Quite a few years. Since 1989. 15 Q 

### And have you been a hazardous 16 materials special agent the entire time? 17 A 

### Well the entire time except that 18 back in 19 --no, 2006, we became specialized. 19 Whereas, before that, we were sort of general 20 work we were not specialized in that 21 

### particular field. We are 1ike, excuse my 22 

### language now, we were like the Jack of all the
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• 89 

### 1 trades in security. 2 Q 

### And so prior to 2006, if I can 3 understand you correctly, you were a security 4 agent with duties in addition to hazardous 5 materials. A 

### Yes, ma'am. 7 Q 

### And after 2006, you became 8 specialized as a hazardous materials special 9 agent. 10 A 

### Yes, rna'am. Hold on. Let me 11 correct that because it was not 2006. It was 12 1996. 13 Q 

### Thank you so much. Now what are 14 your duties as a special agent for hazardous 15 materials? 16 A 

### We conduct hazmat inspections. We 17 

### conduct investigations. And we respond to 18 incidents of hazardous material involving the 19 civil aviation. 20 JUDGE SULLIVAN: I'm sorry. What 21 was the last part, sir? Involving what? 22 

### THE WITNESS: Civil aviation.
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• 90
1 BY MS. GEORGE: 2 Q And how do you conduct a hazardous 3 materials investigation? 4 A Well, first we need to have a 5 complaint for maybe a report of an incident. 6 And those they come directly from the a1.r 7 carrier who has been affected by an incident 8 or accident, or they may come through an EPRI 9 complaint. Or sometimes we conduct 10 inspections and we detect violations and 11 regulation. And that is how we initiate the 12 investigationbased on those

-- based on that. 13 Q Are there times when you have 14 received information regarding the 15 transportation of hazardous materials from 16 other federal agencies? 17 A Yes, ma'am. 18 Q And what agencies would have made 19 reports of those? 20 A We have the U.S. Air Force. We 21 have customs. Customs, U.S. Air Force, we had 22 this agency I forget the name. It is the
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• 91 1 Wildlife

-- U.S. Federal Wildlife Agency. 2 And I think if I am not mistaken, 3 we had an incident with NOAA, which is the 4 National WeatherBureau, whateverwe have from 5 them. 6 Q Now, is there a requirement for 7 air carriers to notify the FAA of potential 8 violations of the hazardous materials 9 regulations? 10 A Excuse me, say that again? 11 Q Is there a requirement for air 12 carriers to notify the FAA of potential 13 violations of the hazardous materials 14 regulations? 15 A Yes, ma'am, based on the 49 CFR, 16 which is the regulation that regulates the 17 transportation of hazardous material. They 18 say requirement for the air carriers to report 19 any incidents involving the hazardous 20 material, air transportation. 21 Q And do you recall conducting an 22 investigation into a companynamed CoastalAir
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• 92 1 

### Transport? 2 A 

### Yes, ma'am, I do. 3 Q 

### And what is your recollection of 4 how you first became aware of an incident with 5 Coastal Air Transport? 6 A 

### Back on October 22nd

-- 7 Q 

### Of what year? 8 A 

### It was 2009, I was working at the 9 Flight Standard District Office in San Juan, 10 Puerto Rico, and the reason why I was there 11 was because we moved from the facility where 12 we used to be before and we were transferred 13 there, so we were operating from that facility 14 there. 15 And I came to work that morning 16 and I had a conversation, there was a Flight 17 Standard District Inspector, his name is 18 Manuel Perez. And he had a conversation with 19 someone else related to an incident that had 20 taken place in Saint Croix in Coastal Air 21 Transport. And even though sitting at my 22 

### desk, I paid attention to the conversation.
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• 93
1 

### And the conversation indicated that someone 2 from the U.S. Customs Service had detected a 3 hazardous material shipment onboard a Coastal 4 Air Transport aircraft. 5 I got up and I got involved in the 6 conversation and being my responsibility of 7 conducting hazmat investigation, I 

### asked Mr. 8 Perez if he had made a report of this 9 

### incident. He told me that he did. And I 

### 10 asked him if he knew the names of the

-- even 11 though he mentioned Coastal Air Transport, he 12 was not -- he didn't have the names. So I 

### 13 didn't know what the name of the pilot was 14 involved. And I 

### also asked him the name if 15 

### anyone from because he also mentioned 16 Customs as the Customs andAgriculture are the 17 entities who found the box and I 

### ask him for 18 the names of the inspectors that were involved 19 and he didn't have that information. 20 So on October 23rd, I 

### called the 21 U.S. Customs Service in Saint Croix and I 

### 22 began talking to a supervisor there. His name NEAL R. GROSS (202) 234-4433 COURT REPORTERS ANDTRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com

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• 94
1 

### is Tutein Preston. And I talked to him 2 through the phone and he told me that there 3 was actually an incident that had taken place 4 aboard the aircraft service in Coastal Air 5 Transport aircraft servicing the Flight 413, 6 if I 

### am not mistaken. And when he told me it 7 

### was Officer Steele and Officer Omar Arroyo 8 that were inspecting that aircraft, servicing 9 that particular flight on that particularday, 10 which was the 21st of October when the 11 inspection actually took place
. 12 And they observed a box onboard 13 the aircraft. And he also told me that they 14 interviewed the passengers onboard the 15 aircraft that were on that particular flight 16 and they

-- none of the passengers claimed 17 

### ownership of the box. So he told me that 18 based on that information, they assumed that 19 the box was part of the cargo onboard that 20 aircraft and that Officer Steele and Officer 21 Omar Arroyo, they conducted a physical 22 inspection of the box and they found two
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• 95 

### 1 bottles containing a liquid substance. 2 Q 

### Now at any time did you obtain 3 statements or photographs from the U.S. 4 Customs Agency? 5 A 

### Yes, later on I received a set of 6 photographs that were taken by the Customs 7 Service and I also received a copy of like a 8 memorandum that Supervisor

-- I can't quite 9 remember now if thememorandumwas preparedby 10 Mr. Tutein Preston or Officer Steelebut there 11 was a copy of a memorandum and a photograph 12 

### concerning that incident. 13 Q 

### Now after you received the 14 documentationfromCustoms, what, ifanything, 15 did you do in your investigation? 16 A 

### Excuse me? 17 Q 

### After you received the 18 documentation of the transportation from 19 Customs of this particularpackage, didyou do 20 anything else? 21 A 

### Yes, the first thing that I did, I 22 

### went through the 49 CFR regulation to make
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• 96 

### 1 sure that there was a violation. Because when 2 I talked to the Supervisor, Mr. Tutein 3 Preston, I remember asking him if the box that 4 

### was inside the aircraft had any hazardous 5 material labels and he toldme that there were 6 not any hazmat labels on the box, there was 7 not -- if I don't remember

-- I mean, I kind 8 of quite remember I think he also mentioned 9 there was not any documentation identifying 10 the contents of the boxes as hazardous 11 material. There were not any markings on the 12 box. And I believe that he also told me there 13 was not any material safety sheet available. 14 So for me, having any liquid, two 15 bottles of liquid in the box and no hazmat 16 marking, and based on my experience, I was 17 under the impression that we had a .hazmat 18 

### case. So I went to the regulation. I 

### 19 consulted regulation. 20 And I also remember him telling 21 that the two bottles were marked as -- it was 22 diesel fuel or UN. I can't remember the UN
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• 97
1 

### numbers but I think it was 1292, I think it 2 was, but they were not actually UN numbers. 3 It was NA1292, something like that. I would 4 

### like to see the there was a statement 5 

### concerning that. And I can't quite remember 6 

### those numbers. So if you have a copy of the 7 

### statement that I would be able to refresh, 8 

### because I conduct training investigation in 9 many places and it is hard for me to remember 10 all those names and numbers and classes. 11 MS. GEORGE: Yes, just one moment. 12 Your Honor, may I approach the witness? 13 JUDGE SULLIVAN: You may. 14 

### (WHEREUPON, THE DOCUMENT REFERRED 15 

### TO WAS MARKED AS GOVERNMENT'S 16 

### EXHIBIT NO. C-13 FOR 17 

### IDENTIFICATION.) 18 

### BY MS. GEORGE: 19 Q 

### I'm handing you what has been 20 marked for identification as Government's 21 Exhibit C-13. 22 A 

### Thank you very much.
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• 98
1 Q Do you recognize the document? 2 A Yes. Yes, ma'am, I do. 3 Q What is it? 4 A It is a copy of the statement that 5 I prepared concerning this particular 6 investigation. 7 Q And is this statement dated? 8 A It is dated April 18, 2010. 9 Q And if you would, turn to the 10 second page of the document. At the bottom of 11 the page, there is a signature. Do you 12 recognize that signature? 13 A Yes, ma'am, that is my signature 14 there. 15 Q Is this document identified as 16 Government's Exhibit C-13 a true and accurate 17 copy of a statement you prepared on April 18, 18 2010 regarding the coastal air transport 19 incident? 20 A Yes, ma'am, it is. 21 Q And I believed you indicated that 22 you needed a copy of your statement to refresh
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• 99 1 your recollection regarding the UN number of 2 the material transported. 3 A Yes, ma'am. As I was indicating 4 before, when I talked to Mr. Preston, he 5 mentioned that each one of the bottles was 6 labeled as fuel oil, UN number 1993, and that 7 it contained approximately 750 milliliters of 8 a liquid substance. 9 MS. GEORGE: Your Honor, at this 10 time I would like to admit into evidence 11 Government's Exhibit C-13
. 12 JUDGE SULLIVAN: Mr. Foster, do 13 you have any objection? 14 MR. FOSTER: That is the document 15 she just gave me? 16 JUDGE SULLIVAN: Yes. 17 MR. FOSTER: No, Your Honor. 18 JUDGE SULLIVAN: There being no 19 objection, Exhibit C-13 is hereby admitted. 20 (WHEREUPON, THE DOCUMENT REFERRED 21 TO, PREVIOUSLY MARKED AS 22 GOVERNMENT'S EXHIBIT NO. C-13 FOR
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• 100
1 IDENTIFICATION, WAS RECEIVED IN 2 EVIDENCE.) 3 BY MS. GEORGE: 4 Q Now, Mr. Bulted, did there ever 5 come a time when you contacted Coastal Air 6 Transport during your investigation? 7 A Yes, ma'am. We sent them a letter 8 of investigation, which we copy in the report 9 of investigation. And if I am not mistaken, 10 the letter I think it was sent sometime in 11 December, I think it was. 12 MS. GEORGE: Your Honor, may I 13 approach the witness? 14 JUDGE SULLIVAN: You may. 15 (WHEREUPON, THE DOCUMENTS REFERRED 16 TO WERE MARKED AS GOVERNMENT'S 17 EXHIBIT NOS. C-1 and C-2 FOR 18 IDENTIFICATION.) 19 BY MS. GEORGE: 20 Q Mr. Bulted, I am handing you what 21 has been marked for identification as 22 Government's Exhibits C-1 and C-2. Do your NEAL R. GROSS (202) 234-4433 COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com

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• 101
1 

### recognize the documents? 2 A 

### Yes, ma'am. This is a copy of the 3 letter of investigation that we sent to Mr. 4 

### Michael W. Foster. 5 

### JUDGE SULLIVAN: I'm sorry, sir. 6 Can you identify which document you are 7 

### talking about? 8 

### THE WITNESS: I am talking about 9 the letter of investigation, ma'am. 10 JUDGE SULLIVAN: What number? 11 

### THE WITNESS: It is Government 12 Exhibit Charlie-1, C-1. 13 

### JUDGE SULLIVAN: Thank you. 14 

### BY MS. GEORGE: 15 Q 

### And what is the date of the 16 letter? 17 A 

### It is December 11, 2009, ma'am. 18 Q 

### And Government Exhibit C-2, do you 19 recognize that document? 20 A 

### Whenever we sent the letter of 21 investigation, we send that through certified 22 

### mail and those there, the Exhibit C-2, those
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• 102
1 

### are copies of the photocopies of the 2 received, thepostal service received for this 3 particular letter. 4 

### MS. GEORGE: Thank you. Your 5 

### Honor, at this time, the Agencymoves to admit 6 

### into evidence Governments Exhibit C-1 and C-2. 7 

### JUDGE SULLIVAN: And I will note 8 

### that I think I need to have this witness 9 

### identify Exhibit C-1 as something that he 10 himself sent -- authored and sent or that it 11 

### is a true and accurate copy of what he 12 authored and sent. And if it is not, then I 13 

### need to know that, too. 14 

### MS. GEORGE: Yes, Your Honor. 15 

### JUDGE SULLIVAN: So I will reserve 16 

### your motion. 17 

### BY MS. GEORGE: 18 Q 

### Mr. Bulted, on Government's 19 Exhibit C-1, is this letter a true and 20 accurate copy of the letter of investigation 21 sent by you on December 11, 2009? 22 A 

### Yes, ma'am, it is.
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• 103
1 MS. GEORGE: At this time, the 2 Agency renews its motion to admit into 3 evidence Governments Exhibits C-1 and C-2. 4 JUDGE SULLIVAN: Mr. Foster, do 5 you have any objection? 6 MR. FOSTER: No objection, Your 7 Honor. 8 JUDGE SULLIVAN: There being no 9 objection, Exhibits C-1 and C-2 are hereby 10 admitted. 11 (WHEREUPON, THE DOCUMENTS REFERRED 12 TO, PREVIOUSLY MARKED AS 13 GOVERNMENT'S EXHIBIT NOS. C-1 and 14 C-2 FOR IDENTIFICATION, WERE 15 RECEIVED IN EVIDENCE.) 16 BY MS. GEORGE: 17 Q Now Mr. Bulted in the letter of 18 investigation sent to Coastal Air Transport on 19 December 11, 2009, you requested several type_s 20 of information. Is that correct? 21 A Yes. 22 Q And what did you request from
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• 104
1 

### Coastal Air? 2 A 

### We did request a copy of the 3 appropriate Materials Safety Data Sheet 4 showing the proper shipping, and the class 5 number, and the UN number and packing group, 6 

### and packing instructions for the item 7 described in the letter. In this particular 8 case, the item described was the two bottles 9 

### labeled as a fuel oil, UN 1993. 10 

### We also request copies of the 11 

### a1rway bills, shippers, and other relevant 12 

### documents associated with the shipment. A 13 

### copy of the hazardous material training 14 

### records for each individual involved in the 15 

### transportation of this shipment, a copy of the 16 

### hazardous material training curriculum for 17 

### Coastal Air Transport, and a description of 18 

### actions implementedtoprevent future incident 19 

### from this type, and any additional 20 documentation information that Coastal Air 21 

### Transport felt to be pertinent to the 22 

### investigation.
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• 105
1 Q 

### And did you in fact receive a 2 response from Coastal Air Transport? 3 A 

### Yes, ma'am, we did. 4 

### MS. GEORGE: Your Honor, may I 5 approach? 6 

### JUDGE SULLIVAN: You may. 7 

### (WHEREUPON, THE DOCUMENT REFERRED 8 

### TO WAS MARKED AS GOVERNMENT'S 9 

### EXHIBIT NO 

### c- 3 

### FOR 10 

### IDENTIFICATION.) 11 

### BY MS. GEORGE: 12 Q 

### Mr. Bulted, I am handing you what 13 

### has been marked for identification as 14 

### Government's Exhibit C-3. Do you recognize 15 

### the document? 16 A 

### Yes, ma'am, I 

### do. This is 17 

### Government C-3, Charlie-3. And this is a 18 letter of response or a letter of reply 19 received from Coastal Air Transport. 20 Q 

### And what is the date of Coastal 21 

### Air Transport's reply? 22 A 

### Excuse me?
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• 106 1 Q 

### What is the date of the letter? 2 A 

### It is January 14, 2010. 3 Q 

### And who has signed the letter? 4 A 

### Well, printed down there it says 5 

### Michael W. Foster. The signature there, I 6 cannot say if it is his or not but there is a 7 signature there. 8 Q 

### Thank you. Now did Coastal Air 9 Transport provide copies of the information 10 you requested inyour letter of response dated 11 December 11, 2009? 12 A 

### We did receive a copy of the MSDS 13 and I think there is a copy of that MSDS

-- 14 MSDS it stands for Materials Safety Data 15 Sheet. And I think there was a copy of that 16 MSDS attached to the report of investigation. 17 

### We did receive copies of the 18 airway bills. And we did not receive copies 19 of the training records of Coastal Air 20 Transport employees that were handling or 21 handled this particular shipment. We never 22 

### received those. And by training record, I
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• 107
1 

### mean hazardous materials training record. 2 Q 

### Did you receive any training 3 records? 4 A I 

### did receive a 

### training 5 certification from the shipper itself, which 6 is SGS, which is a company who offer the 7 shipment for air transportation. 8 Q 

### So your testimony is that you did 9 not receive training records for employees of 10 Coastal Air Transport. 11 A 

### No, ma'am, I never did. 12 Q 

### Thank you. 13 A 

### And we never received a copy of 14 thehazardousmaterial trainingcurriculumfor 15 

### Coastal Air Transport. We never received 16 that. 17 Q 

### Now did the documentation

-- 18 A 

### Excuse me. And the last items was 19 

### well not the last item but item number 20 

### five, we requested or we asked for a 21 description were any actions implemented to 22 

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• 108 1 

### nature. In the letter, his letter, that was 2 never addressed. 3 Q 

### Now did the documents provided by 4 Coastal Air satisfy your request for training 5

-- 

### hazardous materials training documents for 6 

### the company? 7 A 

### Not for the company. 8 Q 

### What type of training documents 9 

### were you seeking? 10 A 

### They were supposed to 11 

### concerning the commercial airplane's 12 protection of hazardous material. They are 13 the type of operators. You have what we call 14 or what the regulations calls "will not 15 carry, " which is an operator that will not 16 

### carry hazardous materials. And we have 17 another type of operator which is a will carry 18 hazardous material. 19 A 

### will not carry hazardous 20 

### material operator will not, basically 21 hazardous materials that were in his training 22 will be enough. And hazardous material
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• 109 

### 1 training means that company employees will 2 have to be trained to identify those items 3 that are found in cargo or checked baggage 4 

### that could be hazardous material. And of 5 course that training has to be documents. 6 A will carry hazardous materials 7 training will have to have more than that. 8 They have to learn how to ensure that the 9 shipping documents are prepared according to 10 a regulation, that the package is labeled, 11 marked as per the regulation, that the package 12 that is containing the hazardous material, it 13 is a specificationbox. In other words, it is 14 approved by the United Nations as a hazmat 15 p"erformance package. 16 

### Also, the will carry operator we 17 have to know the information that goes in the 18 shipping document. And they also have to will 19 be trained, which is a requirement, every 20 hazardous materials package goes onboard the 21 airplane has to be inspected prior to 22 accepting it. So a will carry will have all
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• 110 

### 1 those requirements. Whereas a will not carry, 2 which in this particular case Coastal Air 3 Transport is a will not carry, will not be 4 

### subject to those because they are not supposed 5 

### to be transporting hazardous material. 6 Q 

### Now if a 

### will not carry 7 transported hazardous materials, what training 8 requirements would they be required to have? 9 A 

### A will not carry, as I said 10 before, hazmat awareness training will be 11 enough for them. And that is how to identify 12 or be able to tell

-- 13 Q 

### To transport the package. 14 A 

### whether a package contains 15 hazardous material or not. And if it is 16 actually hazardous material or not. 17 Q 

### Are there any exceptions for will 18 not carry air carriers to carry hazardous 19 materials onboard their aircraft? 20 A 

### The only exceptions you are going 21 to find those

-- and I am going to cite the 22 regulation now. It is from the 49 CFR 175.10,
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• 111 1 if I am not mistaken. I cannot exactly 2 remember. And those are exceptions for 3 passengers. And those exceptions you are 4 going to find likeprobably acetone, you know, 5 small amounts of acetone for personal use; 6 toiletries such as hair spray, nail polish; 7 alcoholic beverages up to five liters and they 8 cannot go more than 70 percent alcohol by 9 volume. 10 There is also an exception there 11 which is not applicable to the passengers but 12 is applicable to aircraft batteries. They are 13 there, too. 14 And it is a long list there. In 15 order for me to tell you what is exempt and 16 what is not, I have to have a copy of the 17 regulations to be able to tell you. 18 Q From your knowledge, your 19 recollection, is there an exception for the 20 carriage of diesel fuel? 21 A Not that I know of under 175.10. 22 And let me say it again. I can't quite
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• 112 1 

### remember if I am making that citation 2 correctly. I think it is 175.10, I think it 3 lS. 4 Q 

### And during your investigation, did 5 you determine whether or not Coastal Air 6 Transport was a will carry or a will not carry 7 air carrier? 8 A 

### , That is part of the investigation. 9 And even working out of the Flight Standard 10 District Office in San Juan, I remember 11 

### talking to Inspector Joaquin Puntonet. And 12 one of the things we talked about, among other 13 things, was whether Coastal Air Transport was 14 certified to carry hazardous materials. And 15 we went through the flight standards 16 maintains a binder for each one of these air 17 carriers. And we remember going through the 18 Coastal Air Transport binder and we found 19 there it was a document there in which Coastal 20 AirTransport optednot to transport hazardous 21 materials. And I think it was a copy of that 22 document which was signed by them and also by
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• 113 1 the FAA. And that document is part of the 2 report of investigation that we did. 3 MS. GEORGE: May I approach, Your 4 Honor? 5 JUDGE SULLIVAN: You may. 6 (WHEREUPON, THE DOCUMENT REFERRED 7 TO WAS MARKED AS GOVERNMENT'S 8 EXHIBIT NO C-9 FOR 9 IDENTIFICATION.) 10 BY MS. GEORGE: 11 Q I'm handing you what has been 12 marked for identification as Government's 13 Exhibit C-9. Do you recognize the document? 14 A Yes, ma'am. That is the document 15 that I was talking about. 16 Q What is it? 17 A It is Exhibit C-9, Charlie-9, that 18 isa GovernmentExhibit identificationnumber. 19 And it is the non-transport of dangerous goods 20 airtransportationcertificationsignedbythe 21 FAA and also by 22 Q What air carrier is
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1 A by Coastal Air Transport in 2 which they indicated that they will not 3 transport commercial dangerous goods. 4 Dangerous goods is another term for hazardous 5 materials, hazmat. And there is also there 6 which says will transport any DG company 7 material they say no. 8 So as for this document, they 9 already will not carry hazardous material at 10 the commercial level. 11 Q Okay and what date is the 12 document? 13 A This document is dated

-- it has 14 two dates there. It has December. The FAA 15 special agent signed the document on December 16 20, 1999. And the Flight Standard District 17 Inspector, Principal Operations Inspector 18 signed it on December 30, 1999. 19 Q And to the best of your 20 recollection in the search that you and Mr. 21 Puntonet conducted, were you ever able to find 22 any additional documentation regarding Coastal
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1 Air Transport's status as a will or will not 2 carry air carrier? 3 A That was the only document that we 4 found. It is this document that I have here, 5 this copy in which they indicated that will 6 not transport hazardous material at the 7 commercial level. 8 Q Thank you. Now based upon the 9 information supplied by Coastal Air in their 10 letter of response at the time of this 11 incident did the companyhave properlytrained 12 employees to transport the package that is in 13 question? 14 A Well I never received any 15 hazardous material training records concerning 16 the company employees. I never did. So my 17 best guess is that they were not trained 18 properly. Or probably he forgot to send the 19 qocuments but we never received them. 20 Q Now how does an air carrier 21 properlyinspectpackages todeterminewhether 22 or not they contained hazardous materials?
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### 1 A 

### There is a checklist that each air 2 carrier will carry hazmat operator has to go 3 through. And when the shipper comes to him, 4 the shipper is the customer who offers the 5 shipment for airtransportation, whenhe comes 6 in, he brings the package alreadyprepared and 7 the shipping document. 8 

### The air carrier has a hazmat 9 trained person and some of the air carriers 10 they call him hazardous materials specialist 11 and other ones they call them a DG specialist, 12 whatever. And so that employee comes into the 13 truck where probably the cargo is already by 14 the loading dock. He or she comes in with a 15 checklist and go item by item, such as the 16 shipping documents containing the UN number, 17 the proper shipping name, the packing group, 18 the class number, the emergency contact 19 information number, the date the document has 20 

### been signed, if there is a consignee 21 information there, there is a consignor 22 information there. They inspect the package
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### 1 to make sure there is no leakage. There is no 2 

### damage to the package. That the packaging 3 material for the hazardous material is a 4 material, a packaging material that the 5 regulations prescribed for that particular 6 shipment. And so that is how they perform the 7 

### inspection. That is prior to accepting the 8 package. 9 Now once they get ready to load a 10 package on the aircraft, they conduct another 11 inspection and that inspection is conducted 12 

### for the purpose of determining that there is 13 no leakage or damage to the package. And the 14 labels that were previously noted there, they 15 are still there. And the marking and so on is 16 still there on the package. 17 Q 

### Now what would have been 18 considered reasonable steps to determine if a 19 package contains the proper shipping name, 20 labels, markings, on the outside of the 21 

### package? What should the air carrier have 22 

### done?
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### 1 A 

### Well if it is a will carry 2 operator and the shipment is prepared as per 3 the regulations, they would just accept the 4 

### package for air transportation of the 5 shipment. 6 Q 

### But if they are a will not carry 7 

### air carrier

-- 8 A 

### Now if it is a will not carry 9 operator and they know they cannot transport 10 hazardousmaterial at the commercial level and 11 they see a package that has hazmat labels, 12 markings, et cetera, et cetera, they are not 13 supposed to offer the package because they are 14 not a hazardous material will carry operator. 15 Q 

### Now let,s say that the package 16 doesn,t have markings or labels on the outside 17 of it, however, the carrier is aware of what 18 the package contains? 19 A 

