In The Matter Of: 

SCOTT TICE 

Respondent 

SERVED: June 19, 2015 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

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) 

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Docket No. FAA-2013-0042 

Case No. 2012NE700211 

INITIAL DECISION OF U.S. ADMINISTRATIVE LAW JUDGE 

Held: Violation Nos. 1 -10 Proven by Admission 

On May 21,2013, an Order Granting FAA Renewed Motion to Deem Allegations 

Admitted and Granting/Denying Other Relief.was filed. This May 21,2013 Order found 

that the Respondent, Scott Tice, had admitted to committing the ten (1 0) alleged 

violations 1 of the Hazardous Materials Regulations, charged by the FAA in its January 

29, 2013 Complaint. 

Civil Penalty Assessed 

Mr. Tice is assessed a total civil penalty of $300 for the ten (1 0) admitted violations. 

A. Short Summary of the Case Proceedings 

On January 23, 2013, the prose Respondent, Mr. Scott Tice, served the FAA with a 

Request for Hearing? (Compl., 1.) 

On February 5, 2013, the Regional Counsel for the FAA's New England Region filed a 

Complaint, dated January 29, 2013, with the U.S. Department ofTransportation's Office of 

1 The ten (10) regulatory violations alleged in the Complaint and admitted by Mr. Tice were: Violations No. I (49 

C.F.R. § 171.2(e)), No.2 (49 C.F.R. § 171.200(a)), No.3 (49 C.F.R. § 204(a)/(c)(l)), No.4 (49 C.F.R. § 

172.204(c)(2)), No.5 (49 C.F.R. § 172.300(a)/301(a), No.6 (49 C.F.R. § 172.304(a)(l)), No.7 (49 C.F.R. § 

172.400(a)), No.8 (49 C.F.R. § 172.600(c)(l), No.9 (49 C.F.R. § 173.1(b)), and No. 10 49 C.F.R. § 173.27(b)(l). 

2 The FAA did not file a copy of the Request for Hearing with its Complaint, so the Request is not part of the 

documentary record herein. The date of service of the Request is adopted from the Complaint's allegations. 
Hearings. In its January 29, 2013 Complaint, the FAA alleged that Mr. Tice had committed ten 

(10) violations ofthe Hazardous Materials Regulations ("HMRs"), under 49 C.F.R., Subtitle B, 

Chapter I, Subchapter C, as identified in Count II. (Compl., 3-4, ~ 14 (a)-(j).) The FAA proposed 

a total civil penalty of $600 for the ten ( 1 0) HMR violations. (!d. at 4, Count III.) 

On April 22, 2013, Mr. Tice filed a late ·Answer to the Complaint ("Answer"). 

On May 1, 2013, an Order Accepting the ProSe Respondent's Response, Finding Good 

Cause Exists to Accept the Late Answer, and Granting/Denying Other Relief was filed. 

On May 21, 2013, an Order Granting FAA Renewed Motion to Deem Allegations 

Admitted and Granting/Denying Other Relief was filed. This May 21, 20 13 Order found that Mr. 

Tice had admitted to committing the ten (10) all7ged violations ofthe HMRs charged by the 

FAA in its January 29,2013 Complaint. However, the May 21,2013 Order also found that Mr. 

Tice had not admitted to the appropriateness ofthe FAA's proposed $600 civil penalty. 

On August 20,2013, the FAA filed its Motion for Decision on Issue of Civil Penalty 

("Motion"), in which it sought pre-hearing, dispositive relief on the FAA's proposed civil 

penalty. (Mot., 7.) 

On September 24,2013, Mr. Tice filed his response to the FAA's Motion ("Response"). 

On November 14, 2013, the parties convened by telephone for a Motion Conference, and 

presented oral argument on the FAA's August 20,2013 Motion for Decision on Issue of Civil 

Penalty. 

On September 8, 2014, an Order Denying the FAA's Motion for Dispositive Relief under 

Summary Judgment Review ("Summary Judgment Order") was filed. This Summary Judgment 

Order denied the FAA's Motion for pre-hearing, dispositive relief and found that genuine issues I 

of material fact remained in dispute regarding the calculation of the proposed civil penalty. 

