In The Matter Of: SCOTT TICE Respondent 

### SERVED: June 

### 19, 2015 U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, D.C. ) ) ) ) ) DocketNo. FAA-2013-0042 Case No. 2012NE700211

INITIAL DECISION OF U.S. ADMINISTRATIVE LAWJUDGE


### Held: Violation Nos. 1 -10Proven 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 committingthe ten (10) alleged violations1 ofthe Hazardous Materials Regulations, chargedbythe FAA in its January 29, 2013 Complaint. 

### Civil PenaltyAssessed Mr. Tice is assessed a total civil penalty of$300 for the ten (10) admitted violations.


### A. Short Summary ofthe Case Proceedings On January 23, 2013, theproseRespondent, Mr. Scott Tice, served the FAA with a Request for Hearing? (Compl., 1.) On February 5, 2013, the Regional Counsel for the FAA'sNewEngland 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 ofthe Request for Hearing with its Complaint, so the Request is not part ofthe documentary record herein. The date ofservice ofthe 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 oftheHazardous Materials Regulations ("HMRs"), under 49 C.F.R., Subtitle B, Chapter I, Subchapter C, as identifiedin Count II. (Compl., 3-4,

**~** 14 (a)-(j).) The FAAproposed a total civil penalty of$600 for the ten ( 1 0) HMRviolations. 

### (!d. at 4, Count III.) On April 22, 2013, Mr. Tice filed a late ·Answerto the Complaint ("Answer"). On May 1, 2013, an Order Accepting the ProSe Respondent's Response, Finding Good Cause Exists to Acceptthe Late Answer, and Granting/Denying Other Reliefwas filed. On May 21, 2013, an Order Granting FAA Renewed Motion to Deem Allegations Admitted and Granting/Denying OtherReliefwas filed. This May 21, 2013 Order found that Mr. Tice had admitted to committingthe ten (10) all7ged violations oftheHMRs chargedbythe FAA in its January 29,2013 Complaint. However, the May 21,2013 Order also found that Mr. Tice had not admitted to the appropriateness oftheFAA'sproposed $600 civil penalty. On August 20,2013,the FAA filed its Motion for Decision on Issue ofCivil Penalty ("Motion"), in which it sought pre-hearing, dispositive reliefon the FAA's proposed civil penalty. (Mot., 7.) On September 24,2013, Mr. Tice filed his response to the FAA's Motion ("Response"). OnNovember 14, 2013, the parties convenedby telephone for a Motion Conference, and presented oral argument onthe FAA's August 20,2013 Motion for Decision on Issue ofCivil Penalty. On September 8, 2014, an Order Denyingthe FAA'sMotion for Dispositive Reliefunder Summary Judgment Review ("Summary Judgment Order") was filed. This Summary Judgment Order deniedthe FAA's Motion for pre-hearing, dispositive reliefand found that genuine issues I ofmaterial fact remained in dispute regarding the calculation ofthe proposed civil penalty. Pursuantto the parties' oral agreement on November 14, 2013, the parties waived the opportunity for hearing andthe submission oflive testimony. Theparties agreed that a decision onthe appropriate civil penalty should be reached on the parties' filed, written submissions,
Page 2 of 11which included information that would be admissible as testimonial evidence at a hearing. (11/14/13 Tr. 50-52; Summary JudgmentOrder, 6.) 

### B BriefSummary ofCase Facts All admitted facts were considered, but only abriefsummary is providedherein. In 2012 Mr. Tice flew from Wisconsinto northern Vermontto go on a backpack, hiking trip and then visithis sister. (Ans. 1; 5/16/13 Tr. 11:22-12:10) Upon arrival in Vermont, he purchased an 8-ounce container ofMSR IsoPro Premium Blend Fuel at a local camping store.

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

backpackingtrip on the Long Trail. (Ans., 1.) After one week, Mr. Tice ended his hiking trip in Manchester, Vermont, which is where his sister lived. Bythattime, the fuel in the canister was "almost all" used. (!d. at 2.) Mr. Ticethen 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 outthe fuel canisterwith the othertrash, because he had packed it inside his two titanium cooking pots, which were wrapped inside Mr. Tice'stent and sleepingbag. (!d. at 1-2) On September 11, 2012, after his visit with his sisterhad ended, Mr. Tice checkedhis baggage at Rutland SouthernVermont Regional Airport, in order to fly backhome. (!d. at 1; Compl., 1.) Before Mr. Tice boarded Cape Air Flight 60, Transportation SecurityAdministration ("TSA") personnel initiated an inspection ofMr. 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.) Itheld less than

**on~** teaspoon ofMSR IsoPro Premium Blend Fuel inside. 3 (Resp., 2.) Itwas undisputedthatMSRIsoPro Premium BlendFuel is a hazardous material ("hazmat") under49 C.F.R. 