### Well is the package aware I 

### 20 mean excuse me. If the air carrier aware that 21 the package contains possible hazardous 22 material, they have to refuse the shipment.
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1 Q Thank you. 2 A And when I say refuse, I mean 3 refuse for air transportation. 4 Q Now in you investigation of this 5 matter, didCoastal AirTransport everprovide 6 you with copies of notices to pilot-in7 commands related to the transportationof this 8 package? 9 A Well we knew

-- remember that I 10 told you that they would not -- they a will 11 not carry. So therefore a pilot notification 12 would not be available because they are not a 13 will carry. A pilot notification will be 14 available on those air carriers that are a 15 will carry. 16 Q Let's explore this a little bit 17 more. For will carry operators-- well let's 18 back up. I will strike that. 19 What are notices to pilot-in20 commands? 21 A For a will carry operator, the 22 notice to pilot-in-command contains
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• 120 1 information related to the hazardous material 2 that are going to be loaded on the aircraft or 3 that are loaded on the aircraft. And that 4 information consists of the name of the 5 hazardous

-- the proper shipping name of the 6 hazardous material, the UNnumber, thepacking 7 group, and the class number. 8 It also tells the pilot the 9 specific location where those shipments are 10 loaded on the aircraft, just in case there is 11 an incident on the aircraft and the pilot has 12 to go on the back of the aircraft to check, he 13 knows for sure where those packages are 14 loaded. 15 It also has information concerning 16 the emergency response information. So if 17 something happens onboard the aircraft, he 18 will be able to call back the company and find 19 out what information is available to mitigate 20 an incident being caused by a specific 21 shipment of hazardous material. 22 Now actually about packing groups, NEAL R. GROSS (202) 234-4433 COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com

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### 1 packing groups are numbers that are assigned 2 to hazardous materials. And you have Packing 3 Group I, Packing Group II, and Packing Group 4 

### III. 5 

### Packing Group I is a dangerous 6 hazardous material where Packing Group II is 7 a moderate danger, and then you have Packing 8 Group III, which is less dangerous. 9 Q 

### Now for any air carrier that 10 carries hazardous materials onboard the 11 aircraft, is there a requirement in the 12 hazardous materials regulations to have 13 documentation J.n the form of a Notice to 14 Pilot-in-Command? 15 A 

### Yes, ma'am. A will carry, they 16 are required by regulation to maintain copies 17 of those pilot notification. I cannot exactly 18 remember now if it is for 60 days or 30 days, 19 but they are required to maintain copies at 20 the original location when the hazardous 21 material is accepted for air transportation. 22 That is for departing flights.
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• 122 1 Now for incoming flights, and I am 2 working out of this one office. Now for 3 incoming flights into San Juan, the pilot 4 notification has to be available during all 5 the stages of that particular flight. But the 6 original notification will be kept at the 7 place where the flight originated. 8 Q And what is the significance of 9 this Notice to Pilot-in-Command? Is it 10 important? Is it an important document to 11 have? 12 A Well, it is important. 13 Q And why is it important? 14 A In the sense that I go back to 15 what I told you before. It tells you what the 16 hazardous materials are being transported in 17 the aircraft, the location where they are. It 18 also contains information related to any 19 specific mitigation information that might be 20 available in the event there is an incident or 21 accident. 22 Q Now for air carriers who transport
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1 hazardous materials, and we are going to go 2 back a littlebit here, what required training 3 are they required to have for their employees? 4 A The will carry operator, it is 5 something called functioning specific 6 training. Depending on the functions that are 7 being performed by that air carrier employee, 8 that is the type of training that is going to 9 be provided. 10 Now, 11 MR. FOSTER: I object, Your Honor 12 13 JUDGE SULLIVAN: What is the 14 basis? 15 MR. FOSTER:

-- to this line of 16 testimony. They have already established in 17 their Exhibit C-9 that we will not accept 18 hazardous materials. That should end it in 19 that respect, rather than talking about people 20 that have signed that they will carry 21 hazardous materials. I don't see the 22 significance of this testimony.
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### 1 JUDGE SULLIVAN: And as I 

### 2 understand your objection, it is on the 3 grounds of relevance. 4 

### MR. FOSTER: Yes. 5 

### JUDGE SULLIVAN: Ms. George, do 6 you have a response? 7 

### MS. GEORGE: I do, Your Honor. 8 Although Coastal Air Transport did designate 9 itself as a will not carry air carrier, the 10 facts of this particularhave beenproven that 11 in fact they disregard it, their designation, 12 and carried hazardous materials. 13 We are making an allegation as an 14 air carrier who in fact did carry hazardous 15 materials onboarda flight, theywere required 16 to have more than the general awareness 17 training that is required for a will not carry 18 air carrier. As a result, the testimony that 19 Mr. Bulted is providing todayprovides us with 20 the evidence that as a carrier who asserted 21 itself into the will carry arena, it was 22 required to have additional training that
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1 

### Coastal Air Transport in fact did not have in 2 

### violations of the hazardous materials 3 regulations. 4 

### JUDGE SULLIVAN: So essentially, 5 Ms. George, as I understandyour response, you 6 are saying that the FAA's position is that 7 

### once Coastal accepted the package and 8 transported, it basically transformed itself 9 into a will carry aircraft and had to abide by 10 the federal regulations. 11 

### MS. GEORGE: That is correct, Your 12 

### Honor. 13 JUDGE SULLIVAN: And thus, as a 14 result, you have cited Coastal Air with a 15 variety of violations that we are here to talk 16 about today, including violations that were 17 not proved by summary judgment. 18 

### MS. GEORGE: Yes, Your Honor. 19 

### JUDGE SULLIVAN: And I am looking 20 at Violations number 13 and 14 1 

### inparticular. 21 

### They talk about Pilot-in-Command 22 

### notifications 1 

### emergencyresponse information
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1 and in Violation number 10 and 11 and 2 Violation number 5 is potentially applicable. 3 Mr. Foster, do you have any final 4 additional information you would like to make 5 to the relevancy objection before the Court 6 rules? 7 MR. FOSTER: I think their 8 statement, Your Honor, that we will not accept 9 hazardous materials covers this. 10 JUDGE SULLIVAN: And can you tell 11 me why you think it would not be relevant, 12 given the fact that there has been violations 13 charged against Coastal Air that seem to be 14 right onpoint with this particulartestimony? 15 Are you saying the violations 16 simply should not have been filed against you 17 or that you disagreed with Ms. George's 18 assertion that she has the authority to file 19 them against you? Can you give me a sense of 20 where your thought process is on this? 21 MR. FOSTER: Mr. Bulted has 22 already testified that the people at SGS were NEAL R. GROSS {202) 234-4433 COURT REPORTERS ANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com

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1 in fact qualified as hazardous material 2 handlers. They gave Coastal Air these oil 3 samples. They were not labeled. They did not 4 have stickers on them. They were given to me 5 to the pilot, who loaded them on the airplane. 6 So there was notification. But the 7 notification was that these are oil samples, 8 they are not hazardous. And we trusted that 9 and we had no reason to think otherwise. 10 And so this whole line of 11 questioning now is going in a whole different 12 direction from what the actual incident 13 involved. 14 JUDGE SULLIVAN: So as I 15 understand your argument, and you will 16 obviously be allowed to develop this in your 17 own responsive case, Coastal Air essentially 18 got blindsided by a customer who failed to 19 accurately and adequately advise Coastal Air 20 about what it was being asked go ship. And as 21 a result, you are here today facing charges 22 that you think should not have been brought
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### 1 against you. 2 

### MR. FOSTER: That is correct, Your 3 Honor. 4 

### JUDGE SULLIVAN: Okay. I will 5 

### note your objection for the record. I will 6 respectfully overrule it. This is within the 7 heart of what the alleged violations go to. 8 And the question and inquiry in this 9 particular area will be allowed. 10 I will note, however, that we are 11 almost at the noon hour and it appears that 12 Mr. Bulted is only perhaps half-way through 13 this testimony for the day. 14 How much time do you, Ms. George, 15 think you will need for lunch? 16 

### MS. GEORGE: Your Honor, actually 17 the last questionbefore the objectionwas the 18 last question that we had in our direct 19 examination of Mr. Bulted. 20 

### JUDGE SULLIVAN: Well I may ask 21 you to expand on a few things and then we have 22 

### Mr. Foster's

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1 MS. GEORGE: Yes. 2 JUDGE SULLIVAN: cross3 examination, which may take some time. So how 4 much time would you like for lunch? 5 MS. GEORGE: I believe there are a 6 couple of eating establishments in close 7 proximity, if we could have 45 minutes to an 8 hour. 9 JUDGE SULLIVAN: Mr. Foster, would 10 an hour and 15 minutes be adequate for you? 11 MR. FOSTER: An hour would be 12 fine, Your Honor. 13 JUDGE SULLIVAN: Okay, I am going 14 to try for an hour. And since everybody seems 15 to dedicated to that, we will recess from noon 16 to 1:00 p.m. 17 Mr. Bulted, please come back to 18 the courtroom and reseat yourself in the 19 witness chair at one o'clock and we can 20 reconvene and continue with your testimony at 21 that time. 22 THE WITNESS: Yes, ma'am
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1 

### JUDGE SULLIVAN: With that, we can 2 go off the record and I will see you back in 3 an hour. 4 

### (Whereupon, the above-entitled 5 matter went off the record at 12:00 p.m. and 6 resumed at 12:01 p.m.) 7 

### JUDGE SULLIVAN: We're back on the 8 record in the matter of Coastal Air Transport, 9 

### Inc., docket number FAA-2011-1005. We went 10 off the record a little prematurely. All 11 parties previously identified remain in the 12 courtroom. And Mr. Arroyo

-- excuse me. Mr. 13 Bulted is still on the witness chair. 14 

### Mr. Foster, you were indicating 15 that you may have a change in the witness 16 lineup for the responsive testimony, if I 17 recall. 18 

### MR. FOSTER: Yes, Your Honor. I 

### 19 believe they have already testified to the 20 questions that I have. 21 JUDGE SULLIVAN: So you had listed 22 Officer Steele as a Respondent's witness. And
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1 

### now you are waiving having him stay and appear 2 on your behalf? 3 

### MR. FOSTER: Yes, Your Honor. 4 

### MS. GEORGE: Your Honor, if I may? 5 

### JUDGE SULLIVAN: Yes. 6 

### MS. GEORGE: Prior to or as Mr. 7 Arroyo was leaving the witness box, the Agency 8 did ask that the witnesses be available for 9 the remainder of the day. Our reasoning for 10 that is for possible rebuttal. 11 

### JUDGE SULLIVAN: And you are 12 welcome to keep them for your own purposes but 13 I need to assess for Mr. Foster whether he 14 also has a call upon these witnesses. Because 15 when you, Ms. George, asked your witnesses to 16 

### come and go, you can do that without 17 consultation of Mr. Foster, if in fact Mr. 18 Foster no longer has need of Officer Steele. 19 

### So Mr. Foster, thank you for 20 alerting us to that effect. I will note that 21 Officer Steele may be in attendance only as 22 Ms. George and he agree between themselves.
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### 1 Mr. Foster, we had talked very 2 briefly about when your witness might be 3 needed. And it looks like we still have Mr. 4 Bulted to finish testimony and then one other 5 witness from the FAA. 6 MS. GEORGE: 

### Two witnesses, Your 7 Honor. 8 JUDGE SULLIVAN: 

### Two witnesses. 9 Do you anticipate that you would be done with 10 your witnesses in your case in chief by this 11 afternoon or do you think you will be moving 12 into tomorrow morning? 13 MS. GEORGE: 

### I think we will 14 conclude today. 15 JUDGE SULLIVAN: 

### Okay. Do you 16 have any sense of how much time it would take? 17 MS. GEORGE: 

### Mr. Bulted and Ms. 18 Dye's testimony are the most lengthy of the 19 direct examinations that the Agency has. And 20 we are at the conclusion of Mr. Bulted's 21 direct examination. What is remaining is the 22 possible cross-exam and any redirect that
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1 would come from that. 2 JUDGE SULLIVAN: Okay. And then 3 4 MS. GEORGE: Mr. Puntonet's 5 testimony is limited innature and, therefore, 6 it shouldn't take much time. If we are 7 reconvening at one o'clock, my best estimation 8 is that we should be concluded about three or 9 so. 10 JUDGE SULLIVAN: Mr. Foster, do 11 you have a preference in terms of when you 12 testify as to when this other person might 13 testify? Because we could always take your 14 testimony first and have your next witness 15 come in tomorrow morning or we could take

-- 16 wait for your testimony and your witness come 17 1n late this afternoon. Which would you 18 prefer? 19 MR. FOSTER: If possible, I would 20 prefer the witness this afternoon, YourHonor. 21 JUDGE SULLIVAN: Okay. If you 22 could ask your witness to be available from
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1 

### 3:00 on, that would be helpful and we will try 2 and get him in before 5:00p.m. I believe we 3 are recessing today at 5:00. So we will see 4 if we can accommodate him in that way. 5 

### MR. FOSTER: Thank you, Your 6 Honor. 7 

### JUDGE SULLIVAN: Okay, anything 8 else from you, Ms. George? 9 

### MS. GEORGE: No, Your Honor. 10 JUDGE SULLIVAN: And Mr. Foster? 11 

### MR. FOSTER: No, Your Honor. 12 JUDGE SULLIVAN: Okay, with that, 13 we can go off the record and I will see you 14 all back in an hour. 15 (Whereupon, the above-entitled 16 matter went off the record at 12:04 p.m. and 17 resumed at 1:04 p.m.) 18 19 

### 20 21 22
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1 

### A-F-T-E-R-N-0-0-N S-E-S-S-I-0-N 2 

### (1:04 p.m.) 3 

### JUDGE SULLIVAN: We're back on the 4 record in the matter of Coastal Air Transport, 5 Inc. This 1s docket number FAA-2011-1005. 6 

### We have reconvened after a lunch 7 

### recess. All parties previously identified 8 have returned to the hearing room and our 9 witness, Mr. Juan Bulted has reseated himself 10 in the witness chair. Sir, you are still 11 under oath
. 12 Ms. George, I 

### believe you 13 indicated you had one more question or were 14 you finished? 15 MS. GEORGE: We were finished at 16 that point, Your Honor. 17 

### JUDGE SULLIVAN: Okay. I am going 18 to ask, and you are welcome to decline but I 19 am going to ask if you would consider the 20 following. 21 Mr. Bulted testified that there 22 

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### carriers and will not carry carriers. And it 2 

### appeared to this Court this Court would be 3 interested in knowing specifically a little 4 bit more about the will not carriers, the 5 distinction in terms of training. And then on 6 Exhibit C-9 proffered by the Government, I am 7 cur1ous if the Government is going to move to 8 

### admit C-9 and if so, when. And also since 9 this appears to be dated over a decade ago, if 10 

### Mr. Bulted would know whether or not there 11 

### have been changes to the regulations since 12 

### then and what notification air carriers have 13 

### regarding the changes, so that they can 14 

### maintain updated standards. 15 

### Would you care to inquire on those 16 

### matters? 17 

### MS. GEORGE: Yes, Your Honor. 18 

### JUDGE SULLIVAN: Thank you. 19 

### MS. GEORGE: First,

-- excuse me. 20 Your Honor, at this time, the Agency moves to 21 

### admit into evidence Government Exhibit C-9. 22 

### JUDGE SULLIVAN: Mr. Foster, do
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1 you have any objection to that motion? 2 MR. FOSTER: No, Your Honor. 3 JUDGE SULLIVAN: Exhibit 

### c-9 1s 4 hereby admitted. 5 (WHEREUPON, THE DOCUMENT REFERRED 6 TO, PREVIOUSLY MARKED AS 7 GOVERNMENT'S EXHIBIT NO. C-9 FOR 8 IDENTIFICATION, WAS RECEIVED IN 9 EVIDENCE.) 10 MS. GEORGE: Thank you, Your 11 Honor. 12 BY MS. GEORGE: 13 Q Mr. Bulted, we had previous 14 prior to our lunch recess had testimony 15 regarding the two different types of a1r 16 carriers, a will carry and a will not carry 17 air carrier for dangerous goods or hazardous 18 materials. Correct? 19 A Yes, ma'am. 20 Q And in your testimony you 21 testified about the requirements for a will 22 carry air carrier. Is that correct?
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• 138 1 A I was just about to get to that. 2 Q Okay, let's just start from that 3 point and then we will move forward. What are 4 the training requirements for a will carry air 5 carrier? 6 A A will carry air carrier, 7 depending on the functions that the employee 8 is performing, that is how the

-- that type of 9 function is going to determine the type of 10 training that he or she is going to get. 11 So if the person is going to be 12 reviewing shipping documents, that person is 13 go1ng to be trained specifically to that 14 function reviewing shipping documents. 15 If the person is going to be 16 performing function as an acceptance auditor, 17 hazmat acceptance auditor, thenthe individual 18 will be trained and the training will be aimed 19 specifically to that portion of the hazmat 20 training. 21 If the person is going to be 22 employed as someone who is responsible to
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1 ensure that the shipment that gets onboard the 2 aircraft is properly prepared. Then that 3 person, the training is going to be aimed to 4 that specific function. 5 Q Now the different types of 6 training that you just gave us examples of, 7 would they all be correctly couched under the 8 terms of function-specific hazardous materials 9 training? 10 A Excuse me? 11 Q Could the different types of 12 training that you just gave us examples of, 13 the personreviewing the documents, the person 14 who was the hazmat auditor, the person who was 15 reviewing the cargo, are those distinct types 16 of functions, do they all fall under the 17 category of function-specific hazardous 18 material? 19 A Oh, yes. Yes. 20 Q Okay. You can continue. thank 21 you. 22 A And so if you have someone who 1s
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### 1 operating a forklifter at a warehouse and that 2 person will be responsible for loading and 3 unloadinghazardousmaterial fromanaircraft, 4 then the trainee is going to be aimed to that 5 specific function. 6 Q 

### I'm going to stop you there. 7 Under the hazardous materials regulations, 8 what are the different types of training that 9 the regulations prescribe? I think we have 10 had discussions about function-specific and 11 general awareness. Are there any other types 12 of hazardous materials training? 13 A 

### Those are the only ones that I am 14 

### basically familiar with. But also you may 15 have training involving hazardous material 16 emergency response, which is another type of 17 training that is given to the air carrier 18 

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### 1 responsible, too, for responding to an 2 incident of a hazmat. So that is another type 3 of training that is involved. 4 Q 

### Okay, we are going to move 5 

### forward. Now for a will not carry air 6 carrier, what type of hazardous materials 7 training is required? 8 A 

### For a will not carry, basically 9 the hazardous materials awareness training 10 would be enough. Function-specific training 11 is now going to be present there. And when I 12 say function-specific, I mean any function 13 relatedto the air transportationof hazardous 14 material. 15 So the will not carry carrier will 16 not be responsible for reviewing shipping 17 documents or to ensure that the packaging 18 materials is that the one prescribed in the 19 regulations or that a pilot notification has 20 to be issued to the pilot-in-command because 21 the will not carry will not be performing none 22 of those functions. So the function-specific
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1 training is not required and just hazmat 2 awareness training or some other people call 3 them familiarization training will be enough. 4 Just to have an idea what a hazardous material 5 is and then to identify those so they can 6 detect and prevent any hazardous materials 7 from getting on the aircraft by a will not 8 carry carr1er. 9 Q Now if this will not carry air 10 carrier makes a determination that they will 11 carry hazardous materials, what training is 12 required of them? 13 A Rephrase the question again, 14 please. 15 Q If an air carrier who is 16 designated as a will not carry carries a 17 package that contains hazardous materials, 18 they make a determination that they will carry 19 a package, 20 A Well first of all, they have to 21 submit to the FAA a request that now they are 22 not a will not carry carrier so now they have
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### 1 the intention of becoming a will carry 2 carrier. So now they have to submit a request 3 to the FAA. They have to provide a hazardous 4 material manual and the FAA has to review

-- 5 the hazardous material branch has to review 6 that hazardous material manual to make sure 7 

### that it is in compliance with the regulation, 8 it gets reviewed and if it is found to be in 9 compliance with the regulation, then it gets 10 approved and now they are accepted as a will 11 carry operator. And part of being accepted as 12 a will carry involves having the function13 specific hazmat training. 14 Q 

### Okay and in your investigation of 15 coastal air transport, didyou find that their 16 designation changed from a will not carry to 17 a will carry prior to October 21, 2009? 18 A No, 

### ma'am because the only 19 document that they had was a document that I 20 show you that you showed me before, which is 21 the Government Exhibit C-9

-- C-1 and that was 22 the only document that they had in the binder
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### 1 that flight center has. And there was not any 2 other documents subsequent to that one in 3 which they had indicated that they had the 4 intention of becoming a will carry. 5 

### MS
. GEORGE: Thank you. I have no 6 further questions. 7 

### JUDGE SULLIVAN: Thank you. What 8 I am going to do is I am going to turn to you 9 

### next, Mr. Foster. And if your questions 10 identify a question this Court has in its 11 head, I will leave it to you to ask it. And 12 if not, I may ask this witness one or two 13 questions at the end. 14 Mr. Foster? 15 CROSS-EXAMINATION 16 BY MR. FOSTER: 17 Q 

### Good afternoon, Officer Bulted. 18 A 

### Good afternoon, sir. 19 Q 

### Okay, you hadmentionedpreviously 20 that there was a large list of flammable 21 materials and hazardous materials that could 22 be carried on an aircraft, a passenger NEAL R. GROSS (202) 234-4433 COURT REPORTERS ANDTRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com

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1 aircraft in small quantities and it covered 2 quite a few different articles. Is that true? 3 A Yes. 4 Q You had mentioned perfume and 5 cologne and mouthwash. So that would be part 6 of the will not carry familiarity, what you 7 can carry as far as quantity-wise, versus what 8 you can't carry quantity-wise. Like if 9 somebody came up with a two-gallon jug of say 10 nail polish remover, that would be instantly 11 turned down, where if they brought up a small 12 bottle of nail polish remover, that would be 13 allowed on the aircraft. Is that a true 14 statement? 15 A Yes. Yes, based on 175.10, those 16 items that you just described to me, they are 17 considered toiletries, which are for in small 18 quantities for personal consumption, for 19 personal use. 20 MS. GEORGE: Your Honor? 21 JUDGE SULLIVAN: Yes. 22 MS. GEORGE: We just wanted to
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### 1 clarify the record. I believe that Mr. Foster 2 

### incorrectly referred to Mr. Bulted's 3 

### testimony. It was Mr. Arroyo who testified 4 about the different types of materials under 5 175.10. 6 JUDGE 

### SULLIVAN: I respectfully 7 disagree with you counsel. I am looking at my 8 notes and this witness did talk about acetone 9 for personal use, toiletries such as hair 10 spray, nail polish, alcohol, and so forth. 11 And I will note that it is an objection but it 12 is being overruled. The answer will stand. 13 

### Mr. Foster, do you have other 14 questions? 15 MR. FOSTER: Yes, I do, Your 16 Honor. 17 BY MR. FOSTER: 18 Q 

### One statement you made earlier, 19 you said that Customs had observed the 20 

### shipment on the aircraft itself. Is that a 21 true statement, to your knowledge? 22 A 

### Well the report that I have, when
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### that day they report the conversation that I 2 had with Mr. Tutein Preston was that that box 3 

### was found onboard the aircraft. Whether it 4 was inside the aircraft or outside, I have no 5 evidence to support that. But that is what he 6 said, that the box was on the aircraft. 7 Q 

### Okay, that was Preston

-- 8 A 

### Was observed on the aircraft. 9 Q 

### Preston Tutein. And is Preston 10 Tutein going to be here today? 11 

### JUDGE SULLIVAN: Mr. Foster, the 12 

### question should be addressed to me. 13 

### MR. FOSTER: I'm sorry. 14 

### JUDGE SULLIVAN: And I believe 15 that Ms. George has already struck him from 16 her witness list. 17 

### MR. FOSTER: Okay, let it be known 18 that if it has alreadybeen testified to, that 19 the shipment was brought into the Customs 20 area. It was not discovered on the aircraft. 21 

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1 judgment argument. If you look at page nine, 2 number 16, you will note that the Court found 3 that as undisputed. 4 Oh, I'm sorry. I think that you 5 are talking about whether or not it was 6 transported from the cargo compartment to the 7 Customs agent. Is that right, Mr. Foster? 8 MR. FOSTER: No, Your Honor. 9 There was a statement earlier that it had been 10 transported it was discovered on the 11 aircraft
. 12 JUDGE SULLIVAN: All right, that 13 was part of the Notice of Complaint that you 14 have always challenged. 15 MR. FOSTER: The original 16 complaint and the testimony was that no, it 17 was brought into the area, the Customs area. 18 JUDGE SULLIVAN: Thank you. And 19 you are welcome to testify to that as well 20 during your own testimony. 21 MR. FOSTER: All right. 22 BY MR. FOSTER:
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• 149 1 Q 

### Mr. Bulted, did you ever actually 2 handle this shipment that came up from Statia? 3 A 

### No, sir, I didn't. 4 Q 

### Okay. Do you have any idea what 5 

### happened to that shipment? 6 A 

### Afterwards? 7 Q 

### Yes. 8 A I 

### have no idea, sir. 9 Q 

### And have you ever seen a report as 10 

### to the contents of that shipment? 11 A I 

### remember seeing that there was a 12 

### minor confusion when I 

### was doing my 13 investigation and that their report indicated 14 that each one of the bottles was labeled as 15 

### fuel oil UN 1993. And there was also 16 information related that was found on the 17 Materials SafetyData Sheet that describes the 18 item diesel fuel Class 3, NA 1993. 19 And I remember talking to Officer 20 Arroyo so we could clarify the information 21 

