In The Matter Of: 

COASTAL AIR 

SERVED: DECEMBER 28, 2012 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, DC 

) 

) Docket No. FAA-2011-1005 

) 

TRANSPORT, INC. ) 

) 'Case No. 1010-S0-700037 

Respondent ) 

ORDER GRANTING PARTIAL SUMMARY JUDGMENT \, .. ,) 

IN FAVOR OF EACH PARTY, CONFIRMING THE HEARING DATE 

ON LIMITED ISSUES, AND GRANTING/DENYING OTHER RELIEF 

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 

Motion for Decision Should Not Be Granted [sic]. On April4, 2012 the Respondent submitted 

an Answer to FAA's Motion for Decision Should Not Be Granted [sic]. On July 19, 2012 the 

Respondent filed An Opposition to Hearing on Sanction Only. 

On July 23, 2012 the FAA filed an Agency Brief in 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 of un-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 Other Relief was filed. 

That same day, on July 31, 2012, an Order Setting Litigation Dates and Procedures was 

filed. Among other things this Order directed the pro se Respondent to file, on or before October 
On December 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 appear pro se. 

This written Order Granting Partial Summary Judgment codifies and supplements the December 

6, 2012 oral rulings. 

A. Notice of Violation 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., had committed sixteen (16) violations of the Hazardous 

Materials Regulations, under 14 C.F .R. Subchapter C. The FAA proposed a total penalty of 

$59,600 for the violations. 

B. Standard of Review for Summary Judgment 

Pursuant to 14 C.P.R.§ 13.218(f)(5), a party may file a motion for a decision on the 

merits, in advance of a testimonial hearing, when a party asserts that there is no disputed material 

issues of fact to be heard. Such a motion is reviewed under the same·standard as a summary 

judgment motion pursuant to Civ. R. 56. The FAA's Motion for Hearing on Sanction Only seeks 

a decision on the merits of the alleged violations. Pursuant to 14 C.P.R. § 13.218(f)(5) .and Civ. 

R. 56( a), the FAA's pre-hearing request for relief is a Motion for Partial Summary Judgment on 

the merits of the alleged violations. 

The purpose of summary judgment is "to isolate, and then terminate, claims and defenses 

that are factually unsupported." Steven Baicker-McKee, et.al, Federal Civil Rules Handbook, 

1120 (West Publishing, 19th ed. 2012). 

Pursuant to Civ. R. 56( a), a summary judgment motion 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 amatter oflaw." See Anderson v. Liberty Lobby Inc., 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 of the 

motion. Pursuant to Civ. R. 56 (c)(l)(A), specific facts alleged by either party may be asserted 

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D. Admissibility of FAA's Summary Judgment Factual Proof 

As part of its July 23, 2012 Agency Brief in Support oflts Alternative Motion for 

Hearing on Sanction Only, the FAA submitted the following thirteen (13) Exhibits: 

1. December 11,2009 FAA letter to 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 - 1 page 

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 of Lading (partially unreadable)- 1 page 

6. Partialcopyof49C.F.R.§172.101 -2pages 

7. November 2, 2009 U.S. Customs and Border Protection Memorandum to FAA 

Hazmat Coordinator Juan Bulted- 1 page 

8. 9 Photographs of the exterior, interior, and contents of a fiberboard box- 9 pages 

9. December 30, 1999 Statement of Intent 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 of Air Carrier and Operator -1 page 

13. Copy of49 C.F.R. §175.10 and 49 §175.20 .. 4 pages 

On November 6, 2012 the FAA filed the Agency [sic] Supplemental Filing in Support of 

Its Motion for Hearing on Sanction Only. Included in the Supplemental summary judgment filing 

were four (4) new exhibits, which the FAA marked as Exhibits 1, 2, 3, and 4. To avoid confusion 

and duplicate numbering, these new FAA exhibits have been re-marked as FAA Exhibit Nos. 14, 

15, 16, and 17. 

14. Shippers Declaration Specimen Design for Manual Completion-! page 

15. Copy of 49 C.F.R. § 172.312 -1 page 

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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, signed by Michael Foster and 

dated July 9, 2012- 1 page 

4. Respondent's Answer to Initial Discovery, signed by Michael Foster and dated August 2, 

2012-8 pages 

5. Respondent's Answer to General Discovery and Production of Documents, 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 Exhibit Nos. 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 of a fiberboard box- 1 page (NB: The Respondent's 

Exhibit No.6 was an exact duplicate of the FAA's Exhibit No.8, page 6). 

7. A photograph of two Hazcom Labels (partially unreadable)- 1 page (NB: The 

Respondent's Exhibit No.7 appears to be a duplicate of the FAA's Request for 

Admissions No. 16). 

The FAA did not object to any of the Respondent's identified Exhibits. 

Having reviewed all seven (7) ofthe Respondent's Exhibits, Respondent's Exhibit Nos. 

