In The Matter Of: COASTAL AIR 

### SERVED: DECEMBER28, 2012

U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS WASHINGTON, DC
) ) Docket No. FAA-2011-1005 ) TRANSPORT, INC. ) 

### ) 'CaseNo. 1010-S0-700037 Respondent )

ORDER GRANTING PARTIAL SUMMARYJUDGMENT \,
..,) IN FAVOR OFEACH PARTY, CONFIRMING THE HEARING DATE ON LIMITED ISSUES, AND GRANTING/DENYING OTHERRELIEF

On February 23, 2012 the FAA filed a Motion for Decision on the Pleadings, or in the Alternative, Motion for Hearing on Sanction Only. On March 23, 2012 the

### prose Respondent submitted an Answer to Complainant's Motionfor Decision ShouldNot Be Granted [sic]. On April4, 2012 the Respondent submitted
an Answer to FAA's Motion for Decision Should Not Be Granted [sic]. OnJuly 19, 2012 the Respondent filed An Opposition to Hearing on Sanction Only. On July 23, 2012 the FAA filed an Agency Briefin Support ofits Alternative Motion for Hearing on Sanction Only. The FAA also filed an Agency Motion to Strike Respondent's Opposition to Hearing on Sanctions Only, on the grounds ofun-timeliness. On Monday, July 30, 2012, the parties appeared by telephone for the Rule 16 Litigation Scheduling Conference. During this Thitd Rule 16 Litigation Conference, oral rulings were made regarding the Motions identified above. These oral rulings were codified in writing in the July 31,2012 Order Denying FAA Motion to Strike Respondent's Opposition to Hearing on Sanctions Only, and Granting/Denying OtherReliefwas filed. That same day, on July 31, 2012, an Order Setting Litigation Dates and Procedures was filed. Among otherthings this Order directed the

### pro se Respondent to file, on or before OctoberOnDecember 6, 2012 the parties appeared by telephone for continued.oral argument on the FAA's Motion for Hearing on Sanction Only. The Respondent continued to appearprose. This written Order Granting Partial Summary Judgment codifies and supplements the December 6, 2012 oral rulings.


### A. Notice ofViolation and Proposed Penalty Assessment On or about September 8, 2011 the Federal Aviation Administration's (FAA) Division Administrator for the Southern Region filed a Complaint in which the FAA alleged that the Respondent, Coastal Air Transport, Inc., hadcommitted sixteen (16) violations ofthe Hazardous Materials Regulations, under 14 C.F.R. Subchapter C. The FAA proposed a total penalty of $59,600 for the violations.


### B. Standard ofReview for SummaryJudgment Pursuant to 14 C.P.R.§ 13.218(f)(5), a party may file a motion for a decision on the merits, in advance ofa testimonial hearing, when aparty asserts that there is no disputed material issues offact to be heard. Such a motion is reviewed under the same·standard as a summary judgment motionpursuantto Civ. R. 56. The FAA's Motion for Hearing on SanctionOnly seeks
a decision on the merits ofthe alleged violations. Pursuant to 14 C.P.R. § 13.218(f)(5).and Civ. R. 56(a), the FAA's pre-hearing request for reliefis a Motion for Partial Summary Judgment on the merits ofthe alleged violations. The purpose ofsummaryjudgmentis "to isolate, and thenterminate, claims and defenses that are factually unsupported." Steven Baicker-McKee, et.al, Federal CivilRulesHandbook, 1120 (West Publishing, 19th ed. 2012). Pursuant to Civ. R. 56(a), a summaryjudgmentmotion may be granted if"the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as amatteroflaw." SeeAnderson v. LibertyLobbyInc., 477 U.S. 242, 247-48 (1986); Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). Pursuant to Rule 56(f), summary judgment may also be granted to a non-moving party, after all parties have been given notice and
a reasonable time to respond. Any party seeking summary.judgment must point to admissible facts in support ofthe motion. Pursuantto Civ. R. 56 (c)(l)(A), specific facts alleged by either party maybe asserted

. Page3of19D. Admissibility of

### FAA's Summary Judgment Factual Proof As part ofits July 23, 2012 Agency Briefin Support oflts Alternative Motion for Hearing on Sanction Only, the FAA submitted the following thirteen (13) Exhibits: 1. December 11,2009 FAA letterto Mr. Michael W. Foster, President, Coastal Air Transport Inc. - 2 pages 2. U.S. Postal Service certified mail receipt addressed to "M. W. Foster" and date stamped December 21,2009