### related to the proper shipping. And I 22 remember receiving in my office it was a NEAL R. GROSS {202) 234-4433 COURT REPORTERS ANDTRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com

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### 1 laboratory certification, analysis 2 certification that apparently was obtained 3 

### from SGS in which indicated that in which 4 was the liquid was described as a diesel fuel 5 UN 1202. That is the only report that I seen 6 related to this particular liquid item that 7 was in the bottles. 8 Q 

### Do you still have a copy of that 9 report? 10 A 

### No, I don't but there should be a 11 copy, if I am not mistaken, in the report of 12 investigation that I did. 13 Q 

### Okay. We would like to have that 14 copy of it anyway. 15 You have already testified that 16 the SGS employees were certifiedfor hazardous 17 materials. Is that correct? 18 A At least based on the information 19 that you provide us in the letter of response. 20 There was a copy of a hazmat training 21 certification for an employee of SGS. 22 Q 

### Okay. And is it true that they
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1 also, this is their main business is doing oil 2 sampling and fuel sampling, and they regularly 3 ship stuff around the islands? 4 A Well that is something that I 5 cannot say if it is true or not because I have 6 not talked to them and asked them what their

- 7 - you know, the type of business they are 8 doing. I don't really know if it is just 9 limited to obtaining samples or whatever have 10 you. I don't really know. I don't have an 11 answer for that
. 12 Q Okay. You have testified that the 13 boxes in question or the single box in 14 question, first off, was in an approved 15 container. It was a certified box and the 16 bottles were certified and the packing 17 material was certified as DOT approved. 18 MS. GEORGE: Objection, Your 19 Honor. We don't recall Mr. Bulted testifying 20 about the contents of the package and whether 21 or not they were certified packaging or not. 22 JUDGE SULLIVAN: So you are NEAL R. GROSS {202) 234-4433 COURT REPORTERS ANDTRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com

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1 

### objecting to the way the question is posed? 2 

### MS. GEORGE: Yes. 3 

### JUDGE SULLIVAN: I will sustain 4 that objection. 5 

### Mr. Foster, if you want this 6 witness to testify about the box and whether 7 or not it was certified, you need to ask him. 8 

### MR. FOSTER: Yes, Your Honor. 9 

### BY MR. FOSTER: 10 Q 

### Mr. Bulted, you have some exhibits 11 in front of you there. If you could refer to 12 

### the picture, Government Exhibit C-8(f)
. It is 13 a color picture of a box. 14 A 

### Yes, sir. 15 Q 

### Can you read the statement at the 16 bottom of the box? 17 A 

### This package conforms

-- I don't 18 know if that is 49 CFR

-- I can't quite see. 19 It is kind of blurry, the printing there. 20 Q 

### Yes. 21 A 

### So I can't really see if it is 49 22 

### CFR or 40 CFR 173.4, something like that.
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1 Q That is correct. So from what you 2 see there, you would assume that that is a 3 standard box for shipping materials in. 4 A Well I am afraid that my answer is 5 in the negative because hazardous material 6 packaging, when they are approved

-- when a 7 packaging material, when it is approved for 8 shipping hazardous material, it is going to 9 have the information that is going to be in 10 the package is going to be a lot different 11 from this and it is going to have, in the case 12 of a fiberboard box, it is going to have a 4G 13 number, then it is going to have a slash, then 14 it is going to have another information which 15 1s going to identify solids or liquids 16 material and going to have

-- it is going to 17 have information pertaining, I think it is to 18 the year that the box was manufactured and was 19 tested. I think it is
. You know it is also 20 going to have a number which is going to tell 21 you -- it is going to have

-- in other words, 22 the box is going to be submitted to a drop
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1 

### test and it is going to have a number which is 2 going to make reference at what stage the box 3 was in compliance with the drop test. And it 4 1s also going to have a number, which is going 5 to identify the laboratory who conducted the 6 testing for that particular material to be 7 approved for shippinghazardousmaterial. And 8 in this particular case, that information is 9 not there. 10 Q 

### So it doesn't tell you what you 11 

### could ship in that box. It is an approved box 12 

### but they don't saywhat they are approved for. 13 A 

### In this case, I am going to have 14 

### to, I will have to seek more information to 15 

### make sure that

-- 16 Q 

### Okay. Let's go back to SGS as a 17 

### certified shipper. You testified that they 18 

### had no stickers on the box, there were no 19 

### flammable stickers or hazardous material 20 stickers on the box as it came in. And these 21 

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• 155 1 

### hazmat carrier, I would have to trust the 2 shippers who are certified when they give me 3 a shipment and they say this is non-hazardous, 4 they are oil samples. They are not labeled. 5 Would I have any reason to doubt what they 6 were saying? 7 A 

### Well, here comes what we were 8 talking about before about training. If you 9 had the proper hazmat awareness training, I 10 don't think you would have any problem in 11 

### determining that. And based on what the 12 

### information that they provided, even the 13 shipping documents that they offered you, if 14 you had that training, I don't think you would 15 have any problem in determining whether you 16 had a hazmat in that box or not. 17 Q 

### Okay, as an item shipped as non18 hazardous, there would not be documents. Am 19 I correct? 20 A 

### Of course, sir. 21 Q 

### So there would not be documents. 22 I would have no reason to open the box and I
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1 would not have the background to open the box 2 if it was not labeled flammable or hazardous. 3 I think your familiarity program, 4 and we have done this, is we have a large 5 poster at the counter and it has the different 6 packaging on it and the different signs that 7 are on certain boxes if they are flammable or 8 explosive or corrosive. And that is our 9 familiarity. And we have done that with our 10 employees, which I am one of. 11 So we can identify it based on the 12 label on the box in how we have to handle it 13 or not handle it. In this case, this box that 14 was brought up was identified as small bottles 15 of oil samples. They were not hazardous, they 16 were not labeled. There was no paperwork on 17 them because of that fact and they were given 18 to us as being non-hazardous. 19 MS. GEORGE: Objection, Your 20 Honor. Mr. Foster is testifying again and he 21 has not posed a question to the witness. 22 JUDGE SULLIVAN: Thank you. Mr.
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1 Foster, is this a preliminary part of your 2 question at this point? 3 MR. FOSTER: Yes, it is, Your 4 Honor. 5 JUDGE SULLIVAN: I will overrule 6 the objection. If you could ask the witness 7 a question based on this setup, that would be 8 helpful. 9 BY MR. FOSTER: 10 Q Okay. The question is, would we 11 be required to open this box up and inspect 12 it, not having the background, per se, to 13 consider it hazardous? Because we would have 14 no reason to carry a hazardous material. 15 So what I am getting at is what 16 would be our option and would we routinely 17 open any box that was given to us to see what 18 the contents were or would we trust the 19 people, the trained people, would we take 20 their word for it and take the package as it 21 was listed? 22 A You are asking me a question that
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1 

### I am not -- or I am in a position to tell you 2 what would be my recommendation based on that 3 scenario that you just described to me. But 4 

### I don't think I would be in a position to tell 5 

### you exactly how to do it. 6 I 

### think it would be the 7 responsibility of the air carrier whether to 8 conduct a search of the box or not to 9 determine if there is a hazardous material in 10 there or not. 11 Q 

### If it was in a small glass bottle 12 

### and 13 

### MR. FOSTER: Your Honor, I don't 14 

### have stickers for these. I would like to 15 enter these into evidence. 16 

### JUDGE SULLIVAN: And when you say 17 these, I see you are holding two different 18 objects in your hand. 19 

### MR. FOSTER: Yes, one is a bottle, 20 an empty bottle of aviation oil that we use in 21 

### the aircraft. The other bottle is an empty 22 bottle of Alpine Spring water.
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### 1 JUDGE SULLIVAN: Well it may be 2 just as easy for you to have these described, 3 as opposed to admitted into evidence. There 4 are times when people bring things that are 5 bulky or somewhat unusual and witnesses 6 typically are asked to describe them. 7 So why don't you take your first 8 bottle and if you think that there is a 9 relevant question to ask this witness about 10 it, you can hand that particular piece of 11 demonstrative evidence to the witness and 12 proceed. 13 

### MR. FOSTER: Yes, Your Honor. 14 

### BY MR. FOSTER: 15 Q 

### This is described as a one-ounce 16 17 

### JUDGE SULLIVAN: It wouldn't be 18 you describing it. It would be the witness. 19 

### MR. FOSTER: Oh. 20 

### JUDGE SULLIVAN: Because you want 21 it into the testimonial record. 22 MR. FOSTER: I see. NEAL R. GROSS (202) 234-4433 COURT REPORTERS ANDTRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com

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1 

### JUDGE SULLIVAN: Okay, so you 2 might want to approach the witness and hand 3 him the object in your right hand. We could 4 probably try one object at a time. 5 And I will note that Mr. Foster is 6 putting both objects next to the witness and 7 that is fine. 8 BY MR. FOSTER: 9 Q 

### Mr. Bulted, that first bottle 10 

### there, can you identify that? 11 A 

### From left to right or which one? 12 Q 

### The clear bottle. 13 A 

### Well 1n my hands I have what 14 

### appears to be a clear plastic bottle. It has 15 

### some printing on it. It says Crystal Geyser. 16 Q 

### Can you see the capacity of that 17 

### bottle? 18 A 

### Yes, 16.9 

### fluid ounces. 19 Q 

### Or I believe it says one pint

-- 20 1.05 

### pints. 21 A 1.05 

### pints or 500 

### milliliters. 22 Q 

### Okay, so this would be the size of
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1 the sample bottles, the oil sample bottles 2 that were brought up from Statia. 3 A The sample bottle that were 4 brought 1n the station? 5 Q The sample bottles in question 6 that were in the shipment that was 7 A No, those were glass bottles 8 Q Yes, they were. 9 A -- not plastic. And I think the 10 size of the bottle was a little bigger than 11 that
. 12 Q Okay, in the testimony they were 13 described as pint-sized bottles. 14 JUDGE SULLIVAN: May I just 15 interject? 16 So essentially, Mr. Bulted, you 17 are looking at a clear plastic bottle that is 18 typically sold on the public market for water. 19 THE WITNESS: Yes, ma'am. 20 JUDGE SULLIVAN: Okay, thank you. 21 And according to the label that you see on 22 there, the label indicates that it has or can NEAL R. GROSS (202} 234-4433 COURT REPORTERS ANDTRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com

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1 contain no more than 1.05 pints of water. 2 THE WITNESS: Yes. 3 JUDGE SULLIVAN: Okay, thank you. 4 MR. FOSTER: Thank you, Your 5 Honor. I am using this for size relationship 6 only. I had asked for the actual bottles to 7 be brought and to now they haven't been found. 8 JUDGE SULLIVAN: Mr. Foster, 9 aga1n, I know that in your witness list that 10 you filed in December of 2012 you made a 11 discovery request but that was after the 12 deadline for discovery had passed. Can you 13 tell me, if at all, when you made a formal 14 motion for discovery prior to the deadline of 15 the discovery ending, if at all? 16 MR. FOSTER: I don't recall, Your 17 Honor. It was in our witness list that was 18 sent up and I had asked for the bottles to be 19 present, the evidence. 20 JUDGE SULLIVAN: Well we can talk 21 about that at a sidebar. But essentially, 22 this particular case has beenbefore the court
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1 

### for a long time. And there was a lengthy 2 period of time for you to exchange discovery 3 with the FAA. And it appears that you have 4 

### missed that opportunity. 5 

### Putting in a request for discovery 6 

### less than

-- well in December of 2012 with a 7 

### trial date in January of 2013 really is not 8 

### utilizing the opportunities that were offered 9 

### to you. It is too late, essentially. 10 So the fact that you asked for it 11 

### in your witness list was, number one, an 12 improper request; and number two, it was 13 outside the deadlines that the Court provided 14 

### to the parties. We can talk about that a 15 

### little bit more. 16 

### But you will not be getting it 17 

### from this witness during this inquiry. 18 

### MR. FOSTER: Okay. 19 

### JUDGE SULLIVAN: So you want to 20 try and use this clear plastic bottle in your 21 inquiry to the best of your advantage at this 22 point. Do you have other questions about it?
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• 164 1 

### BY MR. FOSTER: 2 Q 

### Okay, let's put the plastic bottle 3 aside. And can you identify the blackplastic 4 bottle? 5 A 

### Well I have what I have here is a 6 dark plastic bottle. It has some printing on 7 

### it. It says AeroShell. It says oil W100PLUS 8 aviation oil. It is AE50 and U.S.

-- excuse 9 me, one U.S. quart/0.946 liters. 10 Q 

### Okay would a bottle like that of 11 aviation oil be routinely carried aboard an 12 aircraft? 13 A 

### In what sense? 14 Q 

### As a spare quart of oil so if you 15 run low at one of your destinations you have 16 it available? 17 A 

### Yes, it could be. Yes, sir, it. 18 could be. 19 Q 

### Thank you. You have also 20 testified that as a non-carrier, we are not 21 required to have the formal training program 22 for hazardous materials. And if we were to
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### 1 carryhazardous materials, it wouldhave to be 2 set up well in advance to get a training 3 

### program. It is not something you do in one 4 day or one week. Is that correct? 5 A 

### When you talk about formal 6 training, you are talking about

-- 7 Q 

### Formal training, yes. If we were 8 to shift from a non-carry to a carry, that 9 would not be a momentary decision on our part. 10 That would be probably a minimum of a month to 11 have a hazmat material program approved
. 12 A 

### Probably. 13 Q 

### I think we just need to go back 14 one more time to the SGS shipment here that 15 was presented. Again, without labels, with a 16 bottle the size of the clearbottle there, the 17 pint bottle, which probably wasn't completely 18 filled, if that was in fact oil samples, you 19 have testified the larger bottle, which I 20 believe is a one-quart capacity, which would 21 be twice the capacity of the small bottle, 22 would be fine to carry on the aircraft. And
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• 166 1 the smaller bottle with similar oil samples 1n 2 it would not be fine to be carried on an 3 aircraft. Is that correct? 4 A Are you talking about oil like 5 this type here? 6 Q Yes, oil samples. 7 JUDGE SULLIVAN: When you say this 8 type here, you are looking at the larger black 9 plastic bottle, sir? Okay, I see you nodding 10 your head. Is that a yes? 11 THE WITNESS: Yes. 12 JUDGE SULLIVAN: Okay, thank you. 13 THE WITNESS: But I see the clear 14 bottle like this and not having any 15 identification, let's sayjust a clearbottle, 16 no labels. Nothing at all, just a clear 17 bottle and you see a liquid there, I am sure 18 that an air carrier will have additional 19 questions to ask as to the contents of the 20 bottle. 21 Q It was already testified by an 22 Officer Steele that they opened the box when
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• 167 1 it arrived in customs, that it was closed when 2 they received it, which is the way it was 3 picked up in Eustatius. And it was presented 4 as oil samples, non-hazardous, no labels. The 5 pilot who picked it up was told that. So he 6 was notified what was in the box, oil samples, 7 non-hazardous, bypeople that hadgone through 8 a training program and do this on a regular 9 basis. 10 Would he have had any 11 responsibility to tear this box open and 12 actually see what was in it? And would he be 13 able to identify the contents out in the field 14 at a rural airport with no facilities around? 15 They don't have, I guess Customs officers or 16 Agriculture officers or trained people 1n 17 Statia like we do here. We are fortunate. We 18 have a multitude of trained people. 19 All I am asking is what would be 20 you take on the responsibility to ascertain 21 what was in the box and if I would be able, as 22 a lay person, to determine what was in the
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### 1 box. 2 A 

### As a lay person or as a 3 Q 

### I have no background. We have 4 

### already admitted that. I have no hazardous 5 material training in my folder. We will not 6 carryhazardous materials. That was presented 7 as a non-hazardous material with no labels to 8 

### observe. And it was carried in the cargo 9 

### compartment of the aircraft. There was no 10 

### spillage involved. There was no breakage. 11 They weren't plastic bottles like that. They 12 were heavier glass bottles as you have 13 probably seen or maybe you haven't seen. 14 A 

### I am still confused. Excuse me, 15 sir for 16 Q 

### Well the question is would a 17 reasonable person tear the box open when it 18 has been given to him by expert ground people 19 that do this as a job all the time and they 20 tell him it is small bottles of oil samples, 21 they are not hazardous? Would you question 22 

### it?
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### 1 If I handed you that bottle with a 2 liquid in it, would you know from the outside 3 if that was water, or if it was oil, or if it 4 was gasoline, or if it was nitroglycerine? 5 A 

### If I do not have the training 6 which helped me to make a determination 7 whether it is a hazardous material or not, I 8 am sure I am going to let the box go. 9 Q 

### Thank you. 10 A 

### Now, if I had the training and in 11 this case it could be hazmat awareness 12 training, then I would be able to pose 13 additional questions to find out or make a 14 determination as to whether that particular 15 item is a hazardous material or could be a 16 hazardous material or not. 17 Q 

### Well the prosecution has already 18 brought forth the exhibit saying that I don't 19 have the training, that I am a non-hazardous 20 carrier. So I have to trust the people that 21 are telling me that people that have the 22 background and the education as to what is in
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1 the bottle. And that is what you are saying, 2 that you would probably do the same thing. 3 You would allow it to come on if it was given 4 to you by somebody you knew, somebody you 5 trusted, somebody you knew was educated in 6 this particular industry. 7 I didn't see the 8 MS. GEORGE: Objection, Your 9 Honor. Mr. Foster is testifying again. 10 MR. FOSTER: Okay. 11 JUDGE SULLIVAN: The objection 1s 12 noted and sustained. 13 You can get all of this out, if 14 you like in questions, but it is not the time 15 for you to testify. And I want to make sure 16 you know that even though you are standing at 17 the podium making those comments now, none of 18 it is testimony. So you will have to repeat 19 it all once you get put under oath. 20 So, don't think that by making the 21 statements now it is part of the evidentiary 22 record. These are just questions that you are NEAL R. GROSS (202) 234-4433 COURT REPORTERS ANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com

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• 171 1 posing to this witness who 1s currently under 2 oath. 3 MR. FOSTER: Okay. 4 JUDGE SULLIVAN: Okay. So I think 5 we are all getting the drift as to what your 6 responsive defense is and that is helpful. 7 But Mr. Bulted 1s here to answer your 8 questions. 9 MR. FOSTER: I think the gist was 10 I was asking him what he would do in a similar 11 situation. And he said he would accept the 12 shipment. 13 JUDGE SULLIVAN: Mr. Bulted, was 14 that your answer? 15 THE WITNESS: Yes, ma'am. If I 16 don't have the training to make a 17 determination, the possibilities are that I 18 let it go because I don't know exactly what I 19 am dealing with. 20 MR. FOSTER: Thank you. I think 21 that is all, Your Honor. No further 22 questions.
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### 1 JUDGE SULLIVAN: 

### Actually, Mr. 2 Foster, I am going to ask you to consider 3 asking a few more questions. You are welcome 4 to decline. 5 I am still interested in finding 6 out what a will not carrier does to learn 7 throughout the years what changes there have 8 been in the law, if this witness knows. 9 And it would also be of assistance 10 to this Court to find out specifically what 11 this witness**believ~s** 

### the liability should be 12 for an offense like this, if this witness has 13 the expertise for it. 14 

### MR. FOSTER: Thank you, Your 15 Honor. 16 JUDGE SULLIVAN: 

### Do you care to 17 inquire? 18 BY MR. FOSTER: 19 Q 

### Officer Bulted, you have already 20 briefly described the non-carry hazardous 21 material familiarity course. We have posters 22 that you folks supply us with that we train
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• 173 1 our employees with that have various labels on 2 them and descriptions of articles. And what 3 we can carry and what we can't carry. And we 4 have the regulation 175.10 that you have 5 quoted that list the sundry articles that we 6 can accept for shipment and also the alcohol 7 that we can receive for shipment and various 8 other things, the hair spray and nail polish 9 remover. The list goes on and on. And this 10 is what we train our employees. Is this the 11 training, the familiarity training that you 12 discussed? 13 A It involves parts of that, yes. 14 MR. FOSTER: I'm sorry, Your 15 Honor, what was the second question? 16 JUDGE SULLIVAN: If you are 17 interested in inquiring if this witness has an 18 opinion regarding the liability of a carrier 19 such as we have describedmistakenly taking on 20 a hazardous shipment. 21 MR. FOSTER: Okay. 22 BY MR. FOSTER:
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1 Q Officer Bulted, are you aware of 2 the financial fines that are available for 3 violation of the hazardous materials 4 regulations? 5 A I want to tell you the minimum and 6 the maximum

-- 7 Q That is what

-- 8 A -- for a violation. The minimum 9 is $250, I think it is, per violation. And 10 the maximum I think it is $55,000 per 11 violation
. 12 Q I believe that is correct. The 13 minimum 1s correct. I believe the maximum is 14 also correct. 15 If you had an airline with a 16 violation that had multiple violations in the 17 previous year or five years or ten years, 18 would you go to the minimum fine for that 19 airline or would you go to the maximum fine? 20 A Well, I would have to analyze the 21 situation on a case-by-case basis. But I will 22 tell you that if the company had a previous
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### 1 history of violations, that is going to be 2 taken into consideration and the penalty, it 3 is going to go up because of the history of 4 violations that the company had. 5 Q 

### You are going to throw the book at 6 him to make sure he doesn't do it again? 7 

### A Well that is not exactly what I 8 mean. But what I meant is that is what the 9 regulations say. 10 Q 

### Thank you. Now on the other side 11 of the question, if you have an operator that 12 has been in business for 35 years that has no 13 violations, no incidents or accidents, and no 14 hazmat problems, and you had a first offense 15 and it appeared to be a questionable offense, 16 in other words, theyweren't certain that they 17 were even carryinga hazardous material, would 18 you tend to give them the maximum fine or the 19 minimum fine? 20 A 

### Well sure we are going to take 21 that into consideration but I tell you that 22 that is what is expected from the company. NEAL R. GROSS (202) 234-4433 COURT REPORTERS ANDTRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com

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1 And when I am talking about a company, I am 2 talking about an air carrier. And that 1s 3 expected from them, operating in an 4 environment which is safe. So it is expected 5 from them. 6 So I am sure that we will consider 7 that probably as, not as mitigating 8 circumstance, but that is going to help you 9 possibly to help us to judge your attitude of 10 total compliance. But I am sure that, as I 11 said before, each incident has to be analyzed 12 by the circumstances of each incident. There 13 might be aggravating circumstances of that 14 particular incident or could be mitigating 15 circumstances. I don't know. You know, I 16 don't have a -- if I was going to tell you 17 what kind of mitigating circumstances or 18 aggravating circumstances, I cannot tell you 19 all the mitigating circumstances that we 20 consider because each case is different. 21 Q If you had that same operator and 22 it appeared that it was a questionable
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1 violation, would you even just send him a -- 2 react with a warning letter to let him know 3 that we saw this; we didn't like it; don't do 4 it again? And knowing that particular 5 operator had been 1n business for 35 years 6 with a clean record, and he would probably 7 take your advice, would that be sufficient, to 8 just write a warning letter and say we have 9 seen this; this is the facts; we don't you to 10 do it again; and be done with it? 11 A Let me, with all due respect, what 12 do you mean by a questionable violation? 13 Q Well a violation where there was a 14 question whether the operator was aware that 15 he was carrying a hazardous material. I mean, 16 we get thousands of boxes a year. We don't 17 open the boxes. Some we open if we suspect 18 there is something in it. 19 If we get a box that somebody that 20 we consider suspect or questionable, we will 21 open it and make sure it doesn't have drugs in 22 it or hazardous material because we don't want
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• 178
1 

### to have our airplanes confiscatedby some sort 2 of a drug reaction that we would find. And 3 they can do that. If they find drugs on you 4 

### airplane, you can get your equipment 5 confiscated and you don't get it back. 6 So if we have a question, we see a 7 shady individual coming up giving us a box, we 8 will open it right then and there. But if we 9 have college educated people that we have 10 worked with for years give us a box and they 11 tell us what is in it and we accept what they 12 

### have told us and what you have already 13 testified that you would accept what they told 14 us, that to me is a very questionable 15 violation. And I think you couldpoint that

- 16 - I think it would be wise to point that out 17 

### in a letter and say we saw this. We don't 18 like it. Don't do it again. Be a little more 19 

### careful next time. And knowing this 20 particular operator is going to abide by your 21 

### recommendations, that would probably be 22 sufficient.
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• 179 

### 1 A 

### Well we have, when we do conduct 2 an investigation, we have several ways of 3 

### processing the violation. And of course I 4 will tell you again it is done on a case-by5 case basis and not every case is alike. 6 So we had the option of sending a 7 letter of correction that if the safety of the 8 flight crew, passengers of the aircraft is not 9 injeopardy, we might proceed with a letter of 10 

### correction. We may also proceed with a 11 warning letters. And the last course -- well 12 

### not the last course of action but the other 13 course of action that we have is a civil 14 penalty. 15 

### JUDGE SULLIVAN: I'm sorry, with a 16 what? 17 

### THE WITNESS: The other course of 18 action is a civil penalty. 19 

### JUDGE SULLIVAN: Thank you. 20 

### BY MR. FOSTER: 21 Q 

### Officer Bulted, do you have any 22 reason that you would go to the maximum? You
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• 180
1 

### have already testified that the $250 is the 2 

### minimum fine. If you had to give a fine, 3 rather than a letter of correction or a letter 4 of warning, which probably would have been 5 appropriate, would you have any reason to go 6 to $59,600 as a first offense for a small 7 airline which that is a big

-- would be a big 8 chunk out of their annual revenues? 9 A 

### Well in this particular case, we 10 

### have a passenger on an aircraft. That is 11 

### human life. We had pilot on the aircraft. 12 

### That is a human life. We had an aircraft. We 13 had an air carrier that is not supposed to be 14 transporting hazardous material because they 15 opted not to transport hazardous material. 16 And that air carrier, even though 17 it is not supposed to transport hazardous 18 

### material, they did it. So for us, we take 19 that into considerationand that is considered 20 aggravating circumstances. 21 

### So based on the it is not a 22 

### formula where we have what is called a NEAL R. GROSS (202) 234-4433 COURT REPORTERS ANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com

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1 sanction calculation sheet. 2 JUDGE SULLIVAN: I'm sorry, sir. 3 What was that? 4 THE WITNESS: We have a sanction 5 calculation sheet where we factor in that 6 information and then comes out the penalty 7 that the air carrier might be liable for. 8 BY MR. FOSTER: 9 Q I believe it is --don't they call 10 that their matrix? I have heard that. 11 A Well the matrix is part of that. 12 Q But would you -- you have already 13 testified that you would lean towards a 14 corrective action letter or a warning letter. 15 As far as a fine, if you were prosecuting this 16 case, would you lean towards the minimum fine 17 or would you lean towards the maximum fine? 18 A Based on the facts that I stated 19 to you before, I think I will lean towards the 20 maximum. 21 Q The maximum fine? 22 A In this particular case. NEAL R. GROSS {202) 234-4433 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com

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1 Q 

### For a first offense? 2 A 

### It is a first offense, yes. 3 

### MR. FOSTER: Okay, no further 4 questions, Your Honor. 5 

### JUDGE SULLIVAN: Thank you. Ms. 6 

### George, do you have any redirect? 7 

### MS. GEORGE: Yes I do, Your Honor. 8 And it will be brief. 9 

### REDIRECT EXAMINATION 10 BY MS. GEORGE: 11 Q 

### Mr. Bulted, if you would, could 12 you locate Government's Exhibit C-3? It 13 should be in front of you. 14 A 

### Yes, ma'am. 15 Q 

### And of the items that were 16 provided to you in response to your letter of 17 investigation, could you please identify what 18 is listed under the enumerated number two? 19 A 

### Copies of the bill of lading from 20 the shipper, copies of a cargo manifest were 21 held by U.S. Customs in Saint Croix. 22 

### MS. GEORGE: Your Honor, may I
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1 

### approach? 2 

### JUDGE SULLIVAN: You may. 3 

### THE WITNESS: And these iterns were 4 correctly listed as oil samples. That is what 5 it says on the letter. 6 

### JUDGE SULLIVAN: Thank you. 7 

### (WHEREUPON, THE DOCUMENT REFERRED 8 

### TO WAS MARKED AS GOVERNMENT'S 9 

### EXHIBIT NO. C-5 FOR 10 

### IDENTIFICATION.) 11 BY MS. GEORGE: 12 Q 

### I'm handing you what has been 13 marked for identification as Government 14 Exhibit C-5. Do you recognize the document? 15 A 

### Yes, ma'am. This document is it 16 has the Government Exhibit C

-- is that five? 17 Q 

### Yes, that's five. 18 A 

### And it also have on the lower 19 right-hand side, has the letters IOP 9. And 20 this is one of the items of proof that I 21 provided with the report of investigation. 22 Q 

### And if you can, and I understand
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1 

### that the copy may be a little difficult to 2 read at the top, can you make out the title of 3 this document? 4 A 

### Ma'am from this I can't see 5 

### here. It says laboratory samples. But what 6 

### is written after that or printed after that, 7 

### I cannot 8 Q 

### Before. Two lines above it. 9 A 

### Two lines above? 10 Q 

### Yes. 11 A 

### I can't hardly see what is there 12 

### because there is nothing there. 13 

### MS. GEORGE: Your Honor, I 14 

### apologize for the copies. 15 

### JUDGE SULLIVAN: I will note that 16 

### Counsel has re-approached the witness and 17 

### given him another document, which he 1s 18 

### looking at now. Counsel, do you want to 19 

### identify what the witness is looking at? 20 

### MS. GEORGE: Yes. What I have 21 

### handed the witness is a copy of IOP 9. 22 BY MS. GEORGE:
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• 185 1 Q 

### I'm handing you another copy of a 2 document. 3 A 

### Yes, ma'am. This one I can see a 4 lot better than the

-- this is the original 5 document that I provided. 6 

### MS. GEORGE: Okay and I will hand 7 it to the Judge. 8 

### JUDGE SULLIVAN: Okay, Counsel, 9 just so I know. This is another

-- is this an 10 original or a better 11 

### MS. GEORGE: That is the original. 12 JUDGE SULLIVAN: Okay, it looks 13 like a copy of an original, if I may so bold 14 to say but it appears to be a better copy with 15 more clear writing on the top. And you are 16 asking this witness to compare these two 17 identical documents? 18 

### MS. GEORGE: Exactly, Your Honor. 19 JUDGE SULLIVAN: Okay, I will hand this back 20 to you so that you can show it to Mr. Bulted. 21 BY MS. GEORGE: 22 Q 

### Mr. Bulted, on the copy that I
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• 186
1 have just handed to you that is identified on 2 the right-hand corner as IOP 9,

-- 3 A Yes, ma'am. 4 Q Are you able to read the writing 5 that appears at the top of the document? 6 A Yes, it says bill of lading. 7 Q Thank you. And on the document, 8 does it indicate the type of material that was 9 transported? 10 A It says it has besides

-- I mean 11 below the words number and size of sample. It 12 says two by one quart diesel fuel, hazard 13 Class 3, UN number 1202, Packing Group III. 14 Q And does this document contain an 15 air carrier that carried the samples that are 16 described above? 17 A Yes, it identifies the carr1er 18 there as Coastal Airline. And then 1n 19 parenthesis you have the words "Mike Foster." 20 Q And is the document dated? 21 A 10/21/09. 22 Q The document that has been
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• 187
1 

### identified as Government C-5, originally IOP 2 9, where did that document come from? 3 A 

### May I take a look at my special 4 

### agent statement? 5 

### JUDGE SULLIVAN: Are you saying 6 

### that you don't remember, Mr. Bulted? 7 

### THE WITNESS: I know I got this 8 

### document from Customs but it was either 9 

### Customs or from Mr. Arroyo but I can't quite 10 remember exactly. 11 BY MS. GEORGE: 12 Q 

### Could you look at Government 13 

### Exhibit C-3 again? It is the Coastal Air 14 January 14, 2010 letter. 15 A 

### Excuse me. What was the exhibit 16 

### number again? 17 Q 

### C-3. 18 A 

### C-3. Yes, I got it here. 19 Q 

### And under item number two, could 20 you explain what it says that Mr. Foster was 21 providing to you? 22 A 

### Copies of the Bill of Lading from
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• 188 1 

### shipper, copies of our cargo manifest were 2 held by U.S. Customs in Saint Croix. 3 Q 

### And the Government's Exhibit C-5, 4 whichyou have identifiedas being titledBill 5 of Lading, is that the bill of lading that is 6 referenced in Government's Exhibit C-3? 7 A 

### Yes, ma'am, it appears to be. 8 

### MR. FOSTER: Objection, Your 9 Honor. 10 JUDGE SULLIVAN: What is the basis 11 of your objection? 12 MR. FOSTER: Relevance 13 contradiction, actually. 14 The one says a cargo manifest is 15 different from a bill of lading. These are 16 not the same documents. 17 

### JUDGE SULLIVAN: Okay, so I look 18 at Exhibit C-3, paragraph two. It asserts, at 19 least, that you, Mr. Foster, were providing a 20 copy of the bill of lading from a shipper. 21 Are you saying that Exhibit C-5 is not that 22 bill of lading but a different bill of lading?
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• 189 1 

### MR. FOSTER: No, Your Honor, it 2 says cargo manifest. We did not -- this bill 3 of lading that they have here was contained 4 

### inside the box. It was not on the box and it 5 

### was not presented to me in Saint Eustatius. 6 

### I have not seen this. This was not available. 7 

### I wrote my cargo manifest based on 8 

### what they told me was in the box. They said 9 

### oil samples and that is what I had to go on. 10 

### But they are two different forms. 11 

### JUDGE SULLIVAN: Okay, I 12 

### understandyour objection. You are welcome to 13 cross-examine this witness about where he 14 forms his belief about this bill of lading and 15 then you are going to have an opportunity to 16 testify about when you saw this, why you saw 17 it, how you saw it. 18 

### So your objection is noted and 19 respectfully overruled at this time and the 20 answer will stand. 21 

### Ms. George, do you have other 22 questions?
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• 190 1 

### MS. GEORGE: I do, Your Honor. At 2 

### this point, the Agency moves to admit 3 Government's Exhibit C-5 into evidence. 4 

### JUDGE SULLIVAN: Mr. Foster, do 5 you have any objection to the motion to admit 6 C-5? 7 

### MR. FOSTER: The only objection I 8 have is testimony that this is an actual 9 document or if this was something that was 10 written up after the fact. It is not typed. 11 

### It is not I don't see the name of the 12 person that wrote it up on here. 13 

### JUDGE SULLIVAN: Do you want to 14 voir dire the witness at this point regarding 15 C-5? 16 

### MR. FOSTER: The witness? I don't 17 believe he has any background into this. 18 

### JUDGE SULLIVAN: Well you are 19 welcome to inquire of this witness regarding 20 that. And so what I am going to do is I will 21 reserve the motion to admit at this time, 22 

### subject to recross-examinationbyMr. Foster.
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• 191 1 Did you want to move to admit C-3 2 at this time? 3 MS. GEORGE: C-3, I believe was 4 admitted. 5 MR. FOSTER: We have no objection 6 to that, Your Honor. 7 JUDGE SULLIVAN: You're right, it 8 was admitted. Thank you. 9 MS. GEORGE: Yes. 10 JUDGE SULLIVAN: I'm sorry, no it 11 wasn't. There was no motion to admit it
. 12 MS. GEORGE: Oh. Well, at this 13 time, we move to admit C-3. 14 JUDGE SULLIVAN: Okay. And Mr. 15 Foster, I heard that you had no objection? 16 MR. FOSTER: No objection. 17 JUDGE SULLIVAN: C-3 is hereby 18 admitted. 19 (WHEREUPON, THE DOCUMENT REFERRED 20 TO, PREVIOUSLY MARKED AS 21 GOVERNMENT'S EXHIBIT NO. C-3 FOR 22 IDENTIFICATION, WAS RECEIVED IN
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### 1 EVIDENCE.) 2 

### MS. GEORGE: Thank you, Your 3 Honor. 4 BY MS. GEORGE: 5 Q 

### Mr. Foster, if you would

-- excuse 6 

### me. Mr. Bulted, if you would, locate the 7 package of photographs I 

### Government Exhibit 

### c8 8. 9 A 

### Yes. 10 Q 

### And if you would please, turn to 11 C-8 (f)
. 12 A 

### Yes. 13 Q 

### I believe during your testimony, 14 your cross-examination with Mr. Foster, you 15 indicated that the photograph is of the box in 16 question and this photograph indicates that 17 the package conforms to 49 CFR 173.4. 18 Correct? 19 A 

### That is what it says there. Yes, 20 rna'am. 21 Q 

### Are you familiar with 49 CFR 22 

### 173.4?
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1 A That 49 CFR is about that thick. 2 JUDGE SULLIVAN: When you say that 3 thick, how many inches are you talking about? 4 THE WITNESS: It's about two, 5 probably three inches thick. 6 JUDGE SULLIVAN: I will note that 7 the witness originally put up his fingers 1n 8 a width and he is describing it as two to 9 three inches. 10 THE WITNESS: Exactly. Well not 11 exactly, approximately
. 12 JUDGE SULLIVAN: Thank you, sir. 13 THE WITNESS: It would be really 14 hard for me to know every section that are 1n 15 the regulations. But I guarantee you that 16 when I get back to be at the office, I am 17 going to find out exactly what it is. 18 MS. GEORGE: Your Honor, may I 19 approach the witness? 20 JUDGE SULLIVAN: You may. And I 21 will note that Ms. George is showing the Court 22 a -- NEAL R. GROSS (202) 234-4433 COURT REPORTERS ANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com

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1 MS. GEORGE: A copy of 49 CFR 2 173.4, edition 2/1/2009. 3 JUDGE SULLIVAN: And I will note 4 it appears to be the entire chapter of 49. 5 And you are welcome to show that to the 6 witness. 7 MS. GEORGE: Thank you. 8 JUDGE SULLIVAN: You're welcome. 9 THE WITNESS: 173.4. 10 BY MS. GEORGE: 11 Q Mr. Bulted, have you had an 12 opportunity to look at the title of 179.4? 13 A 173.4. 14 Q Excuse me, 173.4. 15 A Small Quantities for Highway and 16 Rail. 17 JUDGE SULLIVAN: I'm sorry, sir? 18 THE WITNESS: Small Quantities for 19 Highways and Railroad, R-A-I-L. 20 BY MS. GEORGE: 21 Q And the package in this case, was 22 it transported by highway?
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1 A 

### It was transported in an aircraft. 2 Q 

### And was it transported by rail? 3 A 

### No. 4 Q 

### Thank you. You had some questions 5 about civil penalty in this particular case. 6 

### MS. GEORGE: May I approach, Your 7 Honor? 8 

### JUDGE SULLIVAN: You may. 9 

### (WHEREUPON, THE DOCUMENT REFERRED 10 

### TO WAS MARKED AS GOVERNMENT'S 11 

### EXHIBIT NO. C-17 FOR 12 

### IDENTIFICATION.) 13 

### BY MS. GEORGE: 14 Q 

### I have handed you what has been 15 marked for identification as Government's 16 Exhibit C-17. 17 A 

### Yes, ma'am. 18 Q 

### Do you recognize the document? 19 A 

### This is Appendix C of the sanction 20 guidance for hazardous material enforcement. 21 Q 

### Would you turn with me to page C22 13?
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• 196 1 A 

### Yes. 2 Q 

### And could you explain for the 3 Court what appears on this page underneath the 4 section identified as paragraph H? 5 A 

### Will you please

-- 6 Q 

### What is this chart that appears on 7 page C-13? 8 A 

### Okay. The title for the H section 9 there, it says sanctions applicable to a1r 10 carrier and commercial operator, passengers 11 and crew members
. 12 Q 

### Now for under that, for a1r 13 carr1er, the chart that appears underneath it. 14 What is the title of the chart? 15 A 

### Air Carrier and Other Aircraft 16 Operator Violations. 17 Q 

### Okay and during your 18 investigation, did you have an opportunity to 19 determine what type of air carrier Coastal Air 20 Transport was? In terms of what is it a Group 21 I, a Group II, a Group III or IV air carrier? 22 A I 

### don't remember the
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• 197
1 

### classification was a Group I or II. And in 2 order for me to remember that, I will have to 3 go 4 Q 

### Would you turn with me to page C5 

### 14? 6 A 

### Yes. 7 Q 

### Under paragraph 9, subsection (a)
. 8 A 

### Air carrier and other aircraft 9 operator groups? 10 Q 

### Yes. 11 A 

### Yes. 12 Q 

### And looking at the definitions of 13 the Group I, II, III and IV air carrier 14 groups, are you able to determine what 15 category Coastal Air Transport falls into? 16 A 

### If I am not mistaken and I can't 17 quite exactly remember, but I think it was a 18 

### Group II. And I think it was based on the 19 Dunn and Bradstreet report. I think it was 20 based on that, I think. 21 Q 

### Okay, let's look at the definition 22 of Group II. It says a Group II has revenue NEAL R. GROSS (202} 234-4433 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com

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• 198 1 

### of less than a hundredmillion dollars andhas 2 50 or more pilots and 25 or more aircraft. 3 A 

### As I indicated to you before, I 4 don't exactly remember. 5 Q 

### Okay. Now let's turn back the 6 

### previous page to page C-13. The chart that 7 appears on C-13, could you explain what that 8 is for the Court? 9 A 

### C-13, the Chart there says air 10 carrier and other aircraft operator 11 

### violations. Those are on that side you are 12 going to have the different sections of 49 CFR 13 that could be violated. And you have a 14 specific citations there. 15 For instance, you have proper 16 acceptance of hazmat for air transportation. 17 And under that, you have quantity, labeling, 18 marking, packaging, and shipping papers. And 19 then you have 49 CFR 175.30(a-1) through-- I 

### 20 mean dash four. Failure to inspect hazmat 21 shipment properly, improper storage, securing 22 of hazmat on aircraft, failure to provide
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• 199
1 

### hazmat training, maintain records of training 2 or meet minimum requirements for hazmat 3 

### training, using and training properly, 4 training hazmat personnel 5 

### JUDGE SULLIVAN: I'm going to stop 6 you, sir. This is not something that needs to 7 

### be read out loud to the Court. The Court has 8 

### a copy. 9 

### Counsel, do you have another 10 question? 11 MS. GEORGE: Yes, I have an 12 additional question. Thank you, Your Honor. 13 BY MS. GEORGE: 14 Q 

### Mr. Bulted, is this chart that 15 appears on page C-13 divided by group of air 16 carrier? 17 A 

### Yes, ma'am. 18 Q 

### And is $250 the minimum sanction 19 that is applicable for Group I, II, III, or IV 20 air carriers? 21 A 

### Yes. 22 Q 

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• 200
1 

### take a moment and take a look at it? 2 A 

### Yes. 3 Q 

### And $250 is a minimum sanction 4 that is listed on this chart? 5 A 

### Well, ma'am, the $250 comes out of 6 49 

### CFR. 7 Q 

### I understand but in our sanction 8 

### guide, do we have 9 A 

### Not in here. 10 Q 

### Thank you. 11 A 

### Not in here. 12 

### MR. FOSTER: Objection, Your 13 Honor. 14 

### JUDGE SULLIVAN: What is the basis 15 of your objection? 16 

### MR. FOSTER: Coastal Air, if you 17 look up above that, it has H sanctions 18 applicable to air carrier commercial operator 19 

### crew members
. Coastal Air Transport is a 20 Subchapter S corporation. Everything feeds 21 

### through to the owner/operator, which is 22 

### myself.
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• 201 1 JUDGE SULLIVAN: Well I think that 2 the document speaks for itself. And as I 3 understand it, this is a guideline that the 4 FAA uses to assess penalties. So the chart 5 that is below the letter H on page C-13, 6 Government's Exhibit C-17, is essentially a 7 chart, as I understand it, that the FAA has 8 put together to provide guidance to its 9 employees on how to assess civil penalties 10 when such is imposed. 11 You may object to the way the FAA 12 assesses civil penalties, but the document 13 itself basically speaks for itself. It is 14 neither right nor wrong. It simply is a 15 guidance to the FAA employee. 16 And I am not sure that you have a 17 relevance objection that could stand. So I 18 will overrule the objection but I certainly 19 will look forward to your testimony about what 20 your corporation is, how it is formed, and why 21 you think this guidance should or should not 22 be utilized in your case. NEAL R. GROSS (202) 234-4433 COURT REPORTERS ANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com

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• 202 1 

### Ms. George, do you have other 2 questions to ask this witness? 3 

### MS. GEORGE: Just one further 4 matter and not so much a question at this 5 

### point. The Agency moves to admit into 6 evidence Government's Exhibit C-17. 7 

### JUDGE SULLIVAN: Mr. Foster, do 8 

### you have any objection to the admission for C9 

### 17 as an illustrative exhibit, essentially? 10 

### MR. FOSTER: Is it the one we just 11 discussed? No, I have no objection, Your 12 Honor. 13 

### JUDGE SULLIVAN: Exhibit C-17 1s 14 hereby admitted. 15 (WHEREUPON, THE DOCUMENT REFERRED 16 

### TO, PREVIOUSLY MARKED AS 17 GOVERNMENT'S EXHIBIT NO. C-17 FOR 18 

### IDENTIFICATION, WAS RECEIVED IN 19 

### EVIDENCE.) 20 

### MS. GEORGE: No further questions, 21 Your Honor. 22 JUDGE SULLIVAN: Okay. I'm going
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• 203
1 to ask a couple of questions of you, Mr. 2 Bulted, before I turn to Mr. Foster for 3 recross. 4 And let's start with the plastic 5 black bottle that is before you. And as I 6 understood your testimony during cross7 examination, this is in fact a typical quart 8 container for aviation oil. 9 THE WITNESS: Yes, ma'am. 10 JUDGE SULLIVAN: And is it fairly 11 similar, if not exactly the same in size and 12 shape as a quart of oil that one might buy at 13 a grocery store or a fuel station for a car, 14 just to give a visual analogy? 15 THE WITNESS: Yes. 16 JUDGE SULLIVAN: Okay. There has 17 been an assertion by the Respondent in this 18 case that it was misinformed by SGS, the 19 company that requested shipment on 20 Respondent's aircraft or the two glass bottles 21 of liquid fluid. In your experience as an FAA 22 hazmat employee, have you seen in the past in
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• 204 

### 1 other circumstances cases where a company has 2 misinformed an aircraft carrier about its 3 

### shipment? And if so, can you describe an 4 example of that? 5 THE WITNESS: 

### I remember a case 6 was about a year ago -- well, it involved an 7 air carrier, which I am not going to identify 8 

### now. But there was a company who offer a 9 shipment whichwas identifiedas containing

-- 10 it was a fuel pump, I think it was. And I was 11 conducting an inspection and as the cargo was 12 corning out of the unit load device, which is 13 a container that comes out of the aircraft, I 14 see this package corning on the conveyor belt. 15 And the package was stained, meaning that 16 somehow it appeared to have a liquid inside. 17 And we pulled the package to the side and we 18 opened the package and instead of having a 19 fuel pump inside, there were in fact, I can't 20 quite remember, it was six cans of an aerosol, 21 which is a spray. It was later identified as 22 a hazardous material. However, the company NEAL R. GROSS (202) 234-4433 COURT REPORTERS ANDTRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com

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• 205
1 

### offered it as a fuel pump. 2 

### JUDGE SULLIVAN: In that instance, 3 to the best of you recollection, was the 4 

### company contacted and prosecuted by the FAA? 5 

### THE WITNESS: Yes, they were 6 

### investigated and I don't know if the case was 7 

### ever closed or not. But they were 8 investigated for offering undeclared hazardous 9 material for air transportation. 10 

### JUDGE SULLIVAN: And in that 11 

### particular case, to the best of your 12 recollection, what prosecution enacted, if 13 any, against the air carrier? 14 

### THE WITNESS: The air carrier

-- I 15 don't remember if the air carrier was cited. 16 I think the air carrier was cited for 17 

### accepting improperly prepared hazardous 18 material. Meaning, they accepted shipment of 19 hazardous material which was not properly 20 declared, marked, and shipping documents 21 prepared for the shipment, if I am not 22 mistaken.
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• 206 1 But of a few of those cases, that 2 is one that I remember most. 3 JUDGE SULLIVAN: In the inquiry 4 that you have answered from both the FAA and 5 the Respondent in this case, you have 6 identified that a will not carrier still has 7 an obligation to check for hazmat materials in 8 order not to accept them and in order not to 9 carry them. Is that correct? 10 THE WITNESS: Yes. 11 JUDGE SULLIVAN: In a circumstance 12 where a will not carrier business accepts 13 hundreds of packages per month, what is, in 14 your opinion, the general awareness training 15 that teaches or helps those carriers identify 16 successfully all of the packages that they are 17 see1ng, without having to open all of them? 18 THE WITNESS: Well it depends on 19 the trainingprogram that theyhave, that they 20 have submitted to the FAA. And basically, it 21 involves being able to -- well let me go back 22 and rephrase.
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• 207
1 On the training

-- in the intended 2 training, they tell the FAA how they are going 3 to do it to find out whether something that is 4 being offered for transportation is hazardous 5 material or not. And it teaches the employee 6 such things as the presence of a label, hazmat 7 label, which is Class 1, 2, 3, 4, 5 or through 8 9, whatever. It also, part of the training 9 might involve like scuba diving equipment, 10 which contains compressed gas. So if an 11 employee processing passengers sees that a 12 passenger comes in with a cylinder, big 13 cylinder, that employee is going to, through 14 the training that employee has received, is 15 going to be able to determine whether that 16 cylinder has compressed gas inside or not. 17 And another thing might be 18 information written on a document. Let's say 19 for instance, alcohol or alcoholic beverages. 20 If you see a package or a box marked rum and, 21 based on the training that the individual had, 22 would be able to question the passenger or the
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• 208
1 

### customer to find out whether that drum that 1s 2 in that box is regulated or not. 3 

### So training, depends on how the 4 training is being provided, it plays a big 5 role inmaking a determination if something is 6 a hazardous material may be or may not be. 7 

### JUDGE SULLIVAN: Turning your 8 attention to Government's Exhibit C-8(a) 9 through (I) , there are photographs of the 10 exterior of the shipment in question before 11 the court today. On pages C-8(a) as in apple 12 and C-8(b) as in boy, looking at those two 13 photographs and knowing about the training 14 that a will not carrier business would have, 15 what, if anything, on the outside of those two 16 pictures would alert a trained employee that 17 something was wrong, if anything? 18 THE WITNESS: I am looking at the 19 two photographs and in IOP 5(a), it has some 20 labels there. And those labels has some 21 written information on it that I can't quite 22 read because these are copies.
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• 209 1 

### JUDGE SULLIVAN: Well I am asking 2 you to look at the two photographs on -- 3 

### THE WITNESS: This photograph, 4 

### ma'am. I don't have the color photographs. 5 

### JUDGE SULLIVAN: You don't have. 6 I am going to hand to you what the Court has. 7 These are color

-- large color photographs 8 marked C-8(a) as in apple and C-8(b) as 1n 9 

### boy. Looking at those two photographs of the 10 exterior of the package, can you identify for 11 us what would have triggered a response from 12 a trained hazmat employee working for a will 13 not carrier airline? 14 

### THE WITNESS: Is nothing here that 15 can trigger that. Nothing. No label. 16 

### JUDGE SULLIVAN: So there 1s 17 nothing externally in those pictures that 18 would trigger

-- 19 

### THE WITNESS: Not in these 20 pictures. 21 JUDGE SULLIVAN:

-- a response? 22 There was -- and I am going to ask
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• 210
1 

### you to hand that document back to me. Thank 2 you, sir. 3 

### In your investigation of this 4 case, did you also investigate

-- it sounds 5 like you had some contact with SGS. I see you 6 nodding your head. Is that a yes? 7 

### THE WITNESS: We had

-- there was 8 an investigation that we conducted against 9 that company and I don't remember if it was 10 related to this incident or another incident. 11 

### JUDGE SULLIVAN: Okay, thank you. 12 

### Mr. Foster, do you have any recross of this 13 witness? 14 

### MR. FOSTER: Yes, Your Honor. 15 

### RECROSS-EXAMINATION 16 

### BY MR. FOSTER: 17 Q 

### Officer Bulted, there seems to be 18 some confusion over bill of lading and cargo 19 

### manifest. What are your concerns on the 20 differences between the two? 21 

### Isn't it true that the bill of 22 lading would be prepared by the shipper and
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• 211
1 the cargo manifest would be prepared by the 2 airline? 3 A Well of course the cargo manifest 4 will be prepared by the airline because it is 5 a document that 1s requested by

-- when I 6 request it, it is required by Customs. 7 Q And the bill of lading would be 8 prepared by the shipper? 9 A Now there, in this particular 10 case, I don't know if the bill of lading would 11 be prepared by the shipper or by the air 12 carrier. That is something that I don't know. 13 Q The copy we have is not signed by 14 anybody and I question the validity of it. 15 JUDGE SULLIVAN: Mr. Foster, when 16 you say the copy that we have, are you 17 referring to Exhibit C-5? 18 MR. FOSTER: C-5. That is the 19 bill of lading? Yes, Your Honor. 20 JUDGE SULLIVAN: Do you have a 21 question of this witness regarding C-5? 22 MR. FOSTER: Well we did. We
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• 212
1 haven't seen this before. 2 JUDGE SULLIVAN: I believe it was 3 provided to you as part of the pre-hearing 4 disclosure. So you have had a copy in your 5 possession, at least. 6 MR. FOSTER: Okay, we don't from 7 the whereabouts where it came from. It was 8 probably inside the box because it wasn't on 9 the outside of the box and it wasn't presented 10 to us. 11 JUDGE SULLIVAN: Well that is 12 testimony by you. 13 MR. FOSTER: You are correct. 14 JUDGE SULLIVAN: And so I don't 15 really want to use Mr. Bulted's time on the

-- 16 BY MR. FOSTER: 17 Q Mr. Bulted, do you know what, they 18 have the UN ID number of 1202 on here. Do you 19 I don't see that listed in our other 20 literature on fuel oils. Are you aware of the 21 fuel oil ID numbers? 22 A The

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• 213
1 Q 

### On the bill of lading, it refers 2 to 1202. 3 A 

### Let me -- there appears to be some 4 confusion about this document here. The bill 5 of lading and I am going to make reference to 6 the Government Exhibit C-3,

-- 7 Q 

### C-3, yes. 8 A 

### -- which is the letter of reply 9 

### from Coastal Air Transport. If you read up 10 there, it says in response to your letter 11 received January 4, 

### 2010, we offer the 12 following as requested. And in the letter, 13 which has a printed name of Mr. Foster, item 14 

### number two he is identifying or not 15 identifying, he is indicating to me that he is 16 providing copies of the bill of lading from 17 the shipper, which is this here. 18 

### JUDGE SULLIVAN: And I see you are 19 holding up for the Court's review a copy of

-- 20 THE WITNESS: Exhibit C-5, ma'am. 21 JUDGE SULLIVAN: Thank you. 22 BY MR. FOSTER:
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• 214
1 Q 

### And as you continue along that 2 line, it says copies of the cargo manifest 3 were held by U.S. Customs. These items were 4 correctly listed as oil samples. 5 A 

### That's what you indicated in the 6 letter of reply. 7 Q 

### On this last document the 8 

### prosecution gave us, C-17, do you have a copy 9 of that? That is several pages. It is about 10 ten pages long. 11 A 

### I don't see copies of that here. 12 JUDGE SULLIVAN: I can hand you my 13 copy, Mr. Bulted, if you would like to use it. 14 THE WITNESS: Thank you, very 15 much. 16 

### JUDGE SULLIVAN: You're welcome. 17 BY MR. FOSTER: 18 Q 

### Can you read on page C-2 number D, 19 violation of the HMRs, the bottom line 20 starting in Section 5124 of the statute? 21 A 

### It says Section 5124, the attached 22 is Congress prescribed criminal penalties for
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• 215 

### 1 a willful violation of the Federal Hazardous 2 Material Transportation law of the hazardous 3 

### material. A willful violation requires 4 

### evidence of both knowledge of the laws and 5 regulations and an intent to violate them. 6 Q 

### Do you believe there was intent to 7 

### violate the laws on this shipment that was 8 brought up? 9 A 

### Now you are placing me in a 10 position that I am not in your mind to think 11 what you were thinking or not you but what the 12 company was thinking at the time that the 13 shipment was accepted, whether there was the 14 intention of transporting or not transporting 15 the hazardous material. I mean I cannot see 16 me thinking as what you were thinking about at 17 

### that particular moment. You know what I am 18 saying? I am not in a position to -- 19 Q 

### I understand that. You have 20 alreadytestifiedthat youwouldhave accepted 21 the same box under the same conditions. 22 A 

### Probably.
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• 216 1 

### MR. FOSTER: And that is all. 2 That is all I need to know. And you would not 3 have an intent to violate the laws. 4 

### Okay, I think that is it. No 5 further questions. 6 

### JUDGE SULLIVAN: Thank you, Mr. 7 Foster. 8 Ms. George, do you have any final 9 redirect? 10 

### MS. GEORGE: I do, Your Honor. 11 May I approach the witness to retrieve the

-- 12 

### JUDGE SULLIVAN: You may. Chapter 13 49 CFR. Yes, you may. 14 

### RE-REDIRECT EXAMINATION 15 

### BY MS. GEORGE: 16 Q 

### Mr. Bulted, if you would, please 17 locate your color copies and turn to 18 Government Exhibit C-8(a). 19 

### MS. GEORGE: Your Honor, may I 20 approach? 21 

### JUDGE SULLIVAN: You may. 22 MS. GEORGE: Your Honor, I am NEAL R. GROSS {202) 234-4433 COURT REPORTERS ANDTRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com

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• 217 1 

### showing you a copy of 49 CFR 173.4(a). 2 

### JUDGE SULLIVAN: Thank you. And 3 you are welcome to show that to the witness. 4 BY MS. GEORGE: 5 Q 

### Mr. Bulted, do you recognize the 6 illustration contained at 173.4(a)? 7 Is it the same illustration that 8 appears 9 A 

### Yes, ma'am, it is the same 10 illustration. 11 Q 

### that appears on Government 12 Exhibit C-8(a)? 13 A 

### Yes, ma'am, it 1s. 14 Q 

### And is the illustration that 1s 15 contained at 173.4(a) a hazardous material 16 communication label? 17 A 

### Yes. It is on -- that label is a 18 requirement under 173.4(a) for accepted 19 quantities. 20 Q 

### And air carriers with general 21 awareness training, would they have received 22 

### trainingonrecognitionofhazardousmaterials
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• 218
1 communication labels? 2 A Oh, yes. 3 MS. GEORGE: Thank you. No 4 further questions, Your Honor. 5 JUDGE SULLIVAN: Thank you. Mr. 6 Foster, do you have any final recross, based 7 on the redirect? 8 MR. FOSTER: I'm sorry, I missed 9 the intent of that last question. 10 JUDGE SULLIVAN: I'm sorry, too, 11 sir. Do you want to talk to your co-counsel 12 about that? 13 MR. FOSTER: All right. I am 14 trying to find the tablet that lists our sheet 15 of hazmat signs. This is a new one to me. 16 Yes, I have one question. 17 RE-RECROSS-EXAMINATION 18 BY MR. FOSTER: 19 Q Mr. Bulted, this sign that is on 20 here, this circled E, is that contained on the 21 standard charts that we are given as hazmat 22 charts?
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• 219 1 A You are talking about

-- what 1s 2 the chart number? 3 Q Well the identification charts 4 that we were given to put up at our counters. 5 This is a new one to me. I 6 haven't seen it before. I just wondered if 7 you can let me -- 8 A There is a lot of our labels that 9 are included in that chart. And I can't 10 remember exactly what are the labels that are 11 photographed on that chart or that are 12 included in that chart. 13 Q So you don't believe that this is 14 on the

-- 15 A And the chart is

-- 16 Q -- on the familiarization charts 17 that were provided with

-- 18 JUDGE SULLIVAN: Excuse me, Mr. 19 Foster. Excuse me. I can't have both you and 20 Mr. Bulted talking at the same time because 21 the record won't pick it up. 22 Mr. Bulted, could you finish
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• 220 1 answering the question? And then, Mr. Foster, 2 you are welcome to ask a second question. 3 THE WITNESS: Yes, ma'am. I was 4 indicating that the chart is a big document. 5 I don't know exactly what are the dimensions 6 but I think it is more than 11 by 14, if I am 7 not mistaken, 11 inches by 14 inches. And 8 there is a lot of information on that chart 9 pertaining to labels and signs. And I think, 10 if I am not mistaken, I think that it is 11 printed on both sides, I think it is. I am 12 not sure or one side. 13 And I just have no idea of how 14 many labels and the types of labels that are 15 there, besides the basic hazardous 16 communication labels which are Class 1, 2, 3, 17 4, blah, blah

-- excuse my language. 18 BY MR. FOSTER: 19 Q So this label here would not be on 20 the small chart for familiarity purpose? 21 A As indicated before, I don't know 22 if it is there or not. I don't remember
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• 221
1 seeing it there. Maybe it is there. Maybe it 2 is not. I cannot tell you right now at this 3 particular moment if it is there or not. 4 Q Okay, you can look back at that 5 picture C-8(a). Do you have that in front of 6 you? 7 A Yes. 8 Q The first one. It appears to me 9 that the label has been partially torn off, 10 that they were possibly reusing this box. In 11 fact, I am looking at the C-8(b). They have 12 shipping labels 13 MS. GEORGE: Objection, Your 14 Honor. It calls for speculation. 15 JUDGE SULLIVAN: I'm going to 16 sustain the objection in the sense that this 17 appears to be testimonial at nature at this 18 point, Mr. Foster. What you want to do is ask 19 this witness questions. For example, you can 20 ask the witness if he believes the label is 21 incomplete in photograph C-8(a)
. You can ask 22 the witness if he believes things should be
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• 222
1 

### there that aren't there and so forth. But for 2 you to just testify or -- it is not testimony 3 because you are not under oath but for you to 4 simply narrate your opinions about it, isn't 5 using this witness's time on the stand. 6 

### MR. FOSTER: I understand, Your 7 Honor. 8 

### JUDGE SULLIVAN: All right. 9 

### BY MR. FOSTER: 10 Q 

### Does it appear to you, Mr. Bulted, 11 that this label is incomplete? 12 JUDGE SULLIVAN: And are you 13 referring to the picture in Exhibit C-8(a)? 14 BY MR. FOSTER: 15 Q 

### C-8(a) the circled E. 16 A 

### Well I can tell you from looking 17 at the picture that part of the red stripes 18 are missing there. There is a portion of the 19 red stripes that are missing. 20 Q 

### And to your knowledge, what is the 21 definition of that label? 22 A 

### As I indicated before, I think it
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• 223 1 is for accepted quantities. I think it is. 2 JUDGE SULLIVAN: I'm sorry. For 3 what? 4 THE WITNESS: Accepted quantities. 5 JUDGE SULLIVAN: Thank you. 6 BY MR. FOSTER: 7 Q Would that mean small quantities 8 properlypackaged? What wouldbe the accepted 9 quantities for oil samples? 10 A Accepted quantities? 11 Q Yes. 12 A In order for me to be able to tell 13 you that information, I would have to have the 14 copy of the probably of the MSDS or see a copy 15 of the laboratory analysis. 16 Q Okay and would that have been 17 available to the crew at the time for a no 18 carry airline? 19 A What do you mean? 20 Q Would that information have been 21 available? 22 A The analysis, the chemical
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• 224
1 analysis or the MSDS? 2 Q Well you said the exempted 3 quantities. This label says that there is 4 exempted quantities in here, which would seem 5 to indicate that there was a certain quantity 6 that was exempted fromhazardous materials and 7 that labels on here indicating there is 8 materials here but they are not hazardous in 9 this quantity. 10 A The label is not saying that is 11 not a hazardous material. It says that it is 12 accepted quantities. 13 Q It is accepted quantities? 14 A Accepted quantities. 15 Q Okay, similar to the oil bottle in 16 front of you, the black bottle, that would be 17 an accepted quantity on the aircraft? 18 A This here? 19 Q Yes. 20 A Well, I go back and I tell you 21 that I need to see the material safety data 22 sheet to make a determination if this item
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• 225
1 here was a hazardous material or not. So I 2 don't have that information so I cannot tell 3 you if the contents that are here are 4 classified as a hazardous material, if there 5 was a content in there because, of course, 6 this is empty now. 7 MR. FOSTER: Sure. 8 JUDGE SULLIVAN: And I will simply 9 note for the record that the witness has been 10 discussing the black plastic quart bottle 11 presented to him as demonstrative evidence
. 12 Mr. Foster. 13 BY MR. FOSTER: 14 Q And you have already testified 15 prior that you wouldn't have a problem 16 carrying that on the aircraft? 17 A What this here? 18 Q Yes. 19 A Well this here is part of the 20 aircraft operation probably. Probably the 21 aircraft is consuming more than it should. 22 MR. FOSTER: No further questions,
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• 226 1 Your Honor. 2 JUDGE SULLIVAN: Thank you. Ms. 3 George, any final redirect? 4 MS. GEORGE: Just one question, 5 Your Honor. 6 FURTHER REDIRECT EXAMINATION 7 BY MS. GEORGE: 8 Q There has been testimony that 9 Coastal Air Transport is a will not carry air 10 carrier. Correct? 11 A Yes, will not carry. 12 Q As a will not carry air carrier, 13 was Coastal Air Transport allowed to carry 14 accepted quantities of hazardous materials? 15 A They were not allowed because they 16 are a will not carry. 17 MS. GEORGE: Thank you. No 18 further questions. 19 JUDGE SULLIVAN: Thank you. Thank 20 you, Mr. Bulted, for your testimony. it 21 appears to be complete. You are hereby 22 excused.
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• 227 1 

### MR. BULTED: Thank you very much. 2 

### JUDGE SULLIVAN: Folks, it appears 3 we have time for a brief recess. Before we go 4 off the record, it is about ten to three. And 5 I know that the FAA has another witness to 6 call. 7 

### MS. GEORGE: Two. 8 

### JUDGE SULLIVAN: Two more 9 witnesses, which means that we probably will 10 not be getting to the Respondent's case today. 11 

### Mr. Foster, my question to you 12 

### would be is your witness available tomorrow? 13 

### MR. FOSTER: I don't know, Your 14 Honor. He said he would be here. He's right 15 here. 16 

### JUDGE SULLIVAN: Do you want to 17 talk to him during the recess and then report? 18 

### MR. FOSTER: Yes, Your Honor. 19 

### JUDGE SULLIVAN: If he is not 20 available tomorrow, there is a possibility of 21 

### taking a witness out of order. That is 22 

### usually not preferred because you don't know
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• 228 

### 1 what the two more witnesses the FAA plans to 2 

### call are going to say. And if you take a 3 witness out of order, you may not be able to 4 

### utilize that witness fully because, in this 5 

### case, he would not be able to answer or rebut 6 

### the testimony that you hear. 7 

### But if there is no possibility of 8 

### your witness coming tomorrow, that lS 9 

### certainly an option for us to consider. It 10 

### weakens potentially, I should say it 11 potentially weakens your ability to utilize 12 the witness. But that is up to you. 13 

### MR. FOSTER: I would be willing to 14 

### take that chance, Your Honor. He is pretty 15 much just here as a character witness. 16 

### JUDGE SULLIVAN: Okay, well 17 

### MR. FOSTER: He doesn't have 18 intimate knowledge of the case in particular. 19 

### JUDGE SULLIVAN: Okay. I will 20 give you a chance, however, to talk to him 21 privately first. 22 

### And with that, I will look forward
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• 229
1 

### to seeing everybody back here in ten minutes 2 at three o'clock. We can go off the record. 3 

### (Whereupon, the above-entitled 4 matter went off the record at 2:52 p.m. and 5 resumed at 3:04 p.m.) 6 

### JUDGE SULLIVAN: We're back on the 7 record in thematter of Coastal Air Transport, 8 

### Inc. This is docket number FAA-2011-1005. 9 All parties have reconvened in the courtroom 10 after an afternoon recess. And I think I need 11 to check in with you, Mr. Foster, to see if 12 your witness might be available tomorrow or 13 not. 14 MR. FOSTER: Your Honor, Mr. 15 Bohlke is going to be off island tomorrow. he 16 has a flight to Florida. 17 If it we could, it would be fairly 18 quick testimony. 19 JUDGE SULLIVAN: And if you had a 20 chance to talk to Ms. George when that might 21 occur? 22 MR. FOSTER: No, I haven't, Your
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• 230 

### 1 Honor. 2 

### JUDGE SULLIVAN: All right. Okay, 3 well why don't I check in with her now. Ms. 4 

### George, do you have a preference for when we 5 

### could take some testimony out of order in the 6 

### respondent's case? 7 

### MS. GEORGE: I 

### know that 8 examination of the expert witness is probably 9 going to be lengthy. The POI, Mr. Puntonet, 10 is our next witness in line and his may be 11 lengthy as well. As a result, if we were to 12 take the testimony now, it would probably be 13 best for the economy of 14 

### JUDGE SULLIVAN: All concerned? 15 

### MS. GEORGE: Yes. 16 

### JUDGE SULLIVAN: Mr. Foster, there 17 has been agreement by the FAA to take your 18 witness out of order, preferably now, as 19 opposed to later. Do you need a minute or two 20 to chat with him privately before he comes to 21 the stand? 22 

### MR. FOSTER: No, Your Honor. NEAL R. GROSS (202) 234-4433 COURT REPORTERS ANDTRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com

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• 231
1 

### JUDGE SULLIVAN: Okay. And I am 2 looking at your witness list, Mr. Foster. 3 Which witness is this again, please? 4 

### MR. FOSTER: This is William 5 Bohlke. 6 

### JUDGE SULLIVAN: Okay, thank you. 7 I will note for the record that we are going 8 to take a Respondent's witness out of order to 9 accommodate his schedule. Mr. Bohlke is 1n 10 

### the courtroom. And sir, if you could approach 11 

### the witness stand
. 12 

### And I will ask you to stand 1n 13 

### front of the witness stand and raise you right 14 

### hand. 15 

### WHEREUPON, 16 

### WILLIAM BOHLKE, JR. 17 

### WAS CALLED AS A WITNESS BY AND ON BEHALF OF 18 

### THE RESPONDENT AND, AFTER HAVING BEEN FIRST 19 

### DULY SWORN, WAS EXAMINED AND TESTIFIED AS 20 FOLLOWS: 21 

### JUDGE SULLIVAN: Please take a 22 seat. When you are comfortable, please state
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• 232 1 

### you name and spell your last name for the 2 record. 3 

### THE WITNESS: William Bohlke, 4 Junior, B-0-H-L-K-E. 5 

### JUDGE SULLIVAN: Mr. Foster, you 6 may inquire. 7 

### MR. FOSTER: Thank you, Your 8 Honor. 9 DIRECT EXAMINATION 10 

### BY MR. FOSTER: 11 Q 

### Good afternoon, Mr. Bohlke. 12 A 

### Good afternoon. 13 Q 

### Couldyou please identifyyourself 14 with a little bit of your background as far as 15 your former employers, your FAA-designated 16 safety advisor? 17 A 

### I have been in the Virgin Islands 18 since 1962 full-time working initially in my 19 Dad's business. And then after that, 20 

### continuing on to American Airlines. I had a 21 37-year careerwithAmerican. And in-between, 22 when I wasn't working with American, I have
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• 233 1 always resided in St. Croix and I have 2 operated a full-service FBO, fixed based 3 operation maintenance, air taxi, flight 4 school, refueling business. And we have been 5 in business our company has been 1n 6 business since 1959. My Dad started it. I 7 took it over in 1959. 8 I have been an FAA-designated 9 examiner since September of 1970. And I 10 certifyandcertificatepilotsprivatethrough 11 ATP. 12 I presently am retired from 13 Americanbut work full-time inmy business and 14 fly charter. We have a jet, a couple of 15 turboprop airplanes, some piston airplanes, 16 still continue with the flight school, still 17 continue with the rest of the operation that 18 we started. 19 Q Thank you. Your FBO has been 20 voted number one in the Caribbean? 21 A Yes, sir, by Professional Pilot 22 Magazine. We were voted number one last year. NEAL R. GROSS (202) 234-4433 COURT REPORTERS ANDTRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com

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• 234 1 And then two years previously, we were number 2 

### one. In the last ten years, we have always 3 been in the top three Fixed Based Operations 4 in the Pilot Praise Survey of ProPilot 5 Magazine. 6 Q 

### And your maintenance department is 7 what you would consider the best in the area? 8 A 

### Yes, absolutely. Our director of 9 maintenance has been with us for 24 years. 10 Our second in command have been with us 20. 11 We have a total of five mechanics, all 12 licensed A&Ps. 13 Q 

### How long have you known Mike 14 Foster? 15 A 

### I met Mike Foster in 1977, when he 16 first came down from Alaska. We talked. We 17 chatted. He went back to Alaska. We hired 18 him at that time. He was operating a commuter 19 airlinecalledEasternCaribbeanairwayswhile 20 still working with American at the same time. 21 But Eastern Caribbean Airways was 22 a local scheduled air taxi between the U.S.
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• 235 1 

### Virgin Islands, Puerto Rico, the adjoining 2 islands, and we ran scheduled service to 3 Nevis. At that time, we hired Mike Foster as 4 

### a pilot and within a year, he became our chief 5 

### pilot. 6 Q 

### Does coastal air, to your 7 

### knowledge, have any history of accidents, 8 

### incidents, violations? 9 A 

### To the best of my knowledge, I 10 

### know of no incidents, accidents, or 11 

### violations. We maintain Coastal Air's 12 

### aircraft andhave maintained them for the last 13 25 

### years. 14 Q 

### Do you also fuel Coastal Air? 15 A 

### Yes, sir, we sell them all of 16 

### their av gas. 17 Q 

### Is your airline, Bohlke 18 International, is it approved for hazmat to 19 carry? 20 A 

### No, sir. 21 Q 

### Do you regularly carry small 22 quantities of flammable goods, which they
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• 236 1 

### consider sundry items, shampoo, mouthwash, 2 nail polish remover? 3 A 

### Yes. 4 Q 

### Can you identify the black bottle 5 in front of you? 6 A 

### Yes, sir. 7 Q 

### What is that? 8 A 

### That is an AeroShell, it is a 9 bottle of aviation oil used on reciprocating 10 engines. 11 Q 

### Do most aircraft carry a spare 12 bottle with them? 13 A 

### Absolutely, especially in the 14 Caribbean. 15 Q 

### Why l.S 

### that? 16 A 

### It 1.s not regularly available 1.n 17 some of the out islands. 18 Q 

### And is it true that you shouldn't 19 mix oil? 20 A 

### Absolutely, the engine 21 manufacturer specifically states the type of 22 oil you are to use and you should continue
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• 237 

### 1 using that oil throughout the hours of 2 operation of the engine. 3 Q 

### The box in question you haven't 4 

### been here had two pint bottles the size of 5 that clear bottle there with an unknown 6 substance in it. 7 If you were to pick up a bottle 8 and you are a hazmat non-carry, if you were to 9 pick up a box on another island and you had 10 some expert people giving you that box that 11 you knew and they said it is a non-hazardous 12 material and it had no stickers on it, would 13 you generally accept that box on their 14 testimony? 15 A 

### If I knew the person that I was 16 getting it from, yes. 17 Q 

### This incident was received a fine 18 of $59,600 for an airline that has no history 19 of accidents, incidents orviolations. Do you 20 feel that is an acceptable penalty for being 21 discovered with 22 MS
. GEORGE: 

### Objection, Your
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• 238 

### 1 Honor. Mr. Foster has not established Mr. 2 Bohlke's expertise in hazardous materials 3 civil penalties. And therefore, he is asking 4 for his testimony to give an opinion, which is 5 outside of the scope of what his

-- what he 6 has previously provided to the Court. 7 

### JUDGE SULLIVAN: There has been an 8 objection raised regarding the foundation 9 supporting this witness's testimony. 10 

### It appears to me that you are 11 trying to establish this witness as an expert 12 in the aviation field. 13 

### MR. FOSTER: Yes, Your Honor. 14 

### JUDGE SULLIVAN: If that is so, 15 then you still need to establish that he has 16 expertise in an area of hazmat violations and 17 fines, which is a specialty within the 18 aviation field. If you can do that, now would 19 

### be the time to establish that. And I will 20 reserve the objection and also reserve the 21 question regarding the opinions, subject to 22 further expertise established.
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• 239
1 

### BY MR. FOSTER: 2 Q Mr. 

### Bohlke, you have already 3 stated that you have been in the business 4 since 1959. You have been an FAA examiner and 5 you have studied the regulations pretty much 6 

### inside and out during that period. Is that 7 true? 8 A 

### Yes, sir, I am familiar with the 9 regulations. I want to know what specific 10 regulations you want me to speak about. 11 Q 