Pursuant to the parties' oral agreement on November 14, 2013, the parties waived the 

opportunity for hearing and the submission of live testimony. The parties agreed that a decision 

on the appropriate civil penalty should be reached on the parties' filed, written submissions, 

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which included information that would be admissible as testimonial evidence at a hearing. 

(11/14/13 Tr. 50-52; Summary Judgment Order, 6.) 

B Brief Summary of Case Facts 

All admitted facts were considered, but only a brief summary is provided herein. 

In 2012 Mr. Tice flew from Wisconsin to northern Vermont to go on a backpack, hiking 

trip and then visit his sister. (Ans. 1; 5/16/13 Tr. 11:22-12:10) Upon arrival in Vermont, he 

purchased an 8-ounce container of MSR IsoPro Premium Blend Fuel at a local camping store. 

· (!d.) Mr. Tice used this fuel canister for cooking and dishwashing during a weeklong 

backpacking trip on the Long Trail. (Ans., 1.) After one week, Mr. Tice ended his hiking trip in 

Manchester, Vermont, which is where his sister lived. By that time, the fuel in the canister was 

"almost all" used. (!d. at 2.) Mr. Tice then spent a week visiting with his sister. (!d. at 1.) During 

his visit, Mr. Tice "clean[ed] up" by washing clothes and throwing out trash. (!d.) He forgot to 

throw out the fuel canister with the other trash, because he had packed it inside his two titanium 

cooking pots, which were wrapped inside Mr. Tice's tent and sleeping bag. (!d. at 1-2) 

On September 11, 2012, after his visit with his sister had ended, Mr. Tice checked his 

baggage at Rutland Southern Vermont Regional Airport, in order to fly back home. (!d. at 1; 

Compl., 1.) Before Mr. Tice boarded Cape Air Flight 60, Transportation Security Administration 

("TSA") personnel initiated an inspection of Mr. Tice's baggage and discovered the nearly 

empty 8-ounce container offuel. (Mot., 1; Compl., 1-2; Ans., 1-2.) The fuel container was 

marked "DANGER," "EXTREMELY FLAMMABLE," and "CONTENTS UNDER 

PRESSURE." (Compl., 2.) It held less than on~ teaspoon ofMSR IsoPro Premium Blend Fuel 

inside.3 (Resp., 2.) 

It was undisputed that MSR IsoPro Premium Blend Fuel is a hazardous material 

("hazmat") under 49 C.F .R. § 172.101. The proper shipping name is "Petroleum gases, 

liquefied." It is in hazard class 2.1 (flammable gas) and has an assigned identification number of 

UN1075. It is forbidden for transportation on passenger-carrying aircraft regardless of the 

amount. 49 C.P.R. § 172.101; 5/16/13 Tr. 22:20-23:6. 

3 Mr. Tice estimated that the amount was approximately 4/1 Os of 1 ounce. (Ans. 2.) Because the canister was 

thrown away by TSA at the airport, Mr. Tice could not verify the exact amount remaining. (!d.) 

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It was also undisputed that the Vermont Regional Airport was a "very small airport." 

(5/16/13 Tr. 18:22.) When the TSA inspected Mr. Tice's bag, he was nearby, waiting to board 

the aircraft. Airport personnel then notified Mr. Tic~ about the TSA's discovery of the forbidden 

fuel can: 

I didn't actually see them go through the bag, but after they went through the bag, the 

ticket agent called me up to the counter and said that they had found this canister, and I 

said .. .Itotally forgot. You know, can you dispose of it, and that's what I thought had 

happened and was the end of it. 

(!d. at 19:1-7.) 

The TSA disposed ofthe fuel canister. (!d. at 24:1-25:12.) Mr. Tice then boarded the 

aircraft and flew home. 

C. Discussion 

All admitted testimonial documentation, exhibits, and arguments were considered. The 

discussion herein provides only a brief summary and analysis when needed. 

