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 of the Federal Aviation Administration ("Complainant," "FM," or 

"the agency") alleges that on December 22, 2011, Respondent Scott Novak ("Novak" or 

"Respondent") "knowingly offered" to Alaska Airlines an n-piece shipment for air 

transportation from Anchorage, AK, to Juneau, AK which included hazardous materials. · 

The hazardous materials ("hazmats"), it is charged, consisted of nail 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 shipper to place 

certain information on and with the shipment to alert those who might come in contact 

with it. The requirements are accomplished through detailed marking, labeling, and 

similar actions. Respondent's tender in this respect failed completely, the Complaint 

states. 
_..::.:_ 

2 

As a result of the 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 not properly classed, described, 

marked, labeled, and in condition for shipment); 2) §172.2oo(a) (offering hazmats not 

properly described on the shipping papers); 3) §172.201(d) (offering hazmats without an 

emergency response number); 4) §172.202(a)(1) (offering hazmats without the proper 

identification number for the material); 5) §172.202(a)(2) (offering hazmats without the 

proper shipping name); 6) §172.202(a)(3) (offering hazmats lacking the hazard class or 

division number prescribed 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 in the shipping 

papers the total quantity of the hazmat); 9) §172.203(£) (failing to include in the shipping 

papers a statement that the shipment is within limitations prescribed for passenger or 

cargo aircraft); 10) §172.204(a) (offering hazmats without the required shipper's 

certification); u) §172.204(c)(2) (failing to provide two copies of the required shipper's 

declaration); 12) §172.204(c)(3) (offering hazmats without the required declaration); 13) 

§172.3oo(a) (offering hazmats without marking the shipment with the proper shipping 

name and identification number); 14) 172.301(a) (offering hazmats in a package not 

marked with proper shipping names and identification numbers); 15) §172.4oo(a) 

(offering a package containing hazardous material improperly labeled); and 16) 

§172.6o4(a) (failing to provide an emergency response 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, in Juneau. At the conclusion of the 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 that the agency failed to prove its case. The Complaint Will be 

dismissed. 

A. Review of the Event 

The incident forming the basis of Complainant's charges grew out of a household 

move by Respondent's daughter and her husband. Respondent testified that he had 

traveled to Anchorage 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 in their pickup 

truck, he offered to take some of the items to Alaska Airlines for shipment. On December 

22,2011, Mr. Novak took some goods formerly loaded in the pickup and brought them to 

Alaska Airlines' air cargo ramp at the Anchorage 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 had 
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initialed and signed the waybill's box indicating that he was not shipping "dangerous 

goods." Respondent's signature and initials on the air waybill actually were derived from 

a subsequent electronic credit-card transaction in which he had clicked ''no," and had 

signed and initialed, a statement assuring that the shipment contained neither 

"dangerous goods" (Exh. A-18) nor "hazardous materials (Exh. A-19)." 1 

Alaska Airlines customer service representative Jocelyn Juul appeared as the 

agency's first witness. She worked at the carrier's cargo facility in Anchorage. When she 

reported for duty on the afternoon of December 22, 2011, a ramp service agent - such 

agents are the first point of contact for a shipper-- told her of finding some "dangerous 

goods" in a shipment. The agent had opened a grill and had observed lighter fluid and 

bug spray inside. That finding triggered a thorough search of the rest of the 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 through A-6 and A-10 . 

through A-14). 

Ericka Liddelow, Mr. Novak's daughter, had (along with her husband) initially 

packaged and packed the items. She testified that they consisted of 16 bottles of nail 

polish; a 32-ounce bottle of charcoal lighter fluid; a 1o-ounce can of hairspray; a 7-ounce 

can of shaving cream; and a 6.s-ounce can of insect repellent, as well as nail polish 

remover (Tr. 177-79). FAA special agent and dangerous-goods specialist Jeffrey Deitz, the 

agency's second witness, testified more specifically about the nature of the substances 

and the proper marking and labeling the 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 insect repellent 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 and A-20 through A-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 of air transportation. It is also clear that the items each 

are defined under applicable regulations as hazardous materials, and, additionally, that 

the shipment was offered undeclared - that is, without any warning or notice of the 

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. 
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hazardous nature of its 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 of the 

contents of the boxes he had offered (see Tr. 150), and I so find. What Respondent 

challenges is Complainant's contention that he "knowingly offered" these materials. He 

states that he did not. And if he did not knowingly· offer the materials, Respondent's 

argument goes, then he cannot have violated any of the HMRs with which he is charged. 

The statute governing this case is the Hazardous Materials Transportation Act, 49 

U.S.C. 49 U.S.C. §§5101-5127 ("the Act"). In pertinent part the Act provides that "[a]ny 

person ... who is determined by the Secretary ... to have knowingly committed an act 

which is a violation ... of a regulation issued under this title, shall be liable to the United 

States for a civil penalty." (emphasis supplied). The Act further provides that a person 

acts knowingly when -

(A) the person has actual knowledge of the 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 that in the exercise of 

reasonable care. He is charged with the knowledge that the exercise of reasonable care in 

the circumstances would have produced. 

The statutory mandate to exercise "reasonable care" created a duty upon Mr. 

Novak to make some kind of inquiry into the material he was shipping. The nature of the 

inquiry required depended on the surrounding circumstances. Did Mr. Novak make 

sufficient inquiry? I find that he did. 

The evidence shows that Respondent believed that he was shipping household 

goods. This belief was reasonable. It was based on the surrounding facts: Mr. Novak's 

daughter and son-in-law were moving their personal effects from Anchorage to Juneau. 

Respondent believed that goods customarily associated with household moves, such as 

furniture, bedding, and the like, constituted the contents of the shipment. Such goods 

generally are 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 on his daughter's general 

description of the contents of the shipment. He had no reason to inquire or look further. 
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While it is true that some personal effects often transported as part of a household 

move are considered hazardous materials in air travel, Respondent was unaware of that. 

And he may not be charged with that knowledge. The law does not require shippers to 

know or inquire about which products may be considered dangerous goods for purposes 

of air transportation. 

Respondent nonetheless may be found liable if he knew, or should have known, 

that the materials at issue -- whether they were in fact considered hazardous or not --

were part of his daughter's effects. Scott H. Smalling, FAA Order No. 94-31 (Octobers, 

1994). But liability in these circumstances of this case may not be imputed. Such a 

finding would amount to a determination that because 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 Courier Services, Inc., v. 

Research and Special Programs Administration, 924 F.2d 112 (7 Cir. 1991). 

Nor do any other factors suggest that Mr. Novak should have inquired further. He 

credibly testified that he did not see any signs in Alaska Airlines' cargo area, or elsewhere, 

warning about the dangers of shipping hazardous materials or dangerous goods. Nor had 

any Alaska Airlines employee asked him if he was tendering such goods. Complainant 

did show that ramp agents as a matter of policy ask passengers if they are shipping 

dangerous or hazardous goods, but the agency offered no evidence tending to show that 

such a question was posed to Mr. Novak (Tr. 175-76,179-80,191-98,203-06, 208, 214; Exh. 

A-16). Evidence that ramp agents discussed "trigger terms"- shipper descriptions of 

merchandise which trigger agents' additional, more specific inquiry into whether the 

shipment may contain hazn'lats -with Respondent is discounted as hearsay:· 

I am well aware that the items in question, customarily characterized as household 

or consumer goods, are nonetheless considered dangerous in air transportation. They 

each are flammable. Each, under the proper conditions, could produce a grave situation 

aboard an aircraft. But it must be emphasized that the dangers inherent in tendering an 

undeclared shipment of dangerous goods do not mean that a shipper, as a consequence of 

the shipper's duty to inquire, must in every situation be charged with the knowledge that 

he or she is tendering such items. The statute simply does not set such an inflexible 

standard. The particular circumstances of this case show that Mr. Novak reasonably did 

not know what he was shipping: they warrant 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 that the 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 of the FAA. The notice of appeal must conform to sections 

13.210, 13.211(e) and 13.233 of the Rules of Practice, which require that a notice of appeal 1) be filed not later than 

10 days (plus an additional five days if mailed) from the service date of this decision, and 2) be perfected with a 

written brief or memorandum not later than 50 days (plus an additional five; if mailed) from the service date of this 

decision. The notice of appeal and brief or memorandum must either be 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 2Wl 000, 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 of the notice of appeal and brief or memorandum also 

must be sent to agency counsel. Service upon the presiding judge 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 2W1 0001 

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 of Regional 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 Law Judge 

Office of Hearings, M-20 · 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E. (E11-310) 

Washington, DC 20590 

TEL: 202-366-2139 Attorney-Advisor 

202-366-5121 Staff Assistant/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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