### Well generally we are conferring 12 

### on will carry and will not carry situations 13 with hazmat; what we can carry and we cannot 14 carry on our aircraft. 15 A 

### As an operator, as a 135 on-demand 16 operator the same as you, we cannot carry 17 

### hazardous materials. And in our training, 18 manual training, we know what we can carry and 19 what we cannot carry based on labels, size, 20 types of materials. 21 Q 

### That would be the same familiarity 22 

### program that Officer Bulted discussed in the
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• 240 1 previous session. 2 JUDGE SULLIVAN: I need to know 3 from the witness, were you present for Mr. 4 Bulted's testimony? 5 THE WITNESS: No, I was not. 6 JUDGE SULLIVAN: Thank you. 7 BY MR. FOSTER: 8 Q Okay, with your experience, and of 9 course you have been here for 40 years, would 10 you consider this fine to be appropriate. 11 MS. GEORGE: Objection, Your 12 Honor. Foundation has not been laid. 13 JUDGE SULLIVAN: I will sustain 14 the objection. This witness has established 15 himself unequivocally as an expert in the 16 field of aviation and Fixed Business 17 Operations. There is no question about that. 18 That does not, however, jump the 19 hurdle of whether or not he is familiar with 20 hazmat violations and the assessment of 21 penalties. 22 For example, has he ever worked
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• 241 1 for the FAA as an hazardous materials 2 inspector? Has he ever had any experience 3 with hazmat violations and the penalties that 4 might or have been assessed? Those kinds of 5 questions would be helpful at this point. 6 Q Okay, can you help us, Mr. Bohlke, 7 on that? Do you have any background in hazmat 8 that you would want to bring up at this time? 9 A I will make the statement that I 10 have had no hazmat fines. I have had the 11 hazmat training on an annual basis. And other 12 than that, I am not an expert on hazmat 13 materials. 14 JUDGE SULLIVAN: Then I would note 15 that it does not appear that this witness has 16 the ability to offer an expert opinion on the 17 quality or the scope of the fine that is 18 proposed against the Respondent. 19 He certainly can offer a lay 20 opinion, which the court will give proper 21 weight to. Do you want this witness to 22 provide a lay opinion,

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• 242 1 MR. FOSTER: Yes, Your Honor. 2 JUDGE SULLIVAN:

-- which would be 3 a person off the street opinion. Okay, then 4 you are welcome to continue your inquiry. 5 BY MR. FOSTER: 6 Q Mr. Bohlke as a reasonable person 7 with an aviation background, would you 8 consider a multiple violator, as we discussed 9 with Mr. Bulted, even though you weren't 10 there, a multiple violator over a two or three 11 year period having numerous violations versus 12 an operator that has no violations over 35 13 years, would you put them on the same scale, 14 as far as penalties? 15 A Absolutely note. 16 Q And for a first offense, if it is 17 proven to be an offense, would you go towards 18 the minimum side of the scale or the maximum 19 side of the scale? 20 A I would go to the minimum side. 21 MR. FOSTER: Thank you, Mr. 22 Bohlke, no further questions.
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• 243
1 JUDGE SULLIVAN: Thank you. Ms. 2 George, do you have cross-examination? 3 CROSS-EXAMINATION 4 BY MS. GEORGE: 5 Q Mr. Bohlke. 6 A Good afternoon. 7 Q Good afternoon. I believe you 8 indicated inyour testimony that your company, 9 Bohlke International is a will not carry air 10 carrier? 11 A That is correct. 12 Q Do you operate under Part 121 or 13 135? 14 A 135. 15 Q 135. And you also indicated that 16 you receive annual hazardous materials 17 training. Is that correct? 18 A That is part of our training on 19 135. That is correct. 20 Q And is that a part of your will 21 not carry program that has been accepted by 22 the FAA, your annual training?
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• 244 

### 1 A 

### That is correct. 2 Q 

### And this annual training that you 3**~** 

### receive, is it general awareness training of 4 recognizing labels and markings on packages? 5 A 

### That is basically what it is, is 6 the packages and the labels. Yes, ma'am. 7 Q 

### Okay. And it is also correct that 8 you don't receive function-specific training. 9 Meaning, they don't explain to you how to load 10 it on an aircraft or how to fill out 11 additional paperwork to carry hazardous 12 

### materials. 13 A 

### That is correct. 14 Q 

### Okay. Now, in your experience as 15 a 135 will not carry operator, you have 16 indicated that you have, in the past, carried 17 small quantities of, what were they, personal 18 goods, nail polish, nail polish remover. 19 Correct? 20 A 

### Yes, ma'am. 21 Q 

### Have you ever carried diesel fuel? 22 A 

### Not to the best of my knowledge.
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• 245 1 Q Okay. And if you were presented 2 with a package containing diesel fuel as a 135 3 will not carry air carrier, you wouldn't carry 4 that, would you? 5 A I would think that if I was 6 presented with a package of diesel fuel, it 7 would be well marked of what it was. 8 Q My question is

-- 9 A Okay. 10 Q -- you have the knowledge that it 11 is diesel fuel and

-- 12 A No, I would not take it. 13 Q -- you were a 135 will not carry. 14 A No, I will not carry it, no. 15 Q And why is that? 16 A Because it is a restricted 17 article. 18 Q Now are you aware of the company 19 SGS, what type of company they are? 20 A No, I am not. 21 Q Okay, you said you have lived here 22 on the Virgin Islands since 1962. Correct?
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• 246 1 A 

### Yes, ma'am. 2 Q 

### Are you aware of the company 3 Hovensa? 4 A 

### Hovensa? 5 Q 

### Yes. 6 A 

### Yes, ma'am. 7 Q 

### And what type of company are they? 8 A 

### It is an oil refinery. 9 Q 

### An oil refinery. If you were to 10 have received a package from Hovensa to carry 11 as cargo on your 135 operation, would you have 12 inquired as to the contents of the package, 13 the oil refinery? 14 A 

### Well I think that Hovensa would 15 have the package properly marked when they 16 gave it to me. 17 Q 

### My question is, if you were to 18 have received a package from Hovensa, you as 19 a 135 will not carry operator, would you have 20 inquired about the contents of the package, in 21 light of the fact about what type of company 22 

### they are?
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• 247 1 A I would probably ask the question, 2 yes. 3 Q Thank you. And that would be a 4 reasonable thing to do to ask the question 5 what are you asking me to carry, in light of 6 the fact that they are an oil refinery. 7 Correct? 8 A We carry a lot of other things for 9 Hovensa, besides what you are suggesting. 10 Q My question was would it be 11 reasonable to inquire about the contents of a 12 package being presented by an oil refinery? 13 A Yes. 14 Q Thank you. Now in your operation 15 as a will not carry air operator, what type of 16 inspections do you do on packages that are 17 presented to you for cargo transportation? 18 A Whoever is bringing the cargo to 19 us, we would ask them what is in the cargo to 20 begin with, what 1s in the package. 21 Q And if they notify you that the 22 contents of the package are a hazardous
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• 248 

### 1 material, you wouldn't carry it, would you? 2 A 

### I would not. 3 

### MS
. GEORGE: Thank you. I have no 4 further questions at this time. 5 

### JUDGE SULLIVAN: Thank you. Mr. 6 Foster, do you have redirect? 7 

### MR. FOSTER: One more question. 8 

### REDIRECT EXAMINATION 9 

### BY MR. FOSTER: 10 Q 

### Mr. Bohlke, if you were given a 11 package by the proverbial Hess Oil Company, 12 Hovensa, and you did inquire what was in the 13 package, which you would have to do if they 14 were going foreign with it, you would have to 15 write up a cargo manifest with the information 16 on the cargo manifest what was in the package. 17 Is that correct? 18 A 

### That is correct. 19 Q 

### And if they told you it was 20 household goods, would you write household 21 goods on the manifest? 22 A 

### Absolutely.
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• 249 1 Q 

### Would you routinely tear open a 2 box on the ramp from somebody you knew at Hess 3 Oil, which you probably know people well over 4 

### there which you have dealt with for years, 5 

### would you routinely tear that box open to 6 

### check on the contents? 7 A 

### No. 8 

### MR. FOSTER: Thank you. 9 

### JUDGE SULLIVAN: Ms. George, do 10 

### you have any final recross? 11 

### MS. GEORGE: No, Your Honor, 12 

### nothing further. 13 

### JUDGE SULLIVAN: Okay. Mr. 14 Bohlke; thank you very much for coming today. 15 Your testimony is complete. You are excused. 16 Ms. George, who would you like to 17 call next, as we return to the FAA's case in 18 chief? 19 

### MS. GEORGE: Thank you, Your 20 

### Honor. At this time, we call Joaquin 21 

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• 250 1 could stand there and raise your right hand. 2 WHEREUPON, 3 JOAQUIN PUNTONET 4 WAS CALLED AS A WITNESS BY AND ON BEHALF OF 5 THE GOVERNMENT AND, AFTER HAVING BEEN FIRST 6 DULY SWORN, WAS EXAMINED AND TESTIFIED AS 7 FOLLOWS: 8 JUDGE SULLIVAN: Please come up to 9 the witness stand and take a seat. When you 10 are comfortable, please state you name and 11 spell your last name for the record
. 12 THE WITNESS: My name is Joaquin 13 Puntonet. First name is Joaquin, that is J-0- 14 A-Q-u-I-N, last name Puntonet, P, as in Peter, 15 U-N-T-0-N-E-T. 16 JUDGE SULLIVAN: Thank you. 17 Counsel, you may inquire. 18 MS. GEORGE: Thank you. 19 DIRECT EXAMINATION 20 BY MS
. GEORGE: Thank you. Mr. 21 Puntonet, where are you currently employed? 22 A I am presently employed by the
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### 1 Federal AviationAdministration, Department of 2 Transportation. 3 Q 

### And what is your position with the 4 Federal Aviation Administration? 5 A 

### With the Federal Aviation 6 Administration, I am an aviation safety 7 inspector, with a specialty of operations or 8 flight operations in the general aviation 9 field. 10 Q 

### And where are you located 11 currently? 12 A 

### I'm currently based in our office. 13 It is called a FSDO, Flight Standards District 14 Office 63, in San Juan, Puerto Rico. 15 Q 

### And how long have you been with 16 the FAA? 17 A 

### Exactly 15 years and four months. 18 Q 

### Now what are your duties as an 19 aviation safety inspector? 20 A 

### As an aviation safety inspector, I 21 am assigned several operators in the region, 22 in our Caribbean Region, which is basically
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1 

### Puerto Rico and the U.S. Virgin Islands. At 2 the present time, I have been assigned with 3 ten different companies. In the past, I have 4 been assigned as much as 21 

### companies, 5 depending onthe availabilityof inspectors in 6 our office. 7 

### I am supposed to surveil these 8 operators, in light of the 14 

### CFR, basically, 9 

### Part 135, 

### Part 61, 

### Part 91, 

### and Part 119, 10 

### specifically. 11 Q 

### Now prior to your position with 12 

### the Federal Aviation Administration, where 13 

### were you employed? 14 A 

### Okay, my first aviation employer 15 

### was in San Juan as a flight instructor. that 16 

### was back 1n 1980. 

### Then I moved off to 17 

### different commuters -- commuter pilot jobs 18 

### under Part 135. 19 

### In 1985, 

### I got hired by a cargo 20 company, calledWranglerAir Cargo/Tradewinds 21 

### International Airlines. I flew there as a 22 flight engineer. I work as a mechanic and as NEAL R. GROSS (202) 234-4433 COURT REPORTERS ANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com

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• 253 1 a copilot in a large turboprop aircraft around 2 NorthAmerica, CentralAmerica, theCaribbean, 3 and Southeast Asia. 4 Q Okay. 5 A Then after that, I went back to 6 the commuter world and I participate as a 7 pilot as a company flight instructor, a 8 company ground instructor. At times, I became 9 chief pilot. Other times, I was a director of 10 operations for a Part 135 carrier. Then I got 11 hired by the FAA. 12 Q Okay and what FAA certificates, if 13 any, do you hold? 14 A I hold an airline transport pilot 15 certificate. I hold a flight engineer 16 certificate. I hold an aircraft mechanic 17 certificate with airframe and powerplant 18 ratings. Also ground instructor and flight 19 instructor certificates. 20 Q Now in your position as an 21 aviation safety inspector with an operations 22 designation, what, if any, is your NEAL R. GROSS (202) 234-4433 COURT REPORTERS ANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com

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1 relationship to Coastal Air Transport? 2 A At the present time, I assigned 3 Principal Operations Inspector on Coastal Air 4 Transport. 5 Q And what does that entail? 6 A It entails that I am supposed to 7 surveil the carrier for compliance with the 8 regulations, specifically, the ones I just 9 mentioned a while ago under Part 135 mainly. 10 And also I am an examiner. I examined Mr. 11 Foster every year as a pilot to make sure that 12 he is covering all the safety parameters of a 13 pilot in his operation. 14 Q Now what type of air carrier 1s 15 Coastal Air? 16 A Coastal Air is presently a Part 17 135 on-demand air carrier, operating under 18 Part 135, yes. 19 Q What is an on-demand air carrier? 20 A Basically an on-demand air carrier 21 is a company flying small aircraft, doing less 22 than five scheduled flights a week.
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1 Q 

### And is there another category of a 2 135 operator, other than 3 A 

### Yes, the other categoryunder Part 4 135 is a commuter air carrier. Commuter air 5 

### carriers are those authorized by the 6 

### Department of Transportation through economic 7 

### authority to perform scheduled airline 8 service, obviouslywith five ormore scheduled 9 flights per week. 10 Q 

### At any time was Coastal Air 11 Transport a commuter air carrier? 12 A 

### Yes, sir. In fact, Coastal Air, 13 for many years, was a rare exception in which 14 he was a commuter airline. It was a commuter 15 airline run by a single pilot operation at the 16 same time. 17 Q 

### And do you recall when the 18 designation changed? 19 A 

### You mean designation? Please 20 explain. 21 Q 

### When did they stop being a 

### 22 commuter air carrier?
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• 256 1 A Okay, I believe somewhere around 2 the end of the year 2009 Coastal Air Transport 3 was actually downgraded to on-demand air 4 carrier. 5 Q Are you aware of how many aircraft 6 Coastal Air operates? 7 A Yes, ma'am. It is actually only 8 two airplanes, a Cessna 402 and a Cessna 404. 9 Q And how many seats or passengers 10 can they carry in these aircraft? 11 A This operation has less than ten 12 passenger seats aboard. 13 Q And how many pilots does Coastal 14 Air have? 15 A Only one pilot. 16 Q And who would that pilot be? 17 A Mr. Mike Foster. 18 Q Now how long have you been Coastal 19 Air's POI? 20 A I have been like two times in the 21 history in my history as an inspector for 22 the San Juan office. I can't recall exactly
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• 257 1 

### the time span it was. It was for like seven 2 years, I believe from the year 1999 to like 3 2003, 2004. Then another inspector took over. 4 And then finally, they gave it back to me 5 about I would say three or four years ago. 6 But again, I don't have definite dates withme 7 at this time. 8 Q 

### Okay. Do you know whether or not 9 you were Coastal Air's Principal Operations 10 Inspector in October 2009? 11 A 

### In October 2009, I believe I was 12 assigned

-- Coastal Air assigned Principal 13 Operations Inspector. 14 Q 

### Now are there requirements for air 15 carriers who carry hazardous materials as 16 cargo onboard its aircraft? 17 A 

### Okay, can you please repeat the 18 question? 19 Q 

### Yes. Are there requirements by 20 the Agency for air carriers who carry 21 hazardous materials onboard its aircraft? 22 A 

### Yes, indeed, for those who are NEAL R. GROSS (202) 234-4433 COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com

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### 1 authorized to carry hazardous materials, yes. 2 Q 

### And is there a distinction between 3 those who are authorized and those who are 4 not? 5 A 

### Yes. 6 Q 

### What type of air carrier is 7 Coastal Air Transport? 8 A 

### Well, actually the type of air 9 carrier is on-demand air carrier. But now are 10 you referring to what kind of authority they 11 hold when we speak about hazardous materials? 12 Q 

### Hazardous materials, yes. 13 A 

### Is that your question, ma'am? 14 Q 

### That is correct. 15 A 

### Yes, currently, and I 

### guess 16 basically all the time, Coastal Air Transport 17 has been designated as a non-carrier of 18 hazardous materials. 19 Q 

### If you would, would you locate 20 Government's Exhibit C-9 in front of you? It 21 should be on the ledge. 22 A 

### Okay, let me double check this.
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1 

### Bear with me because I am not related to the 2 violationmade on Coastal in the hazmat arena. 3 You say C-9? 4 Q 

### C dash nine. 5 A 

### Okay. 6 Q 

### And I have another copy, if you 7 are unable to locate it. 8 A 

### You know what? I don't think 9 there is a -- let me check here. Okay, it was 10 not here, I guess. Okay. 11 Q 

### Do you recognize that document? 12 A 

### This, yes. Yes, I recognize this. 13 Q 

### What is it? 14 A 

### Actually this is a form the piece 15 of a document that actually indicates the kind 16 of training program or manual for non17 acceptance and non-transportation of dangerous 18 goods in air transportation. It is actually 19 a piece of document that actually makes a 20 determination about what type of hazardous 21 material carrieryouwill be, whileperforming 22 or holding out to the public under Part 135.
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• 260
1 

### And it is actually signedby different parties 2 involved, including the Hazardous Materials 3 Office 1.n Atlanta, Georgia, the Principal 4 

### Operations Inspectors, and the assigned 5 management personnel from the company itself. 6 Q 

### Okay. And is Government Exhibit 7 C-9 the designation for CoastalAirTransport? 8 A 

### Yes, ma'am. This piece of paper 9 designates Coastal Air as a non-carrier of 10 hazardous materials. 11 Q 

### And to the best of your knowledge, 12 as the Principal Operations Inspector for 13 Coastal Air Transport, is the designation as 14 a will not accept dangerous goods or hazardous 15 materials the current designation for Coastal 16 Air Transport? 17 A 

### That is correct. 18 Q 

### And to the best of your knowledge, 19 was the designation as a will not accept 20 hazardous materials air carrier, the 21 designation that Coastal Air Transport had in 22 October of 2009?
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• 261 

### 1 A 

### To the best of my knowledge, yes. 2 Q 

### Now, what would the procedure have 3 been if Coastal Air Transport wanted to amend 4 its program or change its program to a will 5 carry air carrier? 6 A 

### Okay, basically the same procedure 7 as any other company certificated by the FAA. 8 If you want to upgrade to a carrier of 9 hazardous materials, you have to submit 10 training and a procedural program to our 11 office in San Juan. 12 Our San Juan office will submit 13 all that manual or new information to the 14 Region, to the experts in the arena of 15 

### hazardous materials. They will make a 16 determination in light of the latest hazardous 17 materials regulations in currency in the 18 

### nation. And they will either recommend or 19 reject a program. They will send that either 20 reject it or recommend the programback to our 21 office. And we will act accordingly, in the 22 

### sense that the training program has or the
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• 262
1 

### program has been rejected, we will give it 2 back to the operator without any approval or 3 

### acceptance. And if the program indeed has 4 been approved, we will sign the paper and 5 forward it to the operator and grant them the 6 permission to accept, carry, and handle, 7 

### hazardous materials in their Part 135 8 operation. 9 

### MS. GEORGE: Thank you. Your 10 Honor, may I approach? 11 

### JUDGE SULLIVAN: Of course. 12 

### (WHEREUPON, THE DOCUMENTS REFERRED 13 TO WERE MARKED AS GOVERNMENT'S 14 EXHIBIT NO. C-14 and C-15 FOR 15 IDENTIFICATION.) 16 

### BY MS. GEORGE: 17 Q 

### Mr. Puntonet, I am handing you 18 what has been marked for identification as 19 Government's Exhibits C-14 and C-15. 20 A 

### Okay. 21 Q 

### Do you recognize the documents? 22 A 

### Yes, ma'am, I do.
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• 263 1 Q 

### What are they? 2 A 

### First, it is actually the basic 3 program, the basic frame of the programs a 4 company will use to either carry or not carry 5 hazardous materials in their flights. 6 Q 

### And specifically, C-14, what type 7 of document is this? 8 A 

### This is a standard will not carry 9 program. 10 Q 

### And C-15? 11 A 

### It is a standard will carry 12 program of hazardous materials. 13 Q 

### And what is the date of both of 14 these documents? 15 A 

### Both are April 2006. 16 Q 

### And the date of the Agency's 17 Exhibit C-9, what is the date of that 18 document? 19 A 

### Okay, C-9. Exactly 1999, December 20 30th. That was the last signature here of 21 1999. 22 Q 

### Now is there any requirement for
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• 264 1 

### an a1r carrier to update their program? 2 A 

### Well it is actually common sense, 3 

### rather than a requirement. The Hazardous 4 Material Office in Washington, I believe, 5 updates the programs every once in a while, 6 basically based on changes in procedures, 7 

### policies, and regulations pertaining to 8 hazardous materials. 9 Q 

### And to the best of your knowledge, 10 did Coastal Air Transport ever update their 11 program after April 2006? 12 A 

### No, ma'am. 13 Q 

### To the best of your knowledge, was 14 Coastal Air Transport given copies of the 15 April 2006 will and will not carry programs? 16 A 

### Yes, ma'am. I 

### recall vaguely at 17 one point in time I discover the fact that he 18 was having a kind of an outdated program and 19 I facilitated Mr. Foster with copies of these 20 basic frames so that he can develop a newer 21 program so that we can submit it to Atlanta 22 

### for acceptance or approval. And then he can NEAL R. GROSS {202) 234-4433 COURT REPORTERS ANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com

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• 265 

### 1 continue on with his operations with a much 2 more updated program. 3 Q 

### Did Mr. Foster ever update Coastal 4 Air Transport's program? 5 A 

### I don't remember receiving any 6 documents updating the program. 7 Q 

### And when you reviewed the Agency's 8 file for Coastal Air Transport, did you find 9 an updated designation within there? 10 A 

### No, I haven't found any newer 11 updated program in his file
. 12 Q 

### Now in your capacity as Principal 13 Operations Inspector for CoastalAir, haveyou 14 ever had occasion to conduct site inspections 15 of the air carrier? 16 A 

### Yes, ma'am. I have conducted 17 

### previously throughout the years. Several 18 times I have been inspecting the company. 19 Q 

### And what did those inspections 20 entail? 21 A 

### Most of the, if not all the times, 22 Mr. Foster showed compliance every time I was NEAL R. GROSS (202) 234-4433 COURT REPORTERS ANDTRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com

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• 266 1 there checking on the company in the different 2 arenas of his operations. In other words, the 3 kind of facilities he held in kind of a weight 4 and balance calculations he performed before 5 every flight and in his general flying because 6 I did flew with Mr. Foster several times in 7 the past, inspecting his operation. 8 Q Did you ever have an occasion to 9 inspect the ticket area or counter where 10 passengers are received? 11 A Yes, ma'am. I mean, I have been 12 exposed to the general area in which he works, 13 his passengers, and his business conducted at 14 the Saint Croix airport. 15 Q And for air carriers operating 16 under 135, what is the Agency's requirement 17 regarding signage or notifications to 18 passengersregarding the carriageofhazardous 19 materials? 20 A Well to tell the truth, I don't 21 know exactly if there is a requirement to 22 advertise the hazardous materials encountered.
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• 267
1 But I guess it is part of the responsibility 2 of the carriers to inform passengers about 3 hazmat, its handling, and the things that they 4 could not put in the airplane in order to have 5 a safe operation. 6 But frankly, I don't have the 7 guidelines. Please bear with me. I am a 8 generalist in aviation, ma'am. 9 Q That's fine. Thank you. As a POI 10 have you ever seen hazardous materials 11 postings at air carriers? 12 JUDGE SULLIVAN: And I 'm sorry. 13 Counsel, you used an abbreviation POI. 14 MS. GEORGE: I'm sorry. Principal 15 Operations Inspector. 16 JUDGE SULLIVAN: Thank you. 17 THE WITNESS: Please repeat the 18 question. 19 BY MS. GEORGE: 20 Q As a Principal Operations 21 Inspector, have you ever seen hazardous 22 materials postings at air carriers?
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• 268 

### 1 A 

### Yes, ma'am, many times. 2 Q 

### And what do those postings look 3 like? 4 A 

### Well actually it is a poster of 5 around 36 inches long by I would say 48 wide. 6 It is actually is an advisory informational 7 poster about the things that shouldn't be 8 carried aboard as a passenger on a specific 9 commercial carrier. 10 Q 

### Now for air carriers who are will 11 carry operators, have you ever seen postings 12 in the cargo area of those air carriers 13 regardingthe carriageofhazardousmaterials? 14 A 

### Well, again, I would like to 15 differentiate here this one fact here when you 16 are a passenger and when you are a strict 17 carrier of hazardous material. Let me explain 18 this. 19 As a passenger, if you are flying 20 passengers in your airline, there is a limit. 21 And I believe we have beenmentioning Part 175 22 

### as of the hazardous materials that a person NEAL R. GROSS (202) 234-4433 COURT REPORTERS ANDTRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com

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• 269 1 

### can carry upon themselves 1n their carry-ons 2 or just in their pockets. Okay? 3 Now there is a big difference on 4 the hazardous materials per se that can be 5 carried aboard the aircraft is that airline 6 is, indeed, authorized to fly hazardous 7 materials. 8 Of course as an example, you will 9 