1. FAA's Proposed Civil Penalty and Mt1 Tice's Opposition 

The FAA stated in its January 29,2013 Complaint that pursuant to 49 U.S.C. § 5123(a), 

the "Respondent is liable for a civil penalty of not less than $250 nor greater than $55,000 for 

each violation of the regulations." (Compl., 4.) The FAA proposed a total civil penalty of $600 

for all ten (1 0) violations. 

a) Applicable Penalty Range 

It should be first noted that the FAA's Complaint provided a penalty range that no longer 

exists in law. In 2012, Section 5123(a) was amended to change the $250 minimum penalty to 

zero (0) and increase the maximum penalty from $55,000 to $75,000. Moving Ahead for 

Progress in the 21st Century Act ("MAP-21), Pub. L. 112-141, § 33010(1)(A). Thus, the penalty 

range became $0 to $75,000 per violation. This amendment became effective October 1, 2012-

19 days after Mr. Tice committed the violations, and approximately four months before the FAA ' ~ill~ ~. < 

issued its January 29, 2013 Complaint. Id. § 3. 

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The general rule is that any penalty imposed is limited by the penalty provided by the 

statute at the time the violation occurred. See, e.g., Folsom's Air Service, FAA Order No. 2008-

11 (Nov. 6, 2008) ("At the time that the violations in this case occurred, the Administrator had 

the authority to assess .... ") Thus, under this general rule, the penalty range for consideration in 

Mr. Tice's case would still be $250-$55,000, as stated by the FAA in its January 29,2013 

Complaint. 

However, it has also been held that the general savings clause, 1 U.S.C. § l 09, does not 

bar the retroactive application of statutes that ameliorate a penalty when it appears by "fair 

implication" that Congress intended the ameliorative statute to apply at the time of sentencing 

rather than the time ofviolation. See Dorsey v. United States, 132 S.Ct. 2321,2331-32 (2012). 

The principles of retroactive application and the general savings clause apply both to criminal 

and civil penalties. United States v. Van Horn, 836 F.2d 1235, 1237 (9th Cir.1988) (finding "no 

authority for the proposition that 1 U.S. C. § 109 does not apply to civil penalties and forfeitures 

in the same manner as to criminal fines and forfeitures"). 

The question herein is whether Congress intended for its amendment to the penalty range 

in October 2012 to be retroactively applied. In a committee report accompanying a companion 

bill to the MAP-21, Congress explained that the purpose of removing the $250 minimum penalty 

was "to give the Secretary more discretion and flexibility for situations where a violation is 

minor." H.R. Rep. No. 112-397, at 339 (2012). Thus, it is a fair implication that Congress 

intended the Secretary-and the Administrator by delegation of authority-to apply this 

increased discretion and flexibility not only to future violations, but also to violations that had ... H 

occurred, but for which a civil penalty had not yet been proposed or assessed. 

Based on the forgoing, the civil penalty in this proceeding-either as proposed by the 

FAA or as assessed by this Initial Decision-is not subject to a per violation minimum of $250 .. 

Cf Scott H. Smalling, FAA Order No. 94-31, at 2-3 (Oct. 5, 1994) (FAA amending complaint to 

conform civil penalty to per violation minimum). 

b) FAA Calculation 

The FAA asserted that it had properly applied its sanction guidance policy in calculating 

the appropriate sanction for these violations and that the proposed $600 civil penalty should be 

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adopted. (11/14/13 Tr. 34:1-35:1.) In its materials, the FAA discussed how it used the Hazardous 

Material Sanction Guidance Matrix and a related weighting analysis to consider the statutory 

factors when calculating the proposed civil penalty. (Mot., 3.) The FAA's calculations and 

arguments are fully contained in the record, so only a brief summary is herein. 

Pursuant to 49 U.S.C. § 5123(c) (2006), nine factors must be considered in the 

calculation of a civil penalty for any violations of the HMR: 1) the nature of the violations; 2) 

circumstances surrounding the violations; 3) the extent of the violations; 4) the gravity of the 

violations; as well as Mr. Tice' s 5) degree of culpability; 6) history of prior violations; 7) ability 

to pay; 8) ability to continue to do business; and 9) such other matters that justice requires. 

i) Moderate to maximum aggregate weight, and proposed $600 penalty 

In regard to the first three statutory factors (i.e., the nature, circumstances, and extent of 

the violations), the FAA asserted that its sanction guidance policy allowed it little discretion. 

(11114/13 Tr. 14:17-21 and 15:2-9.) In terms ofthe,.first factor (nature ofthe violation), Mr. Tice 

'.i > t.'.... ··:· 

had offered liquefied petroleum gas, a Class 2.1 hazardous material. According to the sanction 

guidance policy, this material is classified as a "Category A" material, and thus automatically is 

assigned a maximum weight. FAA Order 2150.3B, App. C, ~ 8(b)(1) and Figure C-2.4 In regard 

to the second and third factors (circumstances and extent ofviolations), the sanction guidance 

policy forbids any amount of the hazardous material be carried on a passenger-carrying flight. 

(11/14/13 Tr. 15:3-9.) Thus, the quantity of material in Mr. Tice's canister was immaterial, since 

any liquefied petroleum gas was forbidden aboard an airline passenger plane. As a result, the 

FAA assigned a maximum weight for each of the first three statutory factors. (Mot. 3.) 

In terms ofthe fourth factor (the gravity ofthe violations), the FAA asserted that it was 

not a mitigating factor that the fuel canister was thrown away before Mr. Tice boarded the 

aircraft. It was also not mitigating that there was no damage or harm to persons or property or 

interference with commerce. (Mot., 3; 11/14/13 Tr. 15:10-22 and 16:1-8,) Similarly, in assessing 

4 In its materials the FAA referenced FAA Order 2150.38 (CHG 4), effective May I, 2012. Subsequent changes to 

FAA Order 2150.38 have not affected the sanction policy guidance applicable to violations of the HMRs. 

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the fifth factor (Mr. Tice's degree of culpability), the FAA gave no weight to this category. 5 

(Mot., 3; 11114113 Tr. 16:16-20.) 

The FAA also did not assign weight to the sixth, seventh and eighth factors (i.e., Mr. 

Tice's history of prior violations; ability to pay; and/or ability to continue to do business) 

because it asserted that these factors were inapplicable. The FAA agreed that Mr. Tice has no 

history of previous violations, but explained that a respondent's violation history may be an 

aggravating, but not a mitigating factor. (!d.) Since Mr. Tice had not asserted the affirmative 

defense of being unable to pay the $600 proposed fine, that had not been considered. (11114113 

Tr. 37:3.) Additiol).ally, because Mr. TiCe is an' individual, the FAA could not consider his 

"ability to continue to do business" as a mitigating factor. 

Lastly, with regard to the ninth and final factor (other matters that justice requires), the 

FAA asserted it had already given sufficient consideration to the small amount of fuel contained 

in the canister discovered in Mr. Tice's baggage. (Mot., 4.) 

Thus, after weighing a number of statutory factors, the FAA assigned the violations in 

this case a moderate to maximum aggregate weight for civil penalty assessment and determined it 

should be assigned Offense Category III. (Mot., 4.) Following this determination, the FAA 

referred to its Sanction Guidance Matrix, which prescribed a sanction range of $250 to $1000 for 

these HMR violations.6 (!d.) In applying a moderate to maximum aggregate weight to this 

sanction range, the FAA determined that a sanction between the mid-point ($625) and the 

maximum ($1,000) ofthe range would be appropriate. (!d. at 4.) 

Mr. Tice was initially provided ~ith notice of a $750 proposed civil penalty. (/d.) After 

further consideration of all applicable statutory factors, the FAA issued a Final Notice of 

Proposed Civil Penalty in the amount of $600, which the FAA claimed took into account 

mitigating factors. (!d.) The FAA argued that no further reduction wa~ warranted. 

5 Both parties agreed that Mr. Tice was not the manufacturer of the fuel, and that there was no evidence that 

someone other than Mr. Tice prepared the shipment, or that Mr. Tice had reasonably relied on incorrect information 

about the fuel canister contents from another source. (Mot., 3.) 

6 As discussed above there is no statutory $250 minimum civil penalty in this case. The decision to instruct its 

personnel to propose a minimum penalty under its sanction guidance is within the sole discretion of the Agency. 

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c) Mr. Tice 's Opposition 

Mr. Tice explained that he had made a "completely inadvertent mistake" that he would 

never repeat. (Resp., 1.) He argued that the $600 proposed amount was too high and "unfair." 

(Id. at 2.) If deterrence was the goal of the FAA's formal prosecution, it had already worked. He 

would never make the mistake again. (11114/13 Tr. 42:3-43:8.) He noted that the FAA's 

prosecution of its policy seemed unevenly applied, since he believed that most passengers -

when confronted with confiscated items -were simply notified that such items were prohibited. 

Once the item was removed, the passenger and bag were allowed to proceed without further 

FAA enforcement action. (Ans. 3.) 

Mr. Tice suggested that instead of prosecuting HMR incidents like his, the FAA should 

send administrative warnings to inadvertent, first time offenders. ( 11/14/13 Tr. 39:4-40:21.) 

Alternatively, the FAA could "stay" any imposition of a civil penalty for first time offenders. 

Mr. Tice agreed that it would be appropriate to prosecute "repeat" offenders or pursue increased 

penalties against such individuals. (Id.) In his own case, even if the minimum penalty was $250,. 

Mr. Tice asserted that it should be decreased or stayed. (Id.; 11/14/13 Tr. 37:19-22 and 39:6-11.) 

He had previously offered a $50 settlement, but the FAA had declined it. (11114/13 Tr. 4: 12-14.) 

2. Civil Penalty Analysis and Discussion 

Although the FAA's sanction guidance policy provides some assistance in assessing the 

appropriate civil penalty in a case, the policy itself inst:ucts agents to consider factors which the 

policy may not address, but the law requires. For example, the sanction guidance policy states 

that before determining the aggregate weight of a case, "[ e ]ach case must be evaluated on its 

particular facts," and as such, "many cases may present unique scenarios and aggravating or 

mitigating factors that are not routinely seen." FAA Order 2150.3B, App. C, ~ 8(d) (emphasis 

added). Thus, if all relevant mitigating factors have not been considered to the extent appropriate 

in assessing a civil penalty, it is within the Judge's discretion to consider these factors and adjust 

the penalty in accordance to the law. In addition, although the weighting analysis and penalty 

matrix the FAA applied to Mr. Tice' s case provides assistance in determining the appropriate 

sanction, this application ofthe sanction guidance policy is not binding on administrative law 

judges. See, e.g., Northwest Airlines, FAA Order No. 90-37 at 8 (Nov. 7, 1990) ("Because the 

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law judges who preside over these cases are not FAA personnel, they are not expressly required 

by the provisions of [FAA Order 2150.3A; the predecessor of current 2150.3B] to follow its 

guidance.") 

a) Minimum aggregate weight and $300 Penalty 

In this case, the nature and circumstances of the violation, as well as the consideration of 

the totality of the circumstances, call for a civil penalty in the minimum range. First, while a 

violation free history is not a mitigating circumstance, this was an isolated act of an individual, 

and the likelihood that such an act will not be repeated must be considered as part of the nature 

and circumstances of the violation. See Lambton Doors, Docket No. CPOOS00013, at 14, n.67 

(FAA May 7, 2004) (stating that an isolated occurrence may be considered a mitigating factor). 

Here, Mr. Tice was transporting a used cooking fuel container following an extended hiking trip. 

According to Mr. Tice and undisputed by the FAA, the violations were made inadvertently, as a 

result of Mr. Tice forgetting to dispose of the fuel container prior to checking the baggage. (Ans., 

1.) Since the 2013 incident, Mr. Tice has "changed the way that [he] clean[ s] out [his] backpack 

after trips to prevent this from happening again." (Resp. to Mot., 1.) 

Next, the small quantity of hazardous material offered for transportation weighs in favor 

·of a minimum penalty. It was undisputed that the fuel canister found in Mr. Tice's baggage 

contained only a residue amount (i.e. less than a teaspoon) ofhazmat. (Resp. to Mot., 2.) The 

FAA was not persuasive when it argued that it had adequately considered this fact when it i <:'i• 

reduced the proposed civil penalty from $750 to $600. 

It should be noted that the FAA arrived at a base amount of $625 by a mathematical 

"median" calculation (Mot. 5) before increasing the amount to $750, and then decreasing the 

amount to $600. According to the Sanction Guidance, mathematical calculations are not 

preferred. See FAA Order 2150.3B, App. C, ~ 8(a)(3); see also, FAA Order 2150.3B, 7-9, ~ 5(a) 

(penalty guidance applicable to non-HMR violations). Instead, "the final aggregate weight is 

based on the totality of the facts and circumstances of the case."(ld.) 