1-6 are deemed admissible as testimonial and documentary evidence. The Respondent's Exhibit 

No.7 is deemed inadmissible and not considered for lack of readability. However, the FAA's 

Request for Admission No. 16 (photographs of two 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 ofthe parties' admitted Exhibits, 

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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 of the Respondent's 

aircraft, signed a Bill of Lading asserting that he was accepting for trat).sport on flight DQ 413 

diesel fuel with an identification number of UN #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 of diesel fuel, 

packed inside a fiberboard box, in the cargo compartment of the aircraft. 

14. The label affixed to the exterior of the fiberboard box identified its contents as an 

excepted quantity of a Class 3 hazardous material. 

15. The shipped fiberboard box did not include a MSDS (Material Safety Data Sheet), 

shipping papers, 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. Brief Discussion of the Parties' Arguments 

The FAA alleges that the Respondent, Coastal Air Transport, Inc, has committed sixteen 

(16) violations of the 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 other requirements do not apply, because the shipment was a 

small, two (2) pint shipment of diesel fuel, properly packaged and exempted by 49 C.F.R. § 

17 5.1 0( a)( 4). The Respondent also argues that the 2 pints of liquid 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). 

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support of its defense. But 49 C.F.R. §175.10(a)(4) does not provide an exception for shipping 

small quantities of diesel fuel. Instead, 49 C.F.R. §175.10(a)(4) allows for the limited 

transportation by air of alcoholic beverages containing not more than 24% alcohol by volume, if, 

unsealed, or up to 70% alcohol by volume when in an unopened retail package not exceeding 5 

liters (i.e., 1.3 gallons). 

The Respondent argued that because alcoholic beverages and diesel fuel are both 

flammable liquids, they are equally dangerous (or non-dangerous) when shipped in small 

quantities. This is not persuasive. The HMRs do not reflect or adopt the Respondent's opinion 

that shipping small amounts of diesel fuel is analogous to shipping small amounts of alcoholic 

beverages. Instead, the HMRs unequivocally assert that shipping diesel fuel aboard aircraft is 

dangerous, must be strictly regulated, and that such regulations must be strictly followed. 6 

H. Brief Discussion of Violations Proved, Not Proved, and Dismissed 

As noted above, it is the moving party's burden in a summary judgment dispositive 

motion to first establish a prima facie case by submitting or citing to a variety ofadmissible 

documents and declarations that prove the specific facts alleged. If a prima facie case is made, 

the burden then shifts to the non-moving party to show, by affidavit or otherwise, that a genuine 

dispute of material fact remains for the fact ... finder to resolve. A summary judgment motion 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 a matter of law. Summary judgment may also be granted to a 

non-moving party, after all parties have had notice and a reasonable time to respond. 

The FAA's alleged sixteen (16) violations are discussed below in the same order as they 

are listed in the FAA's Complaint. A brief description of each violation is provided, followed by 

the ruling, and a brief explanation of the ruling. 

1. 49 CFR § 171.2 (a) (Acceptance of hazardous material for transportation aboard 

an aircraft when such material was not properly classed, described, packaged, marked, labeled, 

6 For example (not inclusive), 49 C.P.R. § 173.27(f) refers the reader to 49 C.P.R. § 173.4(a) for the regulations 

governing combination packages of excepted quantities [sic] of liquid hazardous materials intended for 

transportation by aircraft. 49 C.P.R. § 173.4a (b )(2) allows for limited transportation of Class 3 hazardous materials 

so long as packagings are limited. Pursuant to 49 C.P.R. § 173.4b (b), the de minimis exception for inner packaged 

receptacles categorized as Group III Class 3 material is limited to one (1) mL (0. 03 ounce) for authorized liquids. 

Pursuant to 49 C.P.R. § 173.4a (d), the maxiinum limits for outer packaging for a Group Ill liquid hazardous 

material is 1 L (0.2 gallons). 

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4. 49 CFR § 175.20 (a) (Failure to ensure training ofhazmat employees): Violation 

No.4 Dismissed as a Matter ofLaw. 

The FAA asserted that FAA Exhibit Nos. 1 and 3 factually supported this violation. As 

the administrative court noted during oral the December 6, 2012 oral argument, an FAA 

accusation and a request for discovery in FAA Exhibit No. 1 is not proof of a hazmat training 

violation. 9 During oral argument on December 6, 2012, the FAA argued that based on the 

response contained in the Respondent's January 14, 2010 letter (Exhibit No.3), it could be 

assumed that the Respondent was answering the FAA's December 6, 2012letter, 10 and that the 

Respondent's'discovery enclosures (not provided) had been inadequate. 

In essence, the FAA provided very little factual evidence (if any) in support of this 

violation, and instead relied substantially on assumptions and arguments. 