### fly, let me see -- okay. You will fly a 10 

### cyanide, for example in boxes. That is a 11 

### hazardous material that is acceptable to be 12 

### flown in airplanes, basically in cargo 13 

### airplanes. But some other airlines flying 14 

### passengers might have that kind of hazardous 15 

### materials in their flight properly declared 16 

### because they have authorization to carry such 17 

### HAZMATs onboard in their cargo bellies or 18 

### cargo compartments. 19 Q 

### Okay. Now you had testified that 20 prior to the Federal Aviation Administration 21 

### you were employedby several 135 

### air carriers. 22 Correct?
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• 270 1 A And also a 121 actually two 2 different Part 121 carriers inmy past life as 3 a pilot. 4 Q And we have had testimony about 5 what a 135 1s. Could you explain just for our 6 reference what is a Part 121 air carrier? 7 A Well mainly Part 135 is actually 8 carriers of smaller aircraft. Usually, they 9 have different categories. Very rarely, they 10 fly more than 30 passenger seats or 36 11 passenger seats onboard. Okay? It lS 12 actually commercial operators or smaller 13 aircraft. Okay? Now, Part 121 are 14 entitled to fly much larger airplanes. Much 15 of the airlines in the United States are under 16 Part 121, both Cargo and passengers because 17 they fly a large fleet or a large amount of 18 airplanes, which are kind of heavy or large. 19 Q Now in your previous positions in 20 industry as a pilot, did you work for will not 21 or will carry operators? 22 A I actually worked for both type of
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• 271 

### 1 operations myself. 2 Q 

### And with your experience with will 3 not carry operators, what type of inspections 4 

### would you conduct of passengers or cargo that 5 

### is presented to you for transportation? 6 A 

### Okay, all my life in 121 7 operations, I am functioning as a flight 8 engineer and as first officer. Okay? 9 

### As a first officer in a flying 10 unit, I was part of the crew. The procedure, 11 by that time, was every single kind of 12 hazardousmaterials comes alongwithwhat used 13 to be called a candy stripe document. Okay? 14 It is actually a piece of paper stating the 15 kind of hazardous materials you are carrying 16 onboard in specific is actually have like 17 candy stripes in white or red all around the 18 

### paper, to make it real prominent. We will 19 inform the crew about what types of designated 20 hazmat you are having aboard. 21 Q 

### And was there ever a time where 22 

### you rejected the carriage of cargo, basedupon NEAL R. GROSS (202) 234-4433 COURT REPORTERS ANDTRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com

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1 

### the contents of that? 2 A 

### Okay, you mean on the Part 121 or 3 Part 135? 4 Q 

### On the one -- I'm sorry. On the 5 121. Let's start there. 6 A 

### Okay. On the 121, we were 7 

### strictly flying cargo. So we basically 8 accepted all kind of cargo. Again, cyanide, 9 radioactive stuff, gases, poisonous gases. 10 Even Coca-Cola Zero for the factories in 11 Puerto Rico, which is very hazardous. It is 12 absorbs oxygen from your atmosphere if you 13 have spillage and suffocate thepeople around. 14 The thing is, the main purpose of 15 that candy stripe document describing the kind 16 of hazardous materials you have is so that you 17 can know exactly what you have in the case you 18 have spillage and you have first response 19 reference in manuals you have onboard and you 20 can cope with the situation which is an 21 emergency situation if you have spillage 22 

### sometimes onboard the aircraft.
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• 273 1 Q Now with your previous experience 2 with 135 operators, did you ever have an 3 occasion to reject or accept cargo containing 4 hazardous material? 5 A Okay, I would like to clarify 6 under Part 135 as a pilot and an aviation 7 manager, I had, indeed, several instances. 8 Now all of these carriers I work with as a 135 9 person, were non-carriers of hazmats. And m 10 any times we found occasion in which we 11 suspected we were having hazardous materials 12 offered for transportation and we rejected, 13 upon asking the customers or even after having 14 a valid, a reasonable valid cost to inspect 15 what was in the box because we suspect it was 16 a hazard material. 17 Q Now in front of you, there are 18 some color photographs identified as 19 Government's Exhibits C-8(a) through C-8(I). 20 They are directly in front at the bottom of 21 the stack of documents. 22 A Yes, I have it here. Okay.
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• 274 1 Q 

### Do you have the color ones? 2 A 

### No, this is kind of a bluish 3 background, kind of a bluish and white or 4 gray. Oh, you mean those already color ones. 5 I have another set of pictures here with the 6 same designation of numbers. 7 

### Okay, can you please give me a 8 couple of minutes so I can see this? 9 (Pause.) 10 

### THE WITNESS: I just finished 11 checking these exhibits
. 12 

### BY MS. GEORGE: 13 Q 

### Now, the exhibits that have been 14 admitted, Government's Exhibits C-8(a) through 15 C-8(I) 16 A 

### Yes, I have inspected those. 17 Q 

### In your previous experience at a 18 135 will not carry air operator, if you had 19 presented with a package as depicted in these 20 photographs, what would you have done? 21 A 

### Well personally, I am surprised. 22 

### I haven't seen these before, these exhibits.
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• 275 1 

### It got me by surprise. I see big flags 1n 2 here. 3 Q 

### And what are the flags? 4 A 

### Big flags as a non-carrier of 5 Hazmat, for example, Exhibit C-8(a), you have 6 a stretched D or E embedded in there but you 7 have candy stripes all around. 8 Also I see in the next exhibit, C9 

### 8(b) it looks like this box has been reused 10 several times. It is not a specific first11 time use of this box for the aforesaid items 12 in this flight because they have different 13 

### addresses from like Holland and Saint 14 Eustatius but it doesn't have a destination 15 Saint Croix just in the circle. I mean, it is 16 very suspicious, this packaging. And this 1s 17 what is all about the recognition and refusal 18 of a possible hazmat in you airplane. 19 

### For example, I am referring also 20 now on Exhibit C-8(b) and you can see all this 21 destinations, Saint Croix in ink. 22 JUDGE SULLIVAN: I'm sorry. Which
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1 

### page are you looking at, sir? 2 

### THE WITNESS: C-8(b) as in bravo. 3 

### JUDGE SULLIVAN: Okay, thank you. 4 

### THE WITNESS: You have got 5 multiple destinations. And obviously I know, 6 because I have been hearing the different 7 testimonies, it was going to Saint Croix. But 8 you have got the Netherlands and Saint 9 

### Eustatius. It is confusing to me. 10 

### BY MS. GEORGE: 11 Q 

### Okay, and

-- 12 A 

### Yes, ma'am. 13 Q 

### I'm sorry. Continue. Of course, 14 if I was having suspicions, I will probably 15 open or request -- I would probably, bottom 16 

### line, call the carrier. I mean, the person 17 

### who sent this. Hey, guys, I need to check 18 

### this. I mean, it doesn't look good to me. 19 I'm telling you I am going to open the box. 20 I am going to check. And if the thing is a 21 hazardous material, I am not going to fly. 22 

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• 277 1 manager, aviationmanagerunder 135non-carry. 2 That 1s Exhibit C-8. 3 Q Now, if you had received a bill of 4 lading in your position at a will not carry 5 135 operation that indicated the package 6 contained diesel fuel, what would you have 7 done? 8 A I would not have carried such 9 items onboard my operation. 10 Q And why not? 11 A Because it is for me is a 12 hazardous material. 13 Q In your previous positions at the 14 121 and the 135 operations

-- well I guess 15 specifically at the 121, the cargo operation, 16 were you ever presented with notices to 17 Pilots-in-Commands or NOPICs? 18 A Well that is what we used to call 19 candy stripe documents, which is the actual 20 notice of every single specific items or 21 shipments that will be onboard. Several times 22 we have like three, four, seven, even 12
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1 different candy stripes describing different 2 hazmat types that we were carrying aboard. 3 Q Now as a crew member, what is the 4 significance of those documents for you? 5 A Okay, as a crew members, it 1s 6 basically the kind of action to take in case 7 we have an in-flight emergency in which we 8 have any kind of a specific spillage of one 9 these hazmats. And believe me, there are 10 several different actions and according to 11 IATA, International Airline Transportation 12 Association Procedures, as to how to cope with 13 the situation in-flight. 14 Q And at the 121, were you ever in a 15 position where you were required to maintain 16 such documents? 17 A At all times. You mean -- I'm 18 sorry. What kind of documents are you 19 referring to? 20 Q The candy stripe documents, as you 21 described them. 22 A Okay. We have a so-called flight
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1 envelope for a specific flight. For example, 2 if we went like from San Juan to Hartford, 3 Connecticut. That was a regional flight we 4 used to do sometimes during the week. Or San 5 Juan or Borinquen Airport to Indianapolis, 6 Indiana. We carry a flight bag with documents 7 that pertain to a specific flight. 8 At the end of a flight, when we 9 arrive like Indianapolis, we turn into the 10 station all of the documents of the specific 11 flight, including these candy stripe 12 documents. 13 MR. FOSTER: Objection, Your 14 Honor. 15 JUDGE SULLIVAN: And what is the 16 basis of your objection. 17 MR. FOSTER: Relevance. It has 18 already been accepted that Coastal Air 19 Transport 1s a non-carry hazmat operator. 20 These documents they are discussing are for 21 121 or hazmat operators that we are not 22 associated with.
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1 

### JUDGE SULLIVAN: Ms. George, do 2 you have a response? 3 

### MS. GEORGE: I do, Your Honor. As 4 we indicated earlier, it is the Agency's 5 

### position that despite the fact that Coastal 6 

### Air Transport was a will not carry air 7 

### carrier, they did in fact carry and transport 8 

### hazardous materials. In doing so, they thrust 9 

### themselves into the arena of will carry air 10 

### carriers. And, as if we were setting up 11 

### dominoes, all of the regulations that were 12 

### required of a will carry air carrier were then 13 

### applicable to Coastal Air and the 14 

### transportation of that packages. That 15 includes having notices to Pilot-in-Command. 16 That includes improperly inspecting the 17 package. That includes being in a position to 18 have their employees properly trained to 19 determine whether or not there was a proper 20 carriage of the hazardous material. 21 

### Therefore, the testimony that Mr. 22 Puntonet is providing furthers the Agency's
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### 1 position and establishes that what would have 2 been reasonable for a 135 operator who was 3 faced with the carriage of a box that was 4 

### presented to Coastal Air and, therefore, 5 

### relevant. 6 

### JUDGE SULLIVAN: Thank you. Mr. 7 Foster, I am going to turn back to you and we 8 covered this just briefly earlier today. Ms. 9 George has summed up the FAA's position about 10 why it has charged Coastal with all of these 11 different violations that arebefore the Court 12 for consideration. 13 Is it your belief that she does 14 not have the authority to do that or that 15 somehow she has exceeded her authority in her 16 assertion that by accepting the hazmat 17 material diesel fuel that you subjected 18 yourself to potential prosecution? 19 

### MR. FOSTER: Your Honor, I think 20 she has exceeded her authority. We have had 21 testimony from both Mr. Puntonet and Mr. 22 Bulted that you cannot change in five minutes
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1 

### from a will not carry to a will carry. There 2 is manuals that have to be written. There is 3 forms that you have to use. There is training 4 programs. So, it is just not a possibility to 5 change in five or ten minutes from one to the 6 other. This is a lengthy process, at best. 7 

### JUDGE SULLIVAN: Okay. Do you 8 have any case law or legal reference to 9 support you assertion that Ms. George has 10 

### exceeded her authority as an FAA prosecuting 11 

### agent? 12 

### MR. FOSTER: Only what I just 13 

### said. There is a single violation here that 14 

### we were given a box that whether it did or 15 

### didn't contain hazardous material, that is 1n 16 

### question right now, whether we are a will 17 

### carry operator, that is not the case. We have 18 

### had testimony from numerous people that we are 19 

### not a will carry operator. We are a will not 20 carry operator. So there is one and only one 21 

### violation. 22 JUDGE SULLIVAN: I will note your NEAL R. GROSS (202) 234-4433 COURT REPORTERS ANDTRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com

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• 283 1 objection for the record. I will respectfully 2 overrule it. I think it is relevant 3 testimony, at least from the perspective of 4 the FAA's case in chief. 5 I understand that you don't 6 believe that the FAA should be allowed to 7 prosecute you for all of these violations and 8 that you think it is excessive and that Ms. 9 George may have exceeded her governmental 10 authority. But for the purposes of this 11 testimony, it is allowable at this time. The 12 answer will stand. 13 Do you have other questions? 14 MS. GEORGE: Just one moment, Your 15 Honor. Thank you. 16 (Pause.) 17 MS. GEORGE: At this time, Your 18 Honor, we have no further questions for Mr. 19 Puntonet. 20 JUDGE SULLIVAN: Thank you. 21 Before I turn to Mr. Foster for cross22 examination, I do have a couple questions to
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1 ask you, s1r. 2 If you look at Exhibit C-9,

-- 3 THE WITNESS: I have it in my 4 hands, Your Honor. 5 JUDGE SULLIVAN:

-- it appears to 6 be a one-page document that is entitled FAA 7 National Operations and Training Manual for 8 the Non-Acceptance and Non-Transport of 9 Dangerous Goods inAir Transportation. Do you 10 see that title at the top of the page? 11 THE WITNESS: Yes, I see it, Your 12 Honor. 13 JUDGE SULLIVAN: In your 14 experience with the FAA, would this be the 15 totality of the training manual or would there 16 havebeen someadditional informationattached 17 to this originally? 18 THE WITNESS: Well, this is 19 basically the final determination of fitness 20 for the carrier to either transport or not 21 transport hazardous materials. This piece of 22 paper will come attached with the program NEAL R. GROSS (202) 234-4433 COURT REPORTERS ANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com

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### itself that was actuallyacceptedand approved 2 by our headquarters in Atlanta, specifically, 3 the Hazardous Materials Office. 4 

### JUDGE SULLIVAN: And according to 5 your direct testimony, C-14, which

-- 6 

### THE WITNESS: I have it in my 7 hands. 8 

### JUDGE SULLIVAN:

-- yes, which has 9 not yet been admitted, is programming updates 10 that were instituted in April 2006 by the FAA 

### 11 for will not carriers
. 12 THE WITNESS: Okay, will you 13 please repeat the question? 14 JUDGE SULLIVAN: I'm looking at 15 Exhibit C-14. Do you have that in front of 16 you? 17 

### THE WITNESS: Yes, I do. 18 

### JUDGE SULLIVAN: This appears to 19 be program training updates that occurred 1n 20 April 2006. 21 THE WITNESS: Correct. 22 JUDGE SULLIVAN: And these were NEAL R. GROSS (202) 234-4433 COURT REPORTERS ANDTRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com

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1 

### for will not carry carriers? 2 

### THE WITNESS: Correct. 3 

### JUDGE SULLIVAN: But they were not 4 required to be implemented by will not carry 5 carriers? 6 

### THE WITNESS: Well I don't know 7 about the requirement part of the question. 8 To tell you the truth, I am not sure about the 9 

### requirement itself. But it is a good thing 10 for carriers to be on top and update these 11 programs. 12 JUDGE SULLIVAN: Do you know what 13 the difference was between the 1999 program 14 that would have been in place at the time that 15 Exhibit C-9 would have been signed versus the 16 program updates that were contained in 2006's 17 Exhibit C-14? 18 THE WITNESS: I cannot mention the 19 specifics about the differences. But most of 20 these updates and changes are made in the 21 light of regulations change and procedural 22 

### change from the FAA.
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### JUDGE SULLIVAN: All right, thank 2 you. 3 

### THE WITNESS: You're welcome. 4 

### JUDGE SULLIVAN: Mr. Foster, do 5 you have cross-examination of this witness? 6 

### MR. FOSTER: Yes, I do, Your 7 Honor. 8 CROSS-EXAMINATION 9 BY MR. FOSTER: 10 Q 

### Good afternoon, Mr. Puntonet. 11 A 

### Good afternoon, Mr. Foster. 12 Q 

### Let's go again to C-9, 

### the 13 document we just discussed, will not accept 14 dangerous goods. 15 A 

### I have it in my hands. 16 Q 

### Okay. And we have already 17 discussed this that I do not have a program to 18 

### carry hazardous materials. I will not be 19 getting one. We have no forms. We don't use 20 forms. Is that correct? 21 A Can you please expand or explain 22 your question?
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• 288 1 Q I'm sorry. I just I said because 2 we are a non-acceptance of hazardous 3 materials, we don't have forms, we don't have 4 notifications. We do have our charts 5 available that show us what we can carry and 6 what we can't but we don't have

-- on the 7 hazardous material, we are not required to 8 have a training program regarding hazardous 9 material in general. 10 A I still do not understand what 11 kind of question you are making to me, sir
. 12 Can you please expand more on this? 13 Q Maybe we can go as a single pilot 14 operator, am I required to have a manual? 15 A No. 16 Q Am I required to have training 17 programs? 18 A No manuals and no training 19 programs for the operational side of the 20 company, the general operational side. 21 However, in the case of the 22 carriage or non-carriage for hazmat, is
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1 

### mandatory among all of the carriers, whether 2 you are a single pilot or a multi-pilot 3 operation. 4 Q 

### Okay, as Mr. Bulted has testified 5 

### previously, the non-acceptance of dangerous 6 

### goods training program generally is 7 recognizing

-- it is a chart that of course we 8 call keep posted on our counters that says 9 what you can carry and what you can't carry 10 and certain symbols that you are looking for 11 

### on boxes. Is that correct? 12 A 

### Under my expertise as an industry 13 pilot and inspector from the FAA, the non14 carriage of hazmat program is more in that. 15 Q 

### I understand that. I am just 16 saying it is basically recognition and 17 refusal, rather than how to deal with the 18 individual

-- we don't have to know how to 19 deal with cyanide because we don't carry 20 cyanide. 21 A 

### Well actually, indeed, it is 22 recognizingpossiblehazmats being tried tobe
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1 flown in you airline and rejection of such 2 materials to be carried in you aircraft. 3 Q Thank you. The other question we 4 had was do you recognize the symbol in C-8(a) 5 the color pictures? 6 A Okay, I see several symbols here 7 in this picture. Which one are you referring 8 to? 9 Q No, I only see-- C-8(a) 10 A I have it in my hands. 11 Q The one I am looking at I only see 12 the circle E partially removed. 13 A Okay, personally, I don't remember 14 seeing that symbol. But again, as I stated 15 before, this box has been reused several times 16 and it is missing. There is some information 17 missing out of this tag in here and I can see 18 somebody filled out part of the

-- something 19 that was on top of it and I don't know what it 20 is. 21 Q All right. If you will look at 22 the picture C-8(I).
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1 A 

### I'm looking for the document. 2 Q 

### It is the last one. 3 A 

### Okay, I have C-8(I) in my hands. 4 

### (Pause.) 5 

### THE WITNESS: I have it in my 6 hands. 7 BY MR. FOSTER: 8 Q 

### Okay, I am just saying do you 9 recognize the sticker that is on that box? 10 A 

### Well this is basically a sticker 11 from another airline
. 12 Q 

### Okay, so you had previously said 13 that this box looks like it has been used 14 before. 15 A 

### Yes, correct. 16 Q 

### By numerous other people. You see 17 mailing labels on here and airline labels. So 18 it has been a multiple use box. It is not set 19 up as a hazmat box, per se. It is a box they 20 probably picked up out of the trash dump 21 through and threw their samples in it. 22 A 

### I can't assure the origin of this
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• 292 1 box. 2 Q The origin? 3 A I cannot assure the origin of this 4 box. All I said is it seems to me, and this 5 1s hypothetical, that this has been used 6 several times. 7 Q Yes, thank you. That particular 8 circle, the E with the circle

-- you don't 9 have this, I have a copy of the standard 10 charts that they give to us. You have given 11 us charts like this and we have posted them at 12 our counter sites around the Caribbean. I 13 don't see this symbol listed. This is 14 something new to me and you have already 15 testified that it is something that is new to 16 you. 17 So as a non-carrier of hazardous 18 goods, would we be required to -- we would we 19 be familiar with that particular chart or with 20 that particular signage, considering the box 21 had been reused and it appeared that somebody 22 has tried to tear the thing off and obliterate
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• 293 1 

### it, which they make you do, and has been 2 partially unsuccessful? 3 A 

### Do to the actual condition, the 4 actual condition presented in this label, for 5 me is a partial label. I cannot said it was 6 intended or not intended for hazmat. This is 7 

### partial. I don't have the complete set of 8 

### elements on these thoughts. 9 Q 

### Thank you. Okay, Mr. Puntonet, 10 how long have you known Mike Foster in Coastal 11 Air? 12 A 

### Well, what do you mean by known? 13 Q 

### Been associated with Coastal Air 14 and/or Mike Foster? 15 A 

### Well again, I have been assigned 16 twice to Coastal Air. And Mike Foster being 17 the only pilot, I have been working with him 18 

### several times. Again, I don't have the 19 definite timeframes but I believe I was 20 Coastal Air's POI for several years during 21 early 2000s. 22 Q 

### Would 20 years be appropriate?
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### 1 A 

### Acquainted with you? 2 Q 

### Yes. 3 A 

### No. No, I don't think it is. 4 What do you mean by acquainted, like I know 5 you personally or I have been working with 6 you? 7 Q 

### That you have been involved with 8 Coastal Air as an inspector or check airman. 9 A 

### Well I have only been 15 years and 10 

### four months in the FAA. It is impossible I 11 have been known you -- 12 Q 

### Okay, that is a surprise. 13 A 

### Okay. 14 Q 

### Ten years, then, you have been 15 associated with Coastal Air. 16 A 

### I will say on and off acquainted 17 directly or assigned directly to the company, 18 I would say around ten years. 19 Q 

### Thank you. 20 A 

### That is a more educated guess. 21 Q 

### You have shown in your interview 22 

### that you have been involved in many different
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• 295 1 aviation functions, mechanic, pilot, FAA 2 inspector. We could call you Mr. Aviation of 3 the Caribbean. Do you feel you are one of the 4 most experiencedinspectorsworkingdownhere? 5 A I think I am more humble than 6 that. 7 Q I figured you would. 8 A I am not in any position to name 9 myself a Mr. Superman. I am just a 10 hardworking man that throughout the years, 11 with more than 37 years' experience, I have 12 gained all these tickets and all this 13 experience because I need to put food on my 14 table. 15 Q That's right. Does Coastal Air 16 have you seen Coastal Air Transport have an 17 excellent record of compliance with any 18 history of violations, accidents, or 19 incidents, in your association with them? 20 A Please explain what you mean by 21 excellent. 22 Q Say record of compliance,
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### 1 compliance meaning following the regulations, 2 not being violated. 3 A 

### From my experience with Coastal 4 Air, specificallywhen I personally inspected 5 the carrier, onlywhen I inspected the carrier 6 I have found compliance with the regulations. 7 Q 

### Thank you. 8 A 

### I can't speak for the times I am 9 not around. 10 Q 

### Do you see a bottle, a black 11 bottle in front of you? 12 A 

### Yes, sir. 13 Q 

### Can you identify that bottle? 14 A 

### Yes, sir. It is an aviation oil 15 container. 16 Q 

### Do you often see that carried 17 aboard an aircraft? 18 A 

### Every once in a while, yes. 19 Q 

### Do you consider that a hazardous 20 material or a dangerous item to carry? 21 A 

### I only consider it a COMAT, what 22 is industry-wide known as company materials.
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1 

### It is a necessary item for the flight 2 completion, basically on the maintenance side 3 of the aircraft itself. It could be oil. It 4 

### could be tires. It could be equipment to 5 work, including tools, in the aircraft. 6 Q 

### If you were traveling back to San 7 Juan, as you will shortly on American Eagle, 8 and you had a friend of yours that you knew 9 well here in Saint Croix give you a box and 10 ask you take it back to San Juan with you, 11 would you routinely tear that box open and 12 inspect it if he mentioned it as household 13 goods or magazines? 14 A 

### Under the scope of my employment 15 as an aviation safety inspector, I do not 16 

### carry boxes for anybody. I am not an air 17 courier. 18 Q 

### We are looking at the prosecution 19 exhibit C-17. 20 A 

### Okay, I am looking for· that 21 exhibit now. Okay, I have it in my hands, 

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1 seen this before 2 Q Okay. 3 A
-- to look through, peruse around 4 this kind of a document. Okay? If you please 5 g1ve me some minutes. 6 Q Yes, I would direct you to page 

### c7 2. 8 MS. GEORGE: Objection, Your 9 Honor. Mr. Puntonet has already identified 10 that he is not familiar with the Government's 11 Exhibit C-17 and, therefore, is not in a 12 position to testify about the document. 13 JUDGE SULLIVAN: Well he hasn't 14 had a chance to look at it yet, counsel. And 15 I will note your objection and respectfully 16 overrule it. We will give him all the time 17 that he needs. Given his extensive experience 18 as an FAA inspector, I suspect that this will 19 begin to look familiar to him after time. 20 THE WITNESS: Mr. Foster and Your 21 Honor, can I make a small comment based on the 22 title of this document?
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1 

### JUDGE SULLIVAN: Yes, please. 2 

### THE WITNESS: Okay. Actually this 3 is an appendix from one of the FAA orders 4 2153(b), that is our guideline for enforcing 5 

### the regulations industry-wide. There is an 6 Appendix C called Sanctions Guidance for 7 Hazardous Materials Enforcement. 