- 1page 3. January 14, 2010 Coastal Air Transport letter to Juan Bulted, San Juan Security Field Unit -1 page 4. February 28, 2001 Hovensa Material Safety Data Sheet (MSDS)

- 7 pages 5. October 21, 2009 Bill ofLading (partially unreadable)- 1page 6. Partialcopyof49C.F.R.§172.101 -2pages 7. November 2, 2009 U.S. Customs and Border Protection Memorandum to FAA Hazmat CoordinatorJuan Bulted- 1page 8. 9 Photographs ofthe exterior, interior, and contents ofa fiberboard box- 9 pages 9. December 30, 1999 Statement ofIntent regarding dangerous goods for air transport -1 page 10. October 1, 2007 Matrix and Definitions (Figure C-1) -1 page 11. October 1, 2007 air carrier and other aircraft operator violations -1 page 12. October 1, 2007 Classification ofAir Carrier and Operator -1 page 13. Copy of49 C.F.R. §175.10 and 49 §175.20

.. 4 pages OnNovember 6, 2012 the FAA filed the Agency [sic] Supplemental Filing in Support of Its Motion for Hearing on Sanction Only. Included in the Supplemental summaryjudgmentfiling
were four (4) new exhibits, which the FAA marked as Exhibits 1, 2, 3, and 4. To avoid confusion and duplicate numbering, these newFAA exhibits have been re-marked as FAA ExhibitNos. 14, 15, 16, and 17. 14. Shippers Declaration SpecimenDesignfor Manual Completion-! page 15. Copy of49 C.F.R. § 172.312 -1 page Page 

### 5 of19

### 2. Respondent's Motion to Dismiss, signed by Michael Foster and dated March 23, 2012-2 pages 3. Respondent's Opposition to Hearing on Sanction Only, signedby Michael Foster and dated July 9, 2012- 1page 4. Respondent's Answer to Initial Discovery, signed by Michael Foster and dated August 2, 2012-8 pages 5. Respondent's Answerto General Discovery and Production ofDocuments, signed by· Michael Foster and dated August 7, 2012-:-2 pages
In addition, on November 8, 2012 the

### prose Respondent filed the Respondents [sic] Response to FAA Motion for Hearing on Sanction Only. In this Response, the Respondent included the following two (2) Summary Judgment exhibits, marked as ExhibitNos. 1

### and 2. To avoid confusion and duplicate numbering, these new Respondent exhibits are re-marked as Respondent's Exhibit Nos. 6 and 7. 6. A photograph ofthe exterior ofa fiberboard box- 1page (NB: The Respondent's Exhibit No.6 was an exact duplicate ofthe FAA's Exhibit No.8, page 6). 7. A photograph oftwo Hazcom Labels (partially unreadable)- 1page (NB: The Respondent's Exhibit No.7 appears to be a duplicate ofthe FAA's Request for Admissions No. 16).
The FAA did not object to any ofthe Respondent's identified Exhibits. Having reviewed all seven (7) oftheRespondent's Exhibits, Respondent's ExhibitNos. 1-6 are deemed admissible as testimonial and documentary evidence. The Respondent's Exhibit No.7 is deemed inadmissible and not considered for lack ofreadability. However, the FAA's Request for Admission No. 16 (photographs oftwo Hazcom Labels) was readable and considered in reviewing the Respondent's case. Undisputed Facts 

### Pursuant to 14 C.P.R. §13.218(t)(5) and Civ. R. 56, all oftheparties' admitted Exhibits,

Page 7 

### of19

### 11. Diesel fuel is a hazardous material, regulated by the Hazardous Materials Regulations (HMR). 12. On October 21, 2009 Captain Foster, the pilot-in-command ofthe Respondent's aircraft, signed a Bill ofLading asserting that he was accepting for trat).sport on flight DQ 413 diesel fuel with an identification number ofUN #1993, with a hazard class of"3" and a packing group of"III". 13. On October 21, 2009 Captain Foster loaded the two (2) pints ofdiesel fuel, packed inside a fiberboard box, in the cargo compartment ofthe aircraft. 14. The label affixed to the exterior ofthe fiberboard box identified its contents as an excepted quantity ofa Class

### 3 hazardousmaterial. 15. The shipped fiberboard box did notinclude a MSDS (Material Safety Data Sheet), shippingpapers, or other hazardous markings or warnings on the box. 16. On October 21, 2009 Captain Foster transported the fiberboard box in the cargo compartment during flight DQ 413.

G. BriefDiscussion ofthe Parties' Arguments 

### The FAA alleges that the Respondent, Coastal Air Transport, Inc, has committed sixteen (16) violations ofthe Hazardous Materials Regulations (HMR), 49 C.F.R., Subchapter C. The FAA alleges that all sixteen (16) violations occurred on or about October 21, 2009, when the Respondent accepted from a customer one (1) 

### box for air shipment, and transported that box via air. The dispute is focused in nature. Essentially, the FAA alleges that the box transported by the Respondent on or about October 21, 2009 contained hazardous material that was not properly

' 

### . packaged, labeled or shipped by air transport pursuant to the HMRs. The Respondent argues that such packaging, labeling, and otherrequirements do not apply, because the shipment was a small, two (2) pint shipment ofdiesel fuel, properly packaged and exempted by 49 C.F.R. 

### § 175.10(a)(4). The Respondent also argues that the 2pints ofliquid diesel fuel it shipped was no differentin danger level, and possibly less dangerous,**~han** 

### the small amounts (i.e., 1.3 gallons) ofliquid alcoholic beverages allowed by 49 C.P.R. §175.10(a)(4). Page 

### 9 of19support ofits defense. But49 C.F.R. §175.10(a)(4) does not provide an exceptionfor shipping small quantities ofdiesel fuel. Instead, 49 C.F.R. §175.10(a)(4) allows for the limited transportation by air ofalcoholic beverages containing not more than 24% alcohol byvolume, if, unsealed, orup to 70% alcohol byvolume whenin an unopened retail package not exceeding 5 liters (i.e., 1.3 gallons). The Respondent arguedthatbecause alcoholic beverages and diesel fuel are both flammable liquids, they are equally dangerous (or non-dangerous) when shipped in small quantities. This is notpersuasive. The HMRs do not reflect oradopt the Respondent's opinion that shipping smallamounts ofdiesel fuel is analogous to shipping small amounts ofalcoholic beverages. Instead, the HMRs unequivocally assert that shipping diesel fuel aboardaircraftis dangerous, must be strictlyregulated, and that suchregulations must be strictly followed.6



### H. BriefDiscussion ofViolations Proved, Not Proved, and Dismissed As noted above, it is the moving party'sburden in a summaryjudgmentdispositive motionto first establish a

### prima facie case by submitting orcitingto a variety ofadmissible documents and declarations thatprove the specific facts alleged. Ifa

### prima facie caseis made, the burden then shifts to the non-moving party to show, by affidavit orotherwise, that a genuine dispute ofmaterial fact remains for the fact

...finder to resolve. A summaryjudgmentmotionmay be granted ifthe movant shows thatthere is no genuine dispute as to any material fact and the movant is entitled tojudgment as a matter oflaw. Summaryjudgmentmay also be grantedto a non-movingparty, after all parties have had notice and a reasonable time to respond. The FAA's alleged sixteen (16) violations are discussed belowinthe same order as they
are listed inthe FAA's Complaint. A briefdescription ofeachviolation isprovided, followed by the ruling, and a briefexplanation ofthe ruling.
1. 49 CFR § 171.2 (a) (Acceptance ofhazardous material for transportation aboard an aircraft when suchmaterial wasnot properly classed, described, packaged, marked, labeled,

6Forexample (not inclusive), 49 C.P.R. § 173.27(f) refers the readerto 49 C.P.R. § 173.4(a) for the regulations governing combination packages ofexceptedquantities [sic] ofliquid hazardous materials intended for transportation by aircraft. 49 C.P.R. § 173.4a (b)(2) allows for limitedtransportation ofClass 3hazardous materials so long as packagings are limited. Pursuantto 49 C.P.R. § 173.4b (b), the de minimis exception for innerpackaged receptacles categorized as Group III Class 3 material is limited to one (1) mL (0.03 ounce) for authorized liquids. Pursuantto 49 C.P.R. § 173.4a (d), the maxiinum limits for outerpackaging for a Group Ill liquidhazardous material is 1 L (0.2 gallons). Page 11 of194. 49 CFR 

### § 175.20 (a) (Failure to ensure training ofhazmatemployees): 

### Violation No.4Dismissed as a MatterofLaw. The FAA asserted that FAAExhibitNos. 1and 3 factually supportedthis violation. As the administrative courtnoted during oral the December 6, 2012 oral argument, anFAA accusation and a request for discovery in FAA ExhibitNo. 1is notproofofa hazmattraining violation. 9 During oral argument onDecember 6, 2012, the FAA argued thatbased onthe response contained inthe Respondent's January 14, 2010 letter (Exhibit No.3), itcould be assumed that the Respondent was answering the FAA's December 6, 2012letter,10 and thatthe Respondent's'discovery enclosures (notprovided) hadbeen inadequate. In essence, the FAAprovided very little factual evidence (ifany) in support ofthis violation, and instead relied substantially on assumptions and arguments. However, this lack offactual support is overshadowed bythe fact that the cited regulation -49 CFR 

### § 175.20 (a)- does not exist. The regulatiop was amended in2006, removing both the cited subsection (a) and its cited references. 71 Fed. Reg. 14586, 14594 (Mar. 22, 2006). The FAAhas failed to charge the Respondent with a valid safety regulation, and has failed to give the Respondent propernotice ofregulatory authority supporting an alleged violation. This citation must be dismissed as a matter oflaw.
5. 49 CFR 

### § 175.20 (b) (Failure to train the hazmat employees involved in shipping hazardous material): 

### Violation No. 5 

### Not Proved. The FAA asserted thatFAAExhibitNos. 1and 3 factually supported this violation. As discussed above (in ViolationNo.4), the FAA has failed to present adequate facts to support a 

### prima facie case for this violation.

9 FAA ExhibitNo. 1was a December 1I, 2009 letterfrom FAA employee Mr. Butted (in San Juan, PR) to the Respondent (in St. Croix, VI), accusing the Respondent ofaHazmat violation, andrequesting (among otherthings) a copy ofthe Respondent's hazardous materials training curriculum. ExhibitNo. 1states it was mailed by certified mail, but does not include the certified mail identification number. FAA ExhibitNo. 3 was aJanuary 14, 2010 Respondent letterto Mr. Bulted, in which the Respondent was answering an FAA letter "received January 4, 2010." 10 Itshould be noted that there is no proofthat the Respondent's January 14, 2010 letter (ExhibitNo.3) was in response to the FAA's December 11, 2009letter (ExhibitNo. 1). In fact, FAA ExhibitNo.2 demonstrates that on December21, 2009 (l0days after December II,2009) the FAA mailed a certified letter (No. 7008 I830 0000 5608 4635) to the Respondent, and the Respondentreceiveq it on January 2, 2010. Taking all inferences in a light most favorable to the Respondent, this is likely a a different letter, since the FAA's Exhibit No. 1 (dated December 1I, 2009), is dated ten (10) days priorto the certified mail documentation in Exhibit No.2 (dated December2I,2009). Page 13 of19shippingpaper asrequired): Violation No. 8 Proved.

· This violation is proven by the undisputed facts and bymultiple exhibits deemed admissible as evidence, as explained above inthe discussion regarding ViolationNo. 1,

9. 49 CFR 

### § 175.30 (a) (3): Acceptance ofhazardous material for transportation aboard an aircraft when the hazardous material was not properlylabeled ormarked as required): Violation No. 9 Proved. This violation is proven by the undisputed facts and bymultiple exhibits deemed admissible as evidence, as explained above in the discussion regarding ViolationNo. 1. While there is no doubt that the Respondent shipped the diesel fuel in a fiberboard specification box, and labeled the two (2) innerpackaged plastic bags as "Hazmatpac", this was not in compliance with the hazmatregulations regarding the size ofthis diesel fuel shipment.

10. 49 CFR 

### § 175.30 (b)(Failure ofthe aircraft operatorto immediately inspectthe hazmatpackage, outside container, or overpackbefore placing it aboard the aircraft): Violation No. 10 NotProved. The FAArepeated its allegation ofthis violation in its summaryjudgmentmaterials, but does not cite to any factual evidence in support. 11/6/12 FAA Supplemental, page 6-7. During the December 6, 2012 oral argument, the FAA argued that ifthe package had been "properly" inspected, the Respondent would not have shipped it as originallypackaged. This is an assumption. In contrast, Mr. Foster argued that as the aircraft pilot in command, he did in fact immediately and properly inspect the hazmatpackage before placing it aboutthe aboardthe aircraft. The question is whether animmediate inspection occurred, and whetherthe inspection
was in compliance with the regulation cited. There are genuine issues ofmaterial fact and law regarding this accusation, and the violationremains for litigation at the hearing.