However, this lack of factual support is overshadowed by the fact that the cited regulation 

-49 CFR § 175.20 (a)- does not exist. The regulatiop was amended in 2006, removing both the 

cited subsection (a) and its cited references. 71 Fed. Reg. 14586, 14594 (Mar. 22, 2006). The 

FAA has failed to charge the Respondent with a valid safety regulation, and has failed to give the 

Respondent proper notice of regulatory authority supporting an alleged violation. This citation 

must be dismissed as a matter of law. 

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 that FAA Exhibit Nos. 1 and 3 factually supported this violation. As 

discussed above (in Violation No.4), the FAA has failed to present adequate facts to support a 

prima facie case for this violation. 

9 FAA Exhibit No. 1 was a December 1I, 2009 letter from FAA employee Mr. Butted (in San Juan, PR) to the 

Respondent (in St. Croix, VI), accusing the Respondent of a Hazmat violation, and requesting (among other things) 

a copy of the Respondent's hazardous materials training curriculum. Exhibit No. 1 states it was mailed by certified 

mail, but does not include the certified mail identification number. FAA Exhibit No. 3 was a January 14, 2010 

Respondent letter to Mr. Bulted, in which the Respondent was answering an FAA letter "received January 4, 2010." 

10 It should be noted that there is no proof that the Respondent's January 14, 2010 letter (Exhibit No.3) was in 

response to the FAA's December 11, 2009letter (Exhibit No. 1). In fact, FAA Exhibit No.2 demonstrates that on 

December 21, 2009 (l 0 days after December II, 2009) the FAA mailed a certified letter (No. 7008 I830 0000 5608 

4635) to the Respondent, and the Respondent receiveq 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 prior to the certified mail documentation in Exhibit No.2 (dated December 2I, 2009). 

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shipping paper as required): Violation No. 8 Proved. 

· This violation is proven by the undisputed facts and by multiple exhibits deemed 

admissible as evidence, as explained above in the discussion regarding Violation No. 1, 

9. 49 CFR § 175.30 (a) (3): Acceptance of hazardous material for transportation 

aboard an aircraft when the hazardous material was not properly labeled or marked as required): 

Violation No. 9 Proved. 

This violation is proven by the undisputed facts and by multiple exhibits deemed 

admissible as evidence, as explained above in the discussion regarding Violation No. 1. While 

there is no doubt that the Respondent shipped the diesel fuel in a fiberboard specification box, 

and labeled the two (2) inner packaged plastic bags as "Hazmatpac", this was not in compliance 

with the hazmat regulations regarding the size of this diesel fuel shipment. 

10. 49 CFR § 175.30 (b)(Failure of the aircraft operator to immediately inspect the 

hazmat package, outside container, or overpack before placing it aboard the aircraft): Violation 

No. 10 Not Proved. 

The FAA repeated its allegation of this violation in its summary judgment materials, 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 if the package had been "properly" 

inspected, the Respondent would not have shipped it as originally packaged. 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 hazmat package before placing it about the aboard the 

aircraft. The question is whether an immediate inspection occurred, and whether the inspection 

was in compliance with the regulation cited. There are genuine issues of material fact and law 

regarding this accusation, and the violation remains 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 on the inside packages were clearly visible are reproduced on the outside of the 

overpack): Violation No. 11 Not Proved. 

It should be noted that this allegation is almost identical to Violation No. 12 below. The 

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was carrying a shipment of hazardous material. It was undisputed that none of these 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 of documentation was sufficient. The FAA has failed to 

make a prima facie case, and the violation remains for litigation at the hearing. 

14. 49 CFR § 175.33 (b) (Failure to have a copy of the written notification available 

to the pilot in command (PIC), and failure to maintain emergency response information required 

by the regulations during transport): Violation No. 14 Not Proved. 

As in Violation No. 13 above, the FAA assets that this violation is proved, but cites only 

to Exhibit 17 (originally marked as FAA Exhibit No.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 of both the written notification of the 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 shipping papers 

accompanied the shipment as required by the regulations): Violation No. 15 Uismissed as a 

Matter of Law. 

The FAA pointed to the lack of any shipper's declaration in the proffered evidence, and 

argued that the lack of such 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 ofthis problem on December 6, 2012, and given an opportunity to check the 

regulations. 12/6/12 Transcript; December 19,2012 Order Granting the FAA's Motion to 

Supplement the Record Nunc 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 

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Sanction 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 to judgment as a matter of law 

on Violation 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 

Violation No.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 of fact and law regarding 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 on the 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 summary judgment, as a matter of law, on Violation No. 4 ( 49 CFR 

§ 175.20 (a)), Violation No.15 (49 CFR § 175.35 (a)), and Violation No.16 (49 CFR 

§ 175.85 (a)). These three violations are dismissed for lack of any legal statutory basis 

for the charges. 

6) Absent full or partial 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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