### § 172.101. The proper shipping name is "Petroleum gases, liquefied." Itis in hazard class 2.1 (flammable gas) and has an assigned identification number of UN1075. Itis forbidden for transportation on passenger-carrying aircraft regardless ofthe amount. 49 C.P.R. 

### § 172.101; 5/16/13 Tr. 22:20-23:6.

3 Mr. Tice estimated thatthe amount was approximately 4/1 Os of 1ounce. (Ans. 2.) Because the canister was thrown away by TSA at the airport, Mr. Tice could not verify the exact amount remaining. (!d.) Page 3 of 11Itwas also undisputed that the Vermont Regional Airport was a "very small airport." (5/16/13 Tr. 18:22.) When the TSA inspected Mr. Tice'sbag, he was nearby, waiting to board the aircraft. Airportpersonnelthen notified Mr.

**Tic~** about the TSA's discovery ofthe forbidden fuel can: I didn't actually see them go through the bag, but after they wentthrough the bag, the ticket agent calledme up to the counter and said that they had found this canister, and I said...Itotallyforgot. You know, can you dispose ofit, and that's what I thought had happened and was the end ofit. (!d. at 19:1-7.) The TSA disposed ofthefuel 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 abriefsummary and analysis when needed. 1. FAA's Proposed Civil Penalty and 

### Mt1 Tice's Opposition The FAA stated in its January 29,2013 Complaintthat pursuantto 49 U.S.C. 

### § 5123(a), the "Respondentis liable for a civil penalty ofnot less than $250 nor greaterthan $55,000 for each violation ofthe regulations." (Compl., 4.) The FAA proposed a total civil penalty of$600 for all ten (10) violations. 

### a) Applicable PenaltyRange Itshouldbe first noted that the FAA's Complaintprovided a penalty range that no longer exists in law. In 2012, Section 5123(a) was amended to changethe $250 minimum penaltyto zero (0) and increase the maximum penaltyfrom $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 amendmentbecame effective October 1, 2012- 19 days after Mr. Tice committedthe violations, and approximately four months before the FAA
'

**~ill~ ~.**  < issued its January 29, 2013 Complaint. 

### Id. § 3.

Page 4 of 11The general rule is that any penalty imposed is limitedby the penalty provided by the statute at the time the violation occurred. See, e.g., Folsom'sAirService, FAA OrderNo. 2008- 11 (Nov. 6, 2008) ("Atthe time thatthe 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, 1U.S.C. § 

### l09, does not barthe retroactive application ofstatutes that ameliorate a penalty when it appears by "fair implication" that Congress intendedthe ameliorative statuteto apply at the time ofsentencing rather thanthe time ofviolation. See Dorsey v. UnitedStates, 132 S.Ct. 2321,2331-32 (2012). The principles ofretroactive application and the general savings clause apply both to criminal and civil penalties. UnitedStates v. Van Horn, 836 F.2d 1235, 1237 (9th Cir.1988) (finding "no authority for the propositionthat 1U.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 amendmentto the penalty range in October 2012 to beretroactively applied. In a committee report accompanying a companion bill to the MAP-21, Congress explained that the purpose ofremoving 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 intendedthe Secretary-andthe Administratorby delegation ofauthority-to apply this increased discretion and flexibility not only to future violations, but also to violations that had

... H occurred, butfor which a civil penaltyhad not yet been proposed or assessed. Based onthe forgoing, the civil penalty inthis proceeding-either as proposed bythe FAA or as assessed bythis Initial Decision-isnot subjectto aper violation minimum of$250
.. CfScott

### H. Smalling, FAA OrderNo. 94-31, at 2-3 (Oct. 5, 1994) (FAA amending complaintto conform civil penaltyto perviolation minimum). b) FAA Calculation The FAA asserted that it hadproperly applied its sanction guidance policy in calculating the appropriate sanction for these violations and that the proposed $600 civil penalty should be Page 5 of 11adopted. (11/14/13 Tr. 34:1-35:1.) In its materials, the FAA discussed how it used the Hazardous Material Sanction Guidance Matrix and arelated weighting analysis to considerthe statutory factors when calculatingthe proposed civil penalty. (Mot., 3.) The FAA's calculations and arguments are fully contained in the record, so only abriefsummary is herein. Pursuantto 49 U.S.C. § 5123(c) (2006), nine factors must be considered in the calculation ofa civil penalty for any violations ofthe HMR: 1) the nature ofthe violations; 2) circumstances surrounding the violations; 3) the extent ofthe violations; 4) the gravityofthe violations; as well as Mr. Tice's 5) degree ofculpability; 6) history ofprior violations; 7) ability to pay; 8) ability to continue to do business; and 9) such other matters thatjusticerequires. i) Moderate to maximum aggregate weight, andproposed $600 penalty In regard to the first three statutory factors (i.e., the nature, circumstances, and extent of the violations), the FAA asserted thatits 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 ofthe hazardous material be carried on a passenger-carrying flight. (11/14/13 Tr. 15:3-9.) Thus, the quantity ofmaterial in Mr. Tice's canister was immaterial, since any liquefied petroleum gas was forbidden aboard an airline passengerplane. As a result, the FAA assigned a

### maximum weightfor each ofthe 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. Itwas also notmitigating that there was no damage orharm 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 ofthe HMRs. Page 6 of 11the fifth factor (Mr. Tice's degree ofculpability), the FAA gave no weight to this category. 5 (Mot., 3; 11114113 Tr. 16:16-20.) The FAA also did not assign weightto the sixth, seventh and eighth factors (i.e., Mr. Tice'shistory ofprior violations; abilityto 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 ofprevious violations, but explainedthat arespondent's violation history may be an aggravating, but not a mitigating factor. (!d.) Since Mr. Tice had not asserted the affirmative defense ofbeing 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 "abilityto continue to do business" as a mitigating factor. Lastly, withregard to the ninth and final factor (other matters thatjusticerequires), the FAA asserted it had already given sufficientconsiderationto the small amount offuel contained inthe canister discovered inMr. Tice'sbaggage. (Mot., 4.) Thus, after weighing a number ofstatutory 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 prescribeda sanction range of$250 to $1000 for these HMRviolations.6 (!d.) In applying a moderate to maximum aggregate weight to this sanction range, theFAA determined that a sanctionbetween the mid-point ($625) and the maximum ($1,000) oftherange wouldbe appropriate. (!d. at 4.) Mr. Tice was initially provided



### ~ith notice ofa $750 proposed civil penalty. (/d.) After further consideration ofall 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 ofthe fuel, and that there was no evidence that someone otherthan 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 ofthe Agency. Page 7 of 11c) Mr. Tice 's Opposition Mr. Tice explainedthat he had made a "completelyinadvertent mistake" that he would never repeat. (Resp., 1.) He argued that the $600 proposed amount was too high and "unfair." (Id. at 2.) Ifdeterrence was the goal ofthe FAA's formal prosecution, ithad already worked. He would never make the mistake again. (11114/13 Tr. 42:3-43:8.) He noted thatthe FAA's prosecution ofits policy seemedunevenly applied, since he believed that mostpassengers - 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 suggestedthat instead ofprosecuting HMRincidents 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 ofa civil penalty for first time offenders. Mr. Tice agreed that it would be appropriate to prosecute "repeat" offenders orpursue increased penalties against such individuals. (Id.)In his own case, even ifthe 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 hadpreviously offered a $50 settlement, butthe FAA had declined it. (11114/13 Tr. 4: 12-14.) 2. Civil PenaltyAnalysis and Discussion Althoughthe FAA's sanction guidance policy provides some assistance in assessing the appropriate civil penalty in a case, the policy itselfinst:ucts agents to consider factors which the policy may not address, butthe law requires. For example, the sanction guidance policy states thatbefore determining the aggregate weight ofa 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 thatare not routinely seen." FAA Order 2150.3B, App. C,

**~** 8(d) (emphasis added). Thus, ifall relevant mitigating factors have notbeenconsidered to the extent appropriate in assessing a civil penalty, it is withinthe Judge's discretion to considerthese factors and adjust the penaltyinaccordance 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., NorthwestAirlines, FAA OrderNo. 90-37 at 8 (Nov. 7, 1990) ("Because the Page 8 of 11lawjudges who preside over these cases are not FAA personnel, they are not expressly required by the provisions of[FAA Order 2150.3A; the predecessor ofcurrent 2150.3B] to follow its guidance.") a) Minimum aggregate weight and $300 Penalty In this case, the nature and circumstances ofthe violation, as well as the consideration of the totality ofthe 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 ofan individual, andthe likelihoodthat such an actwill not be repeated mustbe considered as part ofthe nature and circumstances ofthe violation. See Lambton Doors, DocketNo. 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 ofMr. Tice forgetting to dispose ofthe fuel containerpriorto checking the baggage. (Ans., 1.) Since the 2013 incident, Mr. Tice has "changed the waythat [he] clean[s] out [his] backpack aftertrips to prevent this from happening again." (Resp. to Mot., 1.) Next, the small quantity ofhazardous material offered for transportation weighs in favor ·ofa minimum penalty. Itwas undisputed thatthe 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 notpersuasive when it arguedthat it had adequately consideredthis fact when it
i <:'i• reduced the proposed civil penalty from $750 to $600. Itshould be noted thatthe FAA arrived at abase amount of$625 by a mathematical "median" calculation (Mot. 5) before increasing the amount to $750, and then decreasing the amount to $600. Accordingto 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-HMRviolations). Instead, "the final aggregate weight is based on the totality ofthe facts and circumstances ofthe case."(ld.) In the case herein, the hazmat was a single item, ignorantly offered, that contained less than an ounce offuel. 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 Page 9 of 11circumstance is not ideal and should not be repeated, the facts place the case on the minimum side in the spectrum ofgravity. Mr. Tice is not involved in hazmat shipping and did not intend to "ship" hazmat. The hazmatoffered did notinvolve a large quantity ofmaterial, and did not involve multiple packages-all ofwhich 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 HMRviolations (e.g., ability to continue to do business; training of employees, takingprompt corrective action, etc.) (11/14/15 Tr. 17:2-9; 23: 1-14; 35:2-21.) Thus, abroader spectrum ofsubjective consideration is allowed. Mr. Tice was verypersuasive in his assertions that he is dedicated to aviation safety, and will not make a similarmistake again. He was genuine and credible when he stated: "I never wantto go throughthis 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 ofeach other's safety, and take action to avoid peril in the skies. Thus, the "needs of safety and public interest" does require the imposition ofa civil penalty. In this case, to promote awareness ofthe importance ofindividual vigilance in offering baggage for air transport, and to provide areasonable warningto others, a civil penalty of$300 is reasonable and appropriate. D. Conclusion The assessment in this particular case ofa civil penalty in the minimum range is not meant to minimize the danger ofofferingany 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 ofhazardous materials

**int~** air commerCe endangers the safety ofthe flying public, even when, as inthis case, those materials do not make it onboardthe aircraft. Based onthe foregoing, a civil penalty of$300 is assessed for Mr. Tice's admitted violations ofthe HMR. This $300 civil penalty has sufficient "bite" to promote compliance, and
Page 10 of 11deter future violations by Mr. Tice and others. It also reflects the sanction guidance, the statutory factors, and the totality ofcircumstances in this particular case. Pursuantto 14 C.P.R. § 13.232(d), this Initial Decision shall be considered a final order assessing civil penalty unless eitherparty files a notice ofappeal within 10 days ofservice ofthis Initial Decisionpursuant to 14 C.P.R. 

### § 13.233.

<.'t'

Attachment: Service List Judg 

## u.s.

Page 11of 11SERVICE LIST- BY U.S. MAIL ORIGINAL & ONE COPY Federal AviationAdministration 800 Independence Avenue, S.W. Washington, DC 20591 Attention: Hearing Docket Clerk, AGC-430 Wilbur Wright Building-Suite2W10007

Mr. R. Bennett Sargent 

### Complainant's Counsel Office ofthe Regional Counsel, ANE-7

**Ne~** EnglandRegion Federal Aviation Administration 12 NewEngland Executive Park Burlington, MA 01821 TEL: 781-238-7058 FAX: 781-238-7055 Mr. ScottTice 

### Pro se Respondent 21125 TimberlandRoad Barronett, WI 54813-9540 scott@ticetech.com Judge J.E. Sullivan 

### US. Administrative LawJudge Office ofHearings, M-20 ONE COPY

U.S. DepartmentofTransportation 1200NewJersey 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.