### SERVED: APRIL 11, 2013

UNITED STATES DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, D.C.
) FEDERAL AVIATION ADMINISTRATION, ) ) Complainant, ) FAA DOCKET No. [TO BE ASSIGNED] ) v. ) (Civil Penalty Action) ) SCOTT NOVAK, ) ) Respondent. ) OMS No. FAA-2012-0206 ) 

# ___________________________)

INITIAL DECISION OF ADMINISTRATIVE LAW JUDGE RICHARD C. GOODWIN
Found: Complainant failed to prove a violation. The Complaint will be dismissed.


### I. Background The Complaint ofthe FederalAviation Administration ("Complainant," "FM," or "the agency") alleges that on December 22, 2011, Respondent Scott Novak ("Novak" or "Respondent") "knowingly offered" toAlaska Airlines an n-piece shipment for air transportation from Anchorage, AK, toJuneau, AK which included hazardous materials. · The hazardous materials ("hazmats"), it is charged, consisted ofnail polish, nail polish remover, charcoal lighter fluid, hairspray, shaving cream, and insect repellent (see Tr. 13- 14). Hazardous materials tendered for air transportation obligate the shipperto place certain information on and with the shipmentto alert those who might come in contact with it. The requirements are accomplished through detailed marking, labeling, and similar actions. Respondent's tenderinthis respect failed completely, the Complaint states._..::.:_ 2
As a result ofthe circumstances described above, the agency charged Respondent with sixteen Hazardous Materials Regulations ("HMRs") violations, namely: 49 C.P.R. 1) §171.2(e) (offering hazardous materials for shipment notproperly classed, described, marked, labeled, and in condition for shipment); 2) §172.2oo(a) (offering hazmats not properly described onthe shippingpapers); 3) §172.201(d) (offering hazmats without an emergencyresponse number); 4) §172.202(a)(1) (offering hazmats without the proper identification numberfor the material); 5) §172.202(a)(2) (offering hazmats without the proper shippingname); 6) §172.202(a)(3) (offering hazmats lacking the hazard class or division numberprescribed for the material); 7) §172.202(a)(4) (offering hazmats lacking the designated packing group, or PG); 8) §172.202(a)(5) (failing to include inthe shipping papers the total quantity ofthe hazmat); 9) §172.203(£) (failing to include in the shipping papers a statementthatthe shipmentis within limitations prescribed for passenger or cargo aircraft); 

### 10) §172.204(a) (offering hazmats withoutthe required shipper's certification); u) §172.204(c)(2) (failing to provide two copies ofthe required shipper's declaration); 12) §172.204(c)(3) (offering hazmats without the required declaration); 13) §172.3oo(a) (offering hazmats without markingthe shipmentwith the proper shipping name and identification number); 14) 172.301(a) (offering hazmats in a package not marked withproper shippingnames and identification numbers); 15) §172.4oo(a) (offering a package containinghazardous material improperly labeled); and 16) §172.6o4(a) (failingto provide an emergencyresponse telephone number). Complainant asked for a civil penalty of$2,700. Respondent, denying that he "knowingly offered" the shipment, denies the charges. I held a hearing on September 25, 2012, inJuneau. At the conclusion ofthe hearing I determined that a written decision would be reasonable and appropriate. Briefs have been filed and the matter now is ready for dedsion.
II. Discussion I find and conclude thatthe agency failed to prove its case. The ComplaintWill be dismissed.
A. Review of the Event The incident forming thebasis ofComplainant's charges grew out ofa household move by Respondent's daughter and herhusband. Respondent testified that he had traveled toAnchorage specifically to help his daughter and son-in-law move from there to Juneau. When he realized that their household goods would not all fit intheirpickup truck, he offered to take some oftheitems toAlaska Airlines for shipment. OnDecember 22,2011, Mr. Novak took some goods formerly loaded in thepickup and broughtthemto Alaska Airlines' air cargo ramp at theAnchorage airport (Tr. 174-76, 184-87). He told ramp personnel, he stated, that he was loading "furniture and household stuff." The air waybill he signed listed only "furniture, mattress." Mr. Novak acknowledged that he had3
initialed and signed the waybill's box indicatingthathewas not shipping "dangerous goods." Respondent's signature and initials ontheair waybill actuallywere derived from a subsequent electronic credit-card transaction in which he had clicked ''no," and had signed and initialed, a statementassuring that the shipment contained neither "dangerous goods" (Exh. A-18) nor "hazardous materials (Exh. A-19)." 1 Alaska Airlines customer service representativeJocelyn Juul appeared as the agency's first witness. Sheworked atthe carrier's cargo facility inAnchorage. When she reported for duty onthe afternoon ofDecember 22, 2011, a ramp service agent

- such agents are the first point ofcontact for a shipper-- told her offinding some "dangerous goods" in a shipment. The agenthad opened a grill and had observed lighter fluid and bug spray inside. That finding triggered a thorough search ofthe rest ofthe shipment. Ramp service agents then also found hairspray, nail polish, nail polish remover, insect repellent, and shaving cream (Tr. 29-33, 41, 48, 58, 61-62; Exhs. A-1 throughA-6 andA-10

. throughA-14). Ericka Liddelow, Mr. Novak's daughter, had (alongwith her husband) initially packaged and packed the items. She testified thatthey consisted of16 bottles ofnail polish; a 32-ounce bottle ofcharcoal lighter fluid; a 1o-ounce can ofhairspray; a 7-ounce can ofshaving cream; and a 6.s-ounce can ofinsect repellent, as well as nail polish remover (Tr. 177-79). FAA special agent and dangerous-goods specialistJeffrey Deitz, the agency's secondwitness, testified more specifically about the nature ofthe substances and the proper markingand labelingthe HMRs require. The nail polish, he stated, properly is classified as "Paint, class 3, UN 1263, packing group II." Nail polish remover is "Acetone Solutions, class 3, UN 1090, packing group II." Class 3 refers to flammable liquids. The "UN" (for United Nations) number is a number assigned to the substance. Charcoal lighter fluid properly is classified as "Petroleum Distillates, NOS [which stands for "not otherwise specified"], class 3, UN 1268, packing group III;" and the hairspray, shaving cream and insectrepellent must each be marked and labeled (as appropriate) as "Aerosols, Flammable, class 2.1, UN 1950." Class 2.1 substances are flammable gases (Exhs. A-15 andA-20 throughA-25; Tr. 109-15, 123; 

### see Hazardous Materials Table following 49 C.F.R. §I72.1o1). B. Findings The evidence is clear and undisputed that Mr. Novak offered the six items discussed above into the stream ofair transportation. Itis also clear thatthe items each are defined under applicable regulations as hazardous materials, and, additionally, that the shipmentwas offered undeclared

- that is, without anywarning ornotice ofthe

1 See also Tr. 38,49-52, 68, 71, 192-93, 199-201; Exhs. A-7 and A-17. The term "dangerous goods" as used in the International Civil Aviation Organization ("ICAO") Technical Instructions is interchangeable with the term "hazardous material" as defmed in 49 C.F.R. §171.8. See Tr. 158-59. The terms "dangerous goods" and "hazardous materials" also are used interchangeably in a warning poster at the Alaska Airlines shipping facility. Exh. A-29; Tr. 159-60, 164.4
hazardous nature ofits contents. See Midtown Neon Sign Corporation, 

### F M Order No. 96:.. 26 (August 13, 1996), p. 2. The parties also agree that Respondent was unaware ofthe contents ofthe boxes he had offered (see Tr. 150), and I so find. What Respondent challenges is Complainant's contention that he "knowinglyoffered" these materials. He states thathe didnot. And ifhe did not knowingly·offer the materials, Respondent's argument goes, then he cannot have violated any ofthe HMRs with which he is charged. The statute governingthis case is the Hazardous Materials TransportationAct, 49 U.S.C. 49 U.S.C. §§5101-5127 ("the Act"). In pertinentparttheAct provides that "[a]ny person ...who is determined bythe Secretary

... to have knowingly committed an act which is a violation

... ofa regulation issued under this title, shall be liable to the United States for a civil penalty." (emphasis supplied). TheAct further provides that a person acts knowingly when

- (A)the person has actual knowledge ofthe facts giving rise to the violation; or (B) a reasonable person acting in the circumstances and exercising reasonable care would have that knowledge. · 49 U.S.C. §5123(a)(1). It has been determined that Respondent had no actual knowledge that he had tendered hazardous materials. The critical question then becomes whether, as a reasonable person in the circumstances, he would have known thatin the exercise of reasonable care. He is charged with the knowledge that the exercise ofreasonable care in the circumstances would have produced. The statutorymandate to exercise "reasonable care" created a dutyupon Mr. Novak to make somekind ofinquiry into the material hewas shipping. The nature ofthe inquiry required depended onthe surroundingcircumstances. Did Mr. Novak make sufficient inquiry? I find that he did. The evidence shows that Respondent believed that he was shipping household goods. This beliefwas reasonable. It was based onthe surrounding facts: Mr. Novak's daughter and son-in-lawwere movingtheirpersonal effects from Anchorage toJuneau. Respondent believed that goods customarily associated with household moves, such as furniture, bedding, and the like, constituted the contents ofthe shipment. Such goods generallyare considered innocuous from an air transport standpoint. They do not as a rule raise an alarm. Mr. Novak had no cause to suspect otherwise. He was a helper and facilitator. Under the circumstances he had the right to rely onhis daughter's general description ofthe contents ofthe shipment. He had no reason to inquire or lookfurther.5
While it is true that some personal effects often transported as part ofa household move are considered hazardous materials in air travel, Respondent was unaware ofthat. And he may not be charged with that knowledge. The law does not require shippers to know or inquire aboutwhich products may be considered dangerous goods for purposes ofair transportation. Respondent nonetheless may be found liable 

### ifhe knew, or should have known, thatthe materials at issue

-- whether theywere infact considered hazardous or not

-- were part ofhis daughter's effects. ScottH. Smalling, FAA Order No. 94-31 (Octobers, 1994). But liability in these circumstances ofthis case may not be imputed. Such a finding would amount to a determination thatbecause Mr. Novak generated the shipment, he is accountable for the legal consequences. That amounts to a standard of strict liability. The statute does not go so far. See Contract CourierServices, Inc., v. Research andSpecial ProgramsAdministration, 924 F.2d 112 (7 Cir. 1991). Nor do any otherfactors suggest that Mr. Novak should have inquired further. He crediblytestified that he did not see any signs inAlaska Airlines' cargo area, orelsewhere, warning about the dangers ofshippinghazardous materials or dangerous goods. Nor had anyAlaska Airlines employee asked him ifhe was tendering such goods. Complainant did show that ramp agents as a matter ofpolicy ask passengers ifthey are shipping dangerous or hazardous goods, butthe agency offered no evidence tendingto showthat such a question was posedto Mr. Novak (Tr. 175-76,179-80,191-98,203-06, 208, 214; Exh. A-16). Evidence that ramp agents discussed "triggerterms"- shipper descriptions of merchandise whichtrigger agents' additional, more specific inquiry into whetherthe shipment may contain hazn'lats -with Respondent is discounted as hearsay:· I amwell aware thatthe items in question, customarily characterized as household or consumer goods, are nonetheless considered dangerous in air transportation. They each are flammable. Each, underthe proper conditions, could produce a grave situation aboard an aircraft. But it must be emphasized thatthe dangers inherent in tenderingan undeclared shipment ofdangerous goods do not mean thata shipper, as a consequence of the shipper's dutyto inquire, must in every situation be charged with theknowledge that he or she is tendering such items. The statute simply does not set such an inflexible standard. The particular circumstances ofthis case showthat Mr. Novak reasonably did not know whathewas shipping: theywarrant a finding that Respondent may not be held liable under the statute.

2 Such triggering terms, Complainant witnesses testified, include "household goods" and "camping gear." Tr. 71- 73, 78-79.6


### I find and conclude thatthe agency failed to prove that Respondent Scott Novak knowingly offered hazardous materials in air transportation. As such, the Complaint is dismissed. 3

# -~

# c~~~ U.S. Administrative Law Judge Attachment
- Service List

3 This decision may be appealed to the Administrator ofthe FAA. The notice ofappeal must conform to sections 13.210, 13.211(e) and 13.233 ofthe Rules ofPractice, whichrequire that a notice ofappeal 1) be filed not laterthan 10 days (plus an additional five days ifmailed) from the service date ofthis decision, and 2) be perfected with a written brieformemorandum not later than 50 days (plus an additional five; ifmailed) from the service date ofthis decision. The notice ofappeal and brieformemorandum must eitherbe a) mailed to the Federal Aviation Administration, 800 Independence Avenue, S.W., Washington, DC 20591, Attn: Hearing Docket Clerk, AGC-430, Wilbur Wright Building-Suite 2Wl000, orb) delivered personally or via expedited courier service to the Federal Aviation Administration, 600 Independence Avenue, S.W., Wilbur Wright Building-Suite 2W1000, Washington, D.C. 20591, Attn: Hearing Docket Clerk, AGC-430. A copy ofthe notice ofappeal and brieformemorandum also must be sent to agency counsel. Service upon the presidingjudge is optional.**~~----~---------------------** ......

SERVICE LIST ORIGINAL & ONE COPY Federal Aviation Administration 800 Independence Avenue, S.W. Washington, DC 20591 Attention: Hearing Docket Clerk, AGC-430 Wilbur Wright Building-Suite 2W1000 1 ONE COPY Joseph W. Geldhof, Respondent's Counsel 2 Marine Way, Suite 207 Juneau, AK 99801 TEL: 907-586-8193 MOBILE: 907-723-9901 E-mail: joeg@alaska.com Howard L. Martin, Jr., Complainant's Counsel Regional Counsel, Office ofRegional Counsel, AAL-7 Alaskan Region Federal Aviation Administration 222 W. 

### ih Avenue #14 Anchorage, AK 995.13-7587 TEL: 907- 271-5269 FAX: 907-271-2800 FDMS No. FAA-2012-0206 (Civil Penalty Action)

The Honorable Richard C. Goodwin, Administrative LawJudge Office ofHearings, M-20 · U.S. Department ofTransportation 1200 NewJersey Avenue, S.E. (E11-310) Washington, DC 20590 TEL: 202-366-2139 Attorney-Advisor 202-366-5121 StaffAssistant/Paralegal FAX: 202-366-7536

1 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 2WIOOO, Washington, DC 20591; Attention: Hearing Docket Clerk, AGC-430.
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