11. 49 CFR 

### § 175.30 (e)(2) (Failure to take reasonable steps to establish that the proper shipping names, identification numbers, labels and special handling instructions appearing onthe inside packages were clearly visible are reproduced onthe outside ofthe overpack): Violation No. 11 Not Proved. It should be noted that this allegation is almost identical to ViolationNo. 12 below. The Page 15 of19was carrying a shipment ofhazardous material. Itwas undisputed that none ofthese boilerplate forms were utilized. The FAA did not file any documentation or declarative testimony asserting such boilerplate sample forms were required. During the December 6, 2012 oral argument, the FAA was asked to specify what "information" was required, since there was no paragraph attached that provided the data. The FAA acknowledged that the charge was missing specific information, but argued that the absence ofdocumentation was sufficient. The FAA has failed to make a

### prima facie case, and the violation remains for litigation at thehearing.

14. 49 CFR § 175.33 (b) (Failure to have a copy ofthe written notification available to the pilot in command (PIC), and failure to maintain emergencyresponse information required by the regulations during transport): Violation No. 14 Not Proved. As in Violation No. 13 above, the FAAassets that this violation is proved, but cites only to Exhibit 17 (originally marked as FAA ExhibitNo.4) as proof. 11/6/12 FAA Supplemental, page 8-9. During the December 6, 2012 oral argument, the FAA argued that since there was no shipper's declaration it could be assumed that the Respondent did not have emergency information, and therefore the violation was proved. In response, the Respondent asserted that it had a copy ofboth the written notification ofthe shipment and the emergency response information during transport. The FAA has failed to make 

### aprimafacie case, and the violation remains for litigation at the hearing.
15. 49 CFR § 175.35 (a) (Failure to ensure a copy ofthe shippingpapers accompanied the shipment as required by the regulations): Violation No. 15Uismissed as a Matter ofLaw. The FAA pointed to the lack ofany shipper's declaration in the proffered evidence, and argued that the lack ofsuch evidence therefore proved its charge. On a factual basis, the FAA failed to make a

### prima facie case. This is overshadowed, however, by the fact that the cited regulation has not existed since 2006. 71 Fed. Reg. 14586, 14594 (Mar. 22, 2006). The FAA was orally advised ofthisproblem onDecember 6, 2012, and given an opportunity to check the regulations. 12/6/12 Transcript; December 19,2012 Order Granting the FAA's Motionto Supplement the RecordNunc Pro Tunc and Granting/Denying Other Relief. The FAA did not file any further authority or explanation. The FAA has failed to charge the Respondent with a Page 17 

### of19Sanction Only is granted in part. There is no genuine issue as to any material fact on Violation Ncis. 1, 2, 3, 8, and 9. The FAA is entitled tojudgment as a matter oflaw onViolation No. 1 (49 CFR § 171.2 (a)); Violation No.2 (49 CFR §171.2 (b); Violation No.3 (49 CFR § 175.3); Violation No.8 (49 CFR § 175.30 (a) (2)); and ViolationNo.9 (49 CFR § 175.30 (a) (3)). 2) The civil penalty to be imposed for proven Violation Nos. 1, 2, 3, 8, and 9 is reserved for the January 2013 hearing. 3) Pursuant to 14 C.F.R. §13.218 and Civ. R. 56, the FAA's Motion for Hearing on Sanction Only is denied in part as a matter offact and lawregarding Violation Nos. 5, 6, 7, 10, 11, 12, 13, and 14. There are genuine issues as to material facts and law regarding these violations, and they remain set for hearing onthe merits in January 2013. 4) Pursuant to 14 C.F.R. §13.218 and Civ. R. 56, the FAA's Motion for Hearing on Sanction Only is also denied in part regarding Violation Nos. 4, 15, and 16, because these alleged violations are based on non-existent regulations. 5) Pursuant to 14 C.F.R. §13.218 and Civ. R. 56, the Respondent, Coastal Air Transport, Inc. is entitled to summaryjudgment, as a matter oflaw, on ViolationNo. 4 (49 CFR § 175.20 (a)), ViolationNo.15 (49 CFR § 175.35 (a)), and Violation No.16 (49 CFR §175.85 (a)). These three violations are dismissed for lack ofany legal statutory basis for the charges. 6) Absent full orpartial settlement on the remaining issues, the parties shall proceed to hearing in January 2013 on contested Violation Nos. 5, 6, 7, 10, 11, 12, 13, and 14, as well as the penalty to be imposed on all proved violations (which will include proven Violation Nos. I, 2, 3, 8, and 9). 7) The three day Hearing is hereby reconfirmed for January 29, 2013- January 31, 2013 in St. Croix, VI.

Attachment: Service List
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