In the case herein, the hazmat was a single item, ignorantly offered, that contained less 

than an ounce of fuel. The fuel container was discovered and disposed of, with Mr. Tice's 

willing cooperation, before Mr. Tice and his baggage were aboard the aircraft. While clearly this 

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circumstance is not ideal and should not be repeated, the facts place the case on the minimum 

side in the spectrum of gravity. Mr. Tice is not involved in hazmat shipping and did not intend to 

"ship" hazmat. The hazmat offered did not involve a large quantity of material, and did not 

involve multiple packages-all of which also supports finding a minimum weight. FAA Order 

No. 2150.3B, at C-6, ~ 8(b)(2). 

As noted during the Motion conference, the Sanction Guidance does not identify 

mitigating factors for individual passenger cases in the same way it identifies mitigating factors 

for businesses charged with HMR violations (e.g., ability to continue to do business; training of 

employees, taking prompt corrective action, etc.) (11/14/15 Tr. 17:2-9; 23: 1-14; 35:2-21.) Thus, 

a broader spectrum of subjective consideration is allowed. 

Mr. Tice was very persuasive in his assertions that he is dedicated to aviation safety, and 

will not make a similar mistake again. He was genuine and credible when he stated: "I never 

want to go through this again. This is ayvful." 0lll14/13 Tr. 43:8.) Nevertheless, he did offer a 

forbidden hazmat for shipment. Mr. Tice acknowledged that he had a responsibility for aviation 

safety, as does every individual who seeks to utilize air transportation. We all must exercise 

awareness of each other's safety, and take action to avoid peril in the skies. Thus, the "needs of 

safety and public interest" does require the imposition of a civil penalty. In this case, to promote 

awareness of the importance of individual vigilance in offering baggage for air transport, and to 

provide a reasonable warning to others, a civil penalty of $300 is reasonable and appropriate. 

D. Conclusion 

The assessment in this particular case of a civil penalty in the minimum range is not 

meant to minimize the danger of offering any hazardous material, let alone one "forbidden" on a 

passenger flight, for transportation by air without following the requirements contained in the 

Hazardous Materials Regulations. The violations committed by Mr. Tice are serious. The 

introduction of hazardous materials int~ air commerCe endangers the safety of the flying public, 

even when, as in this case, those materials do not make it onboard the aircraft. 

Based on the foregoing, a civil penalty of $3 00 is assessed for Mr. Tice' s admitted 

violations of the HMR. This $300 civil penalty has sufficient "bite" to promote compliance, and 

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deter future violations by Mr. Tice and others. It also reflects the sanction guidance, the statutory 

factors, and the totality of circumstances in this particular case. 

Pursuant to 14 C.P.R. § 13.232(d), this Initial Decision shall be considered a final order 

assessing civil penalty unless either party files a notice of appeal within 10 days of service of this 

Initial Decision pursuant to 14 C.P.R. § 13.233. 

<.'t' 

Attachment: Service List 

Judg 

u.s. 

Page 11 of 11 
SERVICE LIST- BY U.S. MAIL 

ORIGINAL & ONE COPY 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, DC 20591 

Attention: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building-Suite 2W 1000 7 

Mr. R. Bennett Sargent 

Complainant's Counsel 

Office of the Regional Counsel, ANE-7 

Ne~ England Region 

Federal Aviation Administration 

12 New England Executive Park 

Burlington, MA 01821 

TEL: 781-238-7058 

FAX: 781-238-7055 

Mr. Scott Tice 

Pro se Respondent 

21125 Timberland Road 

Barronett, WI 54813-9540 

scott@ticetech.com 

Judge J .E. Sullivan 

US. Administrative Law Judge 

Office of Hearings, M-20 

ONE COPY 

U.S. Department of Transportation 

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

Washington, DC 20590 

TEL: 202-366-6941 

FAX: 202-366-7536 

FDMS No. FAA-2013-0042 

(Civil Penalty Action) 

7 Service was by U.S. Mail. For service in person or by expedited courier, use the following address: Federal 

Aviation Administration, 600 Independence Avenue, S.W., Wilbur Wright Building-Suite 2W1000, Washington, DC 

20591; Attention: Hearing Docket Clerk, AGC-430.