### 8 Under the scope df my employment 9 as an aviation safety inspector, I do not work 10 hazardous materials enforcement actions. 11 JUDGE SULLIVAN: So I am going to 12 ask you a follow-up question about that. So 13 have you never utilized Appendix C as 14 identified and listed as Exhibit C-17? 15 THE WITNESS: I believe that is 16 correct, I never used any kind of hazardous 17 materials enforcement in my career with the 18 

### FAA. I never performed these enforcement 19 actions myself. 20 JUDGE SULLIVAN: Okay, thank you. 21 Mr. Foster, do you have other 22 

### questions to ask?
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### MR. FOSTER: I wanted him to read 2 the same sentence that we had Mr. Bulted read. 3 

### JUDGE SULLIVAN: And would that be 4 5 

### THE WITNESS: Okay, can you please 6 explain to me which

-- 7 

### JUDGE SULLIVAN: Sir, I am going 8 to stop you. 9 

### THE WITNESS: I'm sorry. 10 JUDGE SULLIVAN: Essentially, Mr. 11 Foster, we would be looking at page C-2 of 12 Exhibit C-17? 13 

### MR. FOSTER: That is correct, Your 14 Honor. 15 

### JUDGE SULLIVAN: And we would be 16 looking at paragraph three? 17 MR. FOSTER: Paragraph D. 18 

### JUDGE SULLIVAN: D, and what would 19 be the purpose of having this witness read 20 what has already been read into the record, in 21 your opinion? 22 MR. FOSTER: So that we can gain
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1 his knowledge and opinion on this particular 2 regulation or this

-- 3 MS. GEORGE: Your Honor? 4 JUDGE SULLIVAN: Yes, Ms. George? 5 MS
. GEORGE: The Agency will renew 6 its objection. 7 JUDGE SULLIVAN: Well there is no 8 question currently before the witness. So I 9 will reserve your objection. 10 You are welcome to ask the 11 question. I suspect I am going to get an 12 objection and then we can go from there. Mr. 13 Foster. 14 BY MR. FOSTER: 15 Q Okay, Mr. Puntonet, I would like 16 you to read the last sentence on paragraph D 17 that starts, 11In Section 4124. 11 18 A Okay, you want me to read it aloud 19 or in silence? 20 MS. GEORGE: Objection. 21 JUDGE SULLIVAN: I'm sorry, Mr. 22 Puntonet, there has been an objection.
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1 

### MS. GEORGE: Your Honor, the 2 agency again renews its objection regarding 3 testimony or use of the Agency's C-17 with 4 

### this witness. He has testified that in his 5 job as an aviation safety inspector, he has 6 

### not used what has been identified as the 7 Sanction Guidance for Hazardous Materials 8 Enforcement in his career with the FAA. 9 

### JUDGE SULLIVAN: Okay, well I am 10 going to sustain the objection but on the 11 grounds of repetitiveness. Essentially, this 12 material has been admitted in toto already as 13 

### an exhibit. So it is before the Court. It 14 has also been read by a prior witness. So it 15 doesn't need to be read again by this witness. 16 

### Mr. Foster, do you have other 17 questions of Mr. Puntonet? And am I 18 pronouncing your name correctly? 19 

### THE WITNESS: Puntonet 20 JUDGE SULLIVAN: Puntonet, thank 21 you. 22 THE WITNESS: You're welcome
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• 303 1 BY MR. FOSTER: 2 Q I don't know if you can find it up 3 there. We had our Respondent's Exhibit number 4 one. It was the listed complaint. It has got 5 some yellow magic marker on it. 6 A Mr. Foster, are you referring to 7 Exhibit C-1? 8 Q No, it is Respondent's Exhibit 1 9 that is written in pencil on the bottom. It 10 is entitled "Complaint." 11 JUDGE SULLIVAN: Mr. Puntonet, I 12 have a copy and you can look at mine. Thank 13 you. 14 THE WITNESS: Now I have it in my 15 hands. 16 BY MR. FOSTER: 17 Q Can you read for us section 16

-- 18 on page three, section 16? 19 A Okay, page three, section 16 20 reads: "Section 175.85(a) in that Coastal Air 21 carried hazardous materials subject to the 22 requirements of this objector in the cabin of
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1 

### a passenger carrying aircraft or on the flight 2 deck of any aircraft. 11 3 Q 

### Mr. Puntonet, you are familiar 4 with the aircraft Coastal Air flies? 5 A 

### That is correct. 6 Q 

### What does the flight deck appear 7 to be on this Cessna 402? 8 A 

### The same as a 404. Actually two 9 seats side-by-side with instruments. 10 Q 

### Is there any space for cargo up 11 there that we would carry cargo on a flight 12 deck? 13 A 

### I would say there is no room for 14 cargo in that area, a specific compartment. 15 Q 

### Okay and if you would please read 16 

### 17 MS. GEORGE: 

### Your Honor, the 18 Agency will pose an objection at this point. 19 We note that in the December 28th partial 20 motion order, excuse me, on summary 21 judgment, the Court excluded Section 22 175.85(a), which is the portion that Mr.
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1 

### Puntonet just read from. 2 

### JUDGE SULLIVAN: Mr. Foster, I 3 think Ms. George is essentially saying that 4 this may not be necessary because the 5 violation that you were accused of in the 6 original complaint, that being violation 7 number 16 in the Notice of Complaint, was 8 dismissed by this Court as a matter of law. 9 So it is not before the Court anymore and no 10 findings will be made about this. It is over. 11 

### MR. FOSTER: I'm sorry, Your 12 

### Honor. 13 

### JUDGE SULLIVAN: You shouldn't 14 need to feel sorry. This is a difficult type 15 of case. But essentially, you won on summary 16 judgment on this particular violation. 17 

### MR. FOSTER: Okay. Mr. Puntonet, 18 19 

### JUDGE SULLIVAN: I will simply 20 sustain the objection by the FAA on this. 21 

### MR. FOSTER: Okay. 22 

### BY MR. FOSTER:
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1 Q 

### If you would go to number 17 and 2 if you would read that for us. 3 A 

### Okay, page three, section 17. 4 "Pursuant to 49 U.S. Code Section 5213(a), 5 Coastal Air Transport, Inc. is subject to a 6 civil penalty not lower than $250($450 for 7 training-relatedviolations) nor greater than 8 $50,000 ($100,000 if that serious illness, 9 severe injury, or substantialpropertydamages 10 results) for each violation of the Department 11 

### of Transportation Hazardous Materials 12 Regulations." 13 Q 

### Okay, thank you. In your opinion, 14 with your experience level here, do you feel 15 that an incident such as this, and I won't 16 call it a violation, would be, if in fact it 17 was fined, would it be fined at the minimum 18 level or the maximum level? 19 MS. GEORGE: Objection, Your 20 Honor. Mr. Puntonet has testified that he, in 21 his experience as an aviation safety 22 inspector, does not have any experience with
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### the FAA hazardous materials enforcement 2 program and, therefore, is not in a position 3 

### to offer an opinion regarding the 4 applicability of the civil penalty being 5 sought in this matter. 6 

### MR. FOSTER: I object, Your Honor. 7 He has more experience than anybody in this 8 room on FAA material and actions. Along the 9 way, he has witnessed more than any of us have 10 combined. 11 

### JUDGE SULLIVAN: Your objection is 12 noted and respectfully overruled. I will 13 allow the witness to answer as he sees fit. 14 Do you remember the question? 15 

### THE WITNESS: Yes, I do. Well, 16 Mr. Foster, inmy career as an aviation safety 17 inspector, I probably have done 30 to 40 18 different EIRs or enforcement reports fining 19 people, air carriers, et cetera. But indeed, 20 I have never have worked in the arena of 21 hazmat violations enforcement. I would like 22 to reserve myself, my opinion at this time
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### because of a lack of background experience in 2 the hazmat arena in the area of enforcement. 3 

### JUDGE SULLIVAN: Well I'm not sure 4 that you have the ability to reserve an 5 opinion at this point. You can say you don't 6 have one, or that you needmore information to 7 have one, or that you are not qualified, or 8 that you have an opinion but you can't 9 withhold something. 10 So do you have an opinion or not? 11 

### THE WITNESS: In the name of 12 truth, yes, I have an opinion. 13 

### MR. FOSTER: Can I rephrase my 14 question, Your Honor? 15 

### JUDGE SULLIVAN: If you wish. 16 

### BY MR. FOSTER: 17 Q 

### Without pinning this down strictly 18 to hazmat, you say you have done 32 violations 19 that you have processed, again, when you were 20 processing these violations, if you found 21 somebody that had very many years of 22 experience with no accidents or incidents or NEAL R. GROSS {202) 234-4433 COURT REPORTERS ANDTRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com

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### 1 violations, would you prosecute them with a 2 

### minimum or maximum fine? And in the same 3 

### area, if you found somebody that was 4 repeatedly doing the wrong thing over and 5 over, whether it was hazmat or maintenance or 6 just disrespecting the rules, would you go to 7 the maximum penalty for them versus a minimum 8 penalty? 9 You have got a range here, quite a 10 

### range, $250 to $50,000. Of course, the 11 prosecution has already said that that is not 12 true anymore. But what would be your opinion 13 on that on a general question on your 14 experience? 15 A 

### Based on the specific factors 16 discussed in this court today, I would 17 probably be more lenient in the amount given 18 to the airline. 19 Q 

### Would you consider a warning 20 letter or a letter of that nature to be 21 adequate for somebody with this record of good 22 

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1 

### incidents? Would you feel that would be 2 enough to make sure that it didn't happen 3 again? 4 A 

### I have to respect the person's 5 criteria in the violation. All I can say I 6 will go for a lower fine. 7 Q 

### Okay, thank you Mr. Puntonet. 8 A 

### You're welcome. 9 

### MR. FOSTER: I have no further 10 questions. 11 

### JUDGE SULLIVAN: Thank you, Mr. 12 

### Puntonet. 13 THE WITNESS: You're welcome, Your 14 Honor. Do you need this? 15 

### JUDGE SULLIVAN: Oh, thank you 16 very much, sir. I will note that Mr. Puntonet 17 has handed the Court backRespondent's Exhibit 18 number 1. 19 

### Ms. George, would you like to 20 redirect? 21 

### MS. GEORGE: Yes, Your Honor. 22 REDIRECT EXAMINATION
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1 BY MS. GEORGE: 2 Q Mr. Puntonet, have you ever had an 3 opportunity to inspect the passenger counter 4 for Coastal Air, the ticket counter? 5 A Yes, ma'am. 6 Q And did you ever see any postings 7 regardingthe carriageofhazardousmaterials? 8 A Specifically right now I just 9 can't recall. 10 Q And recently, did you have an 11 opportunityto inspect the counter for Coastal 12 Air? 13 A I just drove by this morning and I 14 don't remember seeing any big posters out 15 there at this very time. However, there is 16 another airline right next to his carrier who 17 actually shows a lot of color posters guiding 18 the public on the hazardous material subject. 19 Q So 1s it accurate the other 20 airline had postings but Coastal Air did not? 21 A To what I observed when I drove 22 by, that is correct.
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1 Q 

### And if you could turn again to the 2 color photographs that are in front of you, 3 specifically Government's Exhibit C-8(a). 4 A 

### You say C-8(8)? 5 Q 

### Yes, the large color photographs. 6 A 

### Oh, C-8(a), okay. 7 Q 

### Alpha. 8 A 

### Okay, I thought it was eight, two 9 

### eights. I'm sorry. 10 Q 

### I'm sorry. 11 A 

### Yes, I have it in my hands. 12 Q 

### Now you had previously testified 13 that you noticed some candy striping on that 14 particular label when you reviewed the 15 photograph. Is that correct? 16 A 

### Yes, this label has some candy 17 stripe kind of design around whatever portion 18 of this label that is presented. 19 Q 

### And in your experience again, what 20 did candy striping mean to you? 21 A 

### I think it referred it is like 22 a flag that was some kind of a hazmat
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1 involved. 2 Q And being presented with a partial 3 label such as what appears in Government's 4 Exhibit C-8(a), what steps would you have 5 taken in inspecting the package? 6 A Well, if I were the operator fully 7 trained in the non-carriage of hazardous 8 materials, I would further inquire as of the 9 origin, you know, the originators of this 10 piece of material or cargo about its contents 11 before handling it or flying this item in my 12 airplane. 13 Q And would it have been reasonable 14 not to make a further inquiry when faced with 15 a label such as what appears in Government's 16 Exhibit 8(a)? 17 A I personally believe it was not an 18 option for me not to make questions, in view 19 of this information. For me, this is a flag 20 on hazmat. 21 MS. GEORGE: Thank you. No 22 further questions, Your Honor.
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1 

### JUDGE SULLIVAN: Mr. 

### Foster, 2 before you jump up, I am going to just ask a 3 

### couple questions. You have indicated in 4 redirect just now that you drove past Coastal 5 Air this morning. Do you have an address to 6 offer us? What address did you drive by? 7 

### THE WITNESS: Okay, basically, I 8 don't have any definite address. It is just 9 the premises where themain counter is located 10 at the Saint Croix Airport. 11 JUDGE SULLIVAN: So Coastal Air 12 

### Transport operates out of the International 13 Airport in Saint Croix? 14 THE WITNESS: That is correct. 15 

### JUDGE SULLIVAN: And you indicated 16 that another airline is situatedright next to 17 Coastal Air's counter? 18 

### THE WITNESS: That is correct. 19 

### JUDGE SULLIVAN: Do they share a 20 counter or do they have adjoining counters? 21 

### THE WITNESS: They have adjoining 22 counters, they don't share them.
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1 

### JUDGE SULLIVAN: You indicated 2 earlier that if a customer advised you by a 3 bill of lading or bill of label that a package 4 contained diesel fuel, you would not have 5 carried it as a will not carrier. 6 

### THE WITNESS: As a will not 7 carrier, I will not have taken those items 8 onboard the aircraft. 9 

### JUDGE SULLIVAN: If the customer 10 had told you that it was fuel oil instead of 11 diesel fuel

-- I'm sorry, just fuel oil, would 12 you have carried it? 13 THE WITNESS: No, I will not have 14 carried. 15 JUDGE SULLIVAN: And why is that? 16 

### THE WITNESS: Because obviously, 17 this is a -- I am holding out to the public. 18 In other words, I am carrying commercially 19 

### these materials. This is not company 20 materials for my companyneeded for the flight 21 like this oil can or oil container. So it was 22 indeed for me, it will be a hazardous material
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1 

### not to be carried because I do not have the 2 authorizationtohandle and accept such items. 3 

### JUDGE SULLIVAN: You also 4 indicated earlier that, and this was during 5 Mr. Foster's original cross, that as a single 6 pilot operation, he has no training program 7 required, no manual required, but you believe 8 that there still needed to be some type of a 9 general awareness training for him. 10 

### THE WITNESS: That is correct. 11 Your Honor, I would like to amplify on your 12 

### question. Yes, basically all of the carriers 13 in the U.S. under Part 135, whether you are a 14 singleoperationormulti-pilot operation, you 15 are required to have some kind of hazardous 16 material program. If you don't carry the 17 hazmat, you are supposed to have a non18 carriage program active in your company. 19 Okay? 20 

### JUDGE SULLIVAN: Thank you. 21 

### THE WITNESS: It is a little 22 remark I like to do.
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1 JUDGE SULLIVAN: Thank you. Mr. 2 Foster, do you have any recross based on the 3 redirect and the Court's inquiry? 4 MR. FOSTER: Yes, Your Honor. 5 RECROSS-EXAMINATION 6 BY MR. FOSTER: 7 Q Mr. Puntonet, you were just asked 8 if you were told the box had diesel fuel in it 9 or fuel oil that you wouldn't carry it because 10 you were in a no carry situation. That is 11 correct? 12 A Affirmative. 13 Q Okay. If the case was you were 14 being handed a box and it was from people that 15 were educated and trained and they had 16 certificates to handle hazardous material and 17 you did ask them what is in the box and they 18 told you small bottles of oil, oil samples, 19 and they said they are not considered 20 hazardous, would you accept them then? 21 A Well, first of all, I like to have 22 some clarifications in your question. The
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### first portion of your question was if this 2 customer was a person who is authorized to 3 distribute and handle hazardous materials. I 4 

### would like to confirm that first. 5 Q 

### That is correct. 6 A 

### Okay. 7 Q 

### It has already been testified that 8 these people do have training records inplace 9 and they have programs in place. So they are 10 educated to hazmat. 11 A 

### As shippers? 12 Q 

### Shippers, yes. 13 A 

### Okay. Okay, got you. Now what is 14 the rest of your question, please? 15 Q 

### Well, I am saying the same thing. 16 If you were notified by the shippers, if you 17 noticed this crossed hatch sticker on it and 18 you weren't aware of what it actually meant 19 and you asked your shipper what is in the box 20 and what should I do with it, and they said it 21 is small bottles of oil samples and they are 22 not considered hazardous and it is okay to
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1 

### carry, would you believe the people that are 2 educated in this and do it on a daily basis or 3 you don't have the regulations with you in the 4 aircraft, how would you -- would you normally 5 tear the box open? You said before you would 6 tear a box open to take back to Saint Croix 7 because you are a carrier or you are not a 8 carrier. But if it was given to you on good 9 advice that it was nonhazardous, would you 10 

### tear the box apart at that point or would 11 

### accept it on faith? 12 A 

### As a non-carr1er of hazardous 13 

### material operator, I will have the leeway to 14 

### accept or decline carrying anything that I 15 

### suspect could be a hazardous material, 16 

### regardless of the nice histories or stories 17 

### they might tell me that everything is okay. 18 

### Besides, when you are a shipper of 19 

### hazmat, you should have included some kind of 20 information, candy stripe forms, bill of 21 

### lading, describing the kind of material you 22 are carrying.
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• 320 1 When I say describe, it is that 2 you must have some specific IATA or UN 3 designator for whatever material you are 4 carrying if the thing is hazardous or not. 5 MR. FOSTER: Okay. No further 6 questions. 7 JUDGE SULLIVAN: Ms. George do you 8 have any final redirect? 9 MS. GEORGE: Just one, Your Honor. 10 At this time, the Agency would like to admit 11 into evidenceGovernments Exhibits C-14 andC12 15. 13 JUDGE SULLIVAN: Do you have any 14 redirect, Ms. George? 15 MS. GEORGE: No, I'm sorry. 16 JUDGE SULLIVAN: Okay. Mr. is it 17 Puntonet? 18 THE WITNESS: Puntonet. 19 JUDGE SULLIVAN: Puntonet, thank 20 you. If you come back tomorrow, I will be 21 better prepared. 22 It appears that your testimony is
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### complete, sir. Thank you very much for your 2 presence today. You are excused. 3 

### MR. PUNTONET: Thank you, Your 4 Honor. 5 

### JUDGE SULLIVAN: You're welcome. 6 

### Mr. Foster, there has been a 7 motion to admit Exhibits C-14 and C-15. Do 8 

### you have any objection? 9 

### MR. FOSTER: I have no problem 10 with that, Your Honor. 11 JUDGE SULLIVAN: Okay, Exhibits C12 14 and C-15 are hereby admitted. 13 

### (WHEREUPON, THE DOCUMENTS REFERRED 14 TO, PREVIOUSLY MARKED AS 15 GOVERNMENT'S EXHIBIT NO. C-14 AND 16 

### C-15 FOR IDENTIFICATION, WERE 17 

### RECEIVED IN EVIDENCE.) 18 

### JUDGE SULLIVAN: And let me ask. 19 I am going to check in with both of you about 20 some other exhibits and it may be that neither 21 of you want to actuallyhave them admitted but 22 I just wanted to check.
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### I have C-5 that still has not had 2 a motion. Is it your intent to utilize that 3 exhibit as evidence or are you planning to not 4 

### use it? 5 

### MS. GEORGE: Yes, Your Honor. At 6 

### this time, we renew our motion to admit C-5 7 

### into evidence. And that is the bill of 8 

### lading. Is that correct? 9 

### JUDGE SULLIVAN: That is what you 10 

### have identified as C-5 for the Court. 11 

### Mr. Foster, do you have any 12 

### objection to the admission of Exhibit C-5? 13 

### MR. FOSTER: I 

### do. I don't know 14 where it came from. 15 

### JUDGE SULLIVAN: Okay. What I am 16 going to do is I will reserve the motion to 17 admit and I will readdress that tomorrow. 18 

### And then Mr. Foster, you have 19 provided to the court Respondent's Exhibit 1. 20 Do you have any intention of moving to have 21 

### that admitted for illustrative purposes? 22 MR. FOSTER: I think it is already
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### in the Court record, Your Honor. 2 

### JUDGE SULLIVAN: It is but it 1s 3 not part of the testimonial record. Do you 4 

### want it part of the

-- 5 

### MR. FOSTER: Okay, then I would 6 

### like to have it admitted. 7 

### JUDGE SULLIVAN: Okay, is there 8 

### any objection to the motion to admit 9 Respondents Exhibit 1? 10 MS. GEORGE: No, Your Honor. 11 

### JUDGE SULLIVAN: Respondent's 12 number one is hereby admitted. 13 

### (WHEREUPON, THE DOCUMENT REFERRED 14 

### TO, PREVIOUSLY MARKED AS 15 

### RESPONDENT'S EXHIBIT NO. R-1 FOR 16 

### IDENTIFICATION, WAS RECEIVED IN 17 EVIDENCE.) 18 

### JUDGE SULLIVAN: Folks, we now 19 have about 17 minutes left to the hour five 20 o'clock, which is where we stop for the day. 21 We, obviously, are going to be coming back 22 

### tomorrow both for the remainder of whatever
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1 testimony the FAA's last witness has to offer. 2 And then for the responsive case in chief of 3 the Respondent, Coastal Air. 4 Ms. George, do you want to start 5 the testimony of your last witness now or do 6 you want to wait until tomorrow in its 7 entirety? What is your preference? 8 MS. GEORGE: I would prefer to 9 wait until tomorrow. 10 JUDGE SULLIVAN: Okay. Is that 11 acceptable to you, Mr. Foster? 12 MR. FOSTER: Yes, it is, Your 13 Honor. 14 JUDGE SULLIVAN: Okay, then I will 15 thank everyone for your presence today. It 16 appears we are going to recess about 15 17 minutes early. 18 Ms. George, is there anything else 19 that we need to address for you and your 20 client today? 21 MS. GEORGE: No, Your Honor. 22 JUDGE SULLIVAN: Okay. Mr.
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### 1 Foster, again, we talked about this early in 2 the morning, but if you have financial 3 documents that you want to exchange with Ms. 4 George in your continuing discussions of 5 settlement, you are free to do that. You are 6 also free to bring them as part of your case 7 in chief, if you would like to do so. But if 8 so, you need to make copies and make them 9 available to Ms. George ahead of time so that 10 she has a chance to read them. 11 Is there anything else that we can 12 

### address for you and your client today? 13 

### MR. FOSTER: No, Your Honor. 14 

### JUDGE SULLIVAN: Okay, then thank 15 

### you all very much. We are hereby recessed. 16 We can off the record and I wish you all a 17 good evening. 18 

### (Whereupon, the above-entitled 19 matter went off the record at 4:45 p.m.) 20 21 

### 22
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# • resumed72:2 201:14218:13 93:21 182:21 160:15,19 164:7,7 134:3,13 152:18 130:6 134:17 221:2222:8 188:2 189:5 183:5 184:5 186:6 152:21 153:2 229:5 227:14230:2 266:14275:13,15 186:10,12 187:20 157:17158:17 retained74:7 231:13250:1 275:21 276:7,8 188:14 189:2 159:22 160:16 retake82:20 282:16287:1 297:9314:10,13 192:19 196:9 161:21 166:9,13 retention73:15 290:21 295:15 319:6 197:22 198:9 166:17167:12 retired233:12 311:8,16314:16 sample15:1742:15 213:10214:2,21 170:7 178:6 184:4 retrievable71:13 right-hand183:19 161:1,1,3,5 224:3,11 289:8 184:11 185:3

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# • 312:14 rura1167:14 112:10 122:3 seat22:2245:15 seeking108:9 reviewing 138:12 R-A-1-L194:19 251:14252:15 82:22 87:9231:22 seen49:2269:9 138:14 139:13,15 R-13:21 38:21 256:22261:11,12 250:9 149:9 150:5 141:16 323:15 279:2,4297:6,10 seats72:8256:9,12 168:13,13 177:9 revisit51:15 sanction 181:1,4 270:10,11 304:9 189:6203:22 re-approached 

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# • 7:16 8:5,8,8,13,15 155:2318:11,12 similar86:1 166:1 186:11 203:11 Southeast253:3 325:5 318:16 171:10203:11 237:4239:19 Southern2:6 setup157:7 shipping42:9 224:15 slash 153:13 so-called278:22 seven 17:7257:1 55:15 104:4 109:9 simple29:2030:3 small15:2076:21 S0-7000371:6

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85:12 120:9,20 230:21231:11,12 203:13279:10 stripes222:17,19 37:1738:1,5,13 122:19 123:5 231:13250:1,9 Stationed46:22 271:17275:7 39:3,7,1240:16 139:4 140:5 283:12 status115:1 278:1 40:1941:1243:5 143:13 198:14 standard18:17 statute214:20 striping312:13,20 43:844:11,16,22 239:9 268:8 42:959:1664:4 stay11:186:14,17 struck147:15 45:7,14,2049:18 271:16275:10 92:9,17 112:9 131:1 struggle75:3 50:4,18 51:5,12 277:20278:8 114:16 153:3 stays65:8,9 studied239:5 52:9,13 55:21 279:1,7,10304:14 218:21 263:8,11 Steele3:3 22:10,12 stuff26:20 151:3 60:11,17,2161:4 309:15320:2 292:9 22:1623:3,11 272:9 64:1467:9,22 specifically56:6 standards112:15 28:629:13 31:1 Subchapter200:20 68:3,969:14

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# • ' Neal R. Gross & Co., Inc. 202-234-4433

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•

• 362 C E R T I F I C A T E
This is to certify that the foregoing transcript

In the matter of: Coastal Air Transport
Before: US DOT

Date: 01-29-13
Place: Christiansted, St. Croix, U.S. Virgin Islands

was duly recorded and accurately transcribed under my direction; further, that said transcript is a true and accurate record of the proceedings.

(202)234-4433 Court Reporter

NEALR. GROSS COURTREPORTERSANDTRANSCRIBERS 1323RHODEISLANDAVE., N.W. WASHINGTON,D.C. 20005-3701 www.nealrgross.com