### In The Matter Of: 

### SERVED March 19, 2014
U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, D.C.

Docket No. PAA-2011-1005 COASTAL AIR TRANSPORT, INC.· ) ) ) ) ) ) 

### CaseNo. 1010-S0-700037 Respondent

INITIAL DECISION OF U.S. ADMINISTRATIVE LAW JUDGE

Held by December28, 2012 Summary Judgment Order: 

### 1) The Respondent committed the following five (5) violations: ViolationNo. 1 (49 C.P.R. § 171.2(a)), No.2 (49 C.P.R.§ 171.2(b)), No.3 (49 C.P.R.§ 175.3), No.8 (49 C.P.R. § 175.30(a)(2)), and No.9 (49 C.P.R.§ 175.30(a)(3)). 2) The following three (3) violations were dismissed as a matter oflaw: ViolationNo. 4 (49 C.P.R. § 175.20(a)), No. 15 (49 C.P.R. § 175.35(a)), and No. 16 (49 C.P.R. § 175.85(a)).
Held after Full Evidentiary Hearing: 

### 3) The Respondent committed these additional three (3) violations: ViolationNo. 5 (49 C.P.R.§ 175.20), No. 13 (49 C.P.R. § 175.33(a)), and No. 14 (49 C.P.R.§ 175.33(b)). 4) The following five (5) violations are dismissed: ViolationNo.6 (49 C.P.R. §. 175.25), No.7 (49 C.P.R. § 175.26), No. 10 (49 C.P.R.§ 175.30(b)), No. 11 (49 C.P.R. § 175.30(e)(2)), and No. 12 (49 C.P.R.§ 175.30(e)(3)).

Total Civil Penalty 

### Assessed- $16,500: 

### 5) The Respondent is assessed a total civil penalty of$16,500 for the eight (8) proven violations (i.e., ViolationNos. 1, 2, 3, 8, and 9, and ViolationNos. 5, 13, and 14) found by Summary Judgment Order and after the Hearing.

### I. CASE BACKGROUND
On September 8;2011, the Federal Aviation Administration ("FAA") issued a Complaint charging the Respondent, .Coastal Air Transport, Inc. ("Respondent") with 16 violations ofthe Hazardous Materials Regulations ("HMR") contained in49 C.F.R. chapter I, subchapter C, based on an incident that occurred on October 21, 2009. The FAAproposed a total civil penalty of$59,600 for all16 violations. OnAugust 30, 2011, the

### prose Respondent filed a letterrequesting a hearing. OnMarch 23, 2012, the Respondent filed an Answer denying the alleged violations. OnDecember 28,2012, an Order Granting Partial Summary Judgment inFavor ofEach Party, Confirming the Hearing Date on Limited Issues, and Granting/Denying Other Reliefwas filed ("Summary Judgment Order"). This Summary Judgment Order found that there was no genuine issue as to any material fact and the FAA was entitled tojudgment as a matter oflaw on the alleged violations of49 C.F.R. 

### §§ 171.2(a), 171.2(b), 175.3, 175.30(a)(2), and 175.30(a)(3) (i.e., ViolationNos.l, 2, 3, 8, and 9). This Order also found that the Respondent was entitled to summaryjudgmenton the alleged violations of49 C.F.R. §§ 175.20(a), 175.35(a), and 175.85(a) (i.e., ViolationNos. 4, 15, and 16) because the citedregulations did not appear inthe HMRon the date ofthe alleged violations, or even subsequently, onthe date ofthe filing the FAA's Complaint. The remaining eight (8) violations (i.e., Violation Nos. 5, 6, 7, 10, 11, 12, 13 and 14), as well as the amountofcivil penalty for all violations proven- both by summaryjudgment and by hearing

- remained for hearing. On January 29, 2013 and January 30, 2013, the parties convened in Christiansted, St. Croix, U.S. Virgin Islands and presented evidence onthe eightremaining violations, as well

# as on the·FAA's proposed $59,600 civil penalty. The FAA presented five (5) witnesses: Mr. Renae Steele, Mr. Omar Arroyo, Mr. Juan Bulted, Mr. Joaquin Puntonet, and Ms. Pershameron Dye. The FAA also movedto admit thirteen (13) exhibits into evidence. The motion was granted and alll3 exhibits were admitted. The Respondent presented three (3) witnesses: Mr. William· Bohlke Jr., Ms. Juliette Thomas, and Mr. Michael Foster. The Respondent's motion to admit one (1) exhibit into evidence was granted. 

### II. BRIEF SUMMARY OF CASE FACTS All admitted facts were considered, but only a briefsummary is provided herein. The Respondent is a small, certificated air carrier that operates Part 135 flights inthe Carribbean. As part ofits air carrierprogram, the Respondent entered into an agreement with the FAA that the Respondent would neither accept for air transport, nortransporthazardous materials ("hazmat"). (Ex. C-9; Summ. J. Order 8.) As a result, the Respondent was designated a will-not-carry ("WNC") carrier and subject to requirements less thanrequired for 

### a- Will Carry ("WC") carrierunder the HMR. (1/29/13 Tr. 108:13-110:5.) On October 21,2009, the Respondent conducted asmall, passenger carrying flight (i.e., 10 seats or less) from St. Eustatius, N.A. to ·st. Croix, U.S. Virgin Islands. At anunspecified
Page 2 of 19time priorto the flight leaving Statia, 1 the Respondent's owner and pilot-in-command ("PIC"), Mr. Michael Foster, accepted a fiberboard box for transport by air at the Customs area in Statia. (1130113 Hr'g Tr. 530:17-531 :13.) The shipment was offeredby SGS, a company thatprovided oil samples for Hess, an oil exploration andrefining company. (1/30/13 Tr. 546-47.) 

### Mr. Foster, the PIC, accepted the package from SGS inthe Statia Customs area. The package was marked with a label that Mr. Fosterdid notrecognize at the time ofacceptance. (1130/13 Tr. 545:5-11.) Mr. Fosterbelieved that the shipment contained oil samples. (1130/13 Tr. 540:12-15). He formed this beliefbased upon oral statements by the SGS employee who gave him the package. Sometime after acceptance [time unspecified], Mr. Foster loaded the accepted package onto the airplane. Upon completing the flight from Statiato St. Croix, Mr. Foster carried the fiberboard box into the St. Croix Customs area, where it was opened by Customs and Border Patrol agent Mr. Renae Steele. (1/29/13 Tr. 27:6-13; 30:5-10.) The fiberboard box did not include a Material Safety Data Sheet or shipping papers. (Summ. J. Order 9.) The label affixed to the exterior of the fiberboard box identified its contents as an excepted quantity ofa Class 3 hazardous material. (!d.) The box was detained and the contents ofthe package were ultimately determined to be two, one pint bottles ofdiesel fuel, classified and regulated by the HMRs as NA#1993, Hazard Class 3, Packing Group III. (Summ. 

### J. Order 8.) This was not an excepted hazmat fo,r air travel. 

### III. DISCUSSION AND ANALYSIS All admitted testimony and exhibits were considered. The discussion herein provides only a briefsummary and analysis when needed.



### A. Respondent's Two Re-Raised Arguments First, despite multiple discussions regarding summaryjudgment 

### (See e.g., 6/11112 Tr. 11:9-18; 7/30/12 Tr. 24:10-30:16 and 71:4-72:6; 10/23/13 Tr. 20:3-23:12 and 31:11-32:33:5), the oral arguments presented during the summaryjudgmentmotion conference (12/6/12 Tr.87: 17- 110:5) andthe Summary Judgment Order issued on December 28,2012, the

### prose Respondent re-asserted during the January 2013 hearing that: 1) the FAAneeded to prove atthe Hearing that the shippedpackage containedhazardous materials 

### (See e.g., 1/30/13 Tr. 541:12-544: 14; 1/30/13 Tr. 571: 13-16); and 2) the HMRdid not apply to the Respondent because it was a designated WNC carrier. The Respondent is incorrect in asserting that the FAA needed to continually re-1itigate

. and re-prove the contents ofthe shipped package. The contents ofthe package was diesel fuel, as found by the Summary Judgment Order (Summ. J. Order 8.). This summaryjudgment finding was based on evidence provided by the Respondent to the FAA in response to the FAA's investigation letter ofDecember 11, 2009. The FAA submitted this evidence, a Material Safety Data Sheet ("MSDS") as part ofits motion for summaryjudgment. The MSDS was admitted without objection, and considered as part ofthe summaryjudgmentproceeding. The Respondent presented no evidence during the summaryjudgmentproceeding to demonstrate that the MSDS

1 Statia refers to St. Eustatius, a Dutch Caribbean island in the West Indies southeast ofthe Virgin Islands. Page 3 of 19was not credible evidence. The MSDS identified the October 21, 2009 transported cargo as diesel fuel, NA 1993, Hazard Class 3, Packing Group III. (FAA Summ. J. Br. Ex. 4 at 5.) All throughout these proceedings, including after the Summary Judgment Order was issued, thepro se Respondent has taken the position that the FAA should not be allowed to prove the contents ofthe package without producing the package and its contents. This is simply not correct, even when viewedunder the strictest ofevidentiary proofstandards. Evidence may be submitted to the trier offact, either during summaryjudgmentproceedings or at a hearing, in many different forms. The FAA may meet its burden ofproofthrough circumstantial evidence, such as a document, in lieu ofproducing the actual package as evidence. In re Envirosolve, LLC, FAA Order No. 2006-2 at 11 (Feb. 7, 2006). In addition, the FAA is not required to retain ortest an actual sample ofthe alleged hazmat inthe package, in orderto submit credible evidentiary proofthat it was hazmat. 

### !d. Second, all throughout theseproceedings, thepro se Respondent has disputedthe standard necessary to bring it, as a WNC carrier, under the requirements ofthe HMR and to potentially impose a civil penalty for HMRviolations. Section 175.1(b) provides that the HMR apply to anyperson who performs, attempts to perform, or is required to perform any function subjectto the HMR. 49 C.F.R. 

### § 175.1; see also 49 C.F.R. 

### § 171.1. The Respondent's registration as a WNC carrier is a statement that it agrees notto perform or attemptto perform a function subject to the HMR; specifically, accepting and transporting hazmat. The Respondent's registration as a WNC carrier does not shield it from being charged with HMRviolations. Once the Respondent accepted a hazmat package for transport in commerce, it was performing a WC function subjectto the HMR and thus can be found in violation ofthe HMR. In other words, the standard for proving a hazmat violation is not whetherthe accused carrier has agreed to operate as a designated hazmat WC carrier. The standard for proving a hazmat violation is not whether the accused carrier intended to transport a hazmat or intended to violate the HMR. Instead, the standard ofproofis whether the accused carrier knowingly violatedthe HMRs. 49 U.S.C. 5123(a). The proofof"knowingly violated" may be shown in two different ways: 1) A person acts knowingly when theperson has actual knowledge ofthe facts giving rise to the violation, or 2) when a reasonableperson acting in the same circumstances as the Respondent, and exercising reasonable care, wouldhave that knowledge. 

### !d. Itwas notthe FAA's assertion that the Respondent had actual knowledge thatthe package contained diesel fuel, a hazmat. Instead, it was the FAA's assertion that a reasonable person, acting inthe same circumstances as the Respondent and exercising reasonable care, wouldhave the knowledge that the package was suspect, andwouldhave refusedit. Therefore, the FAAhadthe burden ofproofto showthat the Respondent, or a reasonable person acting in the Respondent's place, would have known, after exercising reasonable care, thatthe package was suspect and would have refused to accept it for shipment. The Respondent's responsive burden was to persuasively challenge the proofpresented by the FAA, and/or to present affirmative defenses to the FAA allegations.

Page 4 of 19B. 8 Violations Litigated during the Hearing

- 

### 3 Proven and 5 Dismissed After the issuance ofthe 12/28/12 SummaryJudgment Order, a total ofeight (8) charged violations remained forlitigation at hearing (i.e., Violation Nos. 5, 6, 7, 10, 11, 12, 13, and 14). Utilizing the same numbering system as inthe Summary Judgment Order, each violation below is identified by violation number, the charged regulation, and a briefdescription ofthe violation. The FAA's burden ofproofon all alleged violations was by a preponderance ofthe evidence. 1) ViolationNo.5 (49 C.P.R. § 175.20)(Hazmatemployees not trained) The FAAprovedthat the Respondent violated 49 C.P.R. § 175.20.2
Itwas undisputed that the Respondent, as a WNC carrier, did not have a training program in place thatprovided each ofits hazmat employees the training required for a 

## we carrier pursuantto 49 C.P.R. part 172, subpart H, as required by 49 C.P.R. § 175.20. The Respondent asserted that as a WNC carrier it was only required to have general awareness training and nothing more. (1/30/13 Tr. 553:5-19.) Indeed, both

### Mr. Bulted and Mr. Putonet testified that general awareness training, which includes recognition and rejection ofpossible hazmat, is all that is required for a WNC carrier, because it does not engage inthe transport ofhazmat. (1/29/13 Tr. 141:8-14, 289-90.) However, as discussed above, the Respondent was mistaken in what triggers the requirements ofthe HMR. Once the Respondent knowingly accepted hazmat for transport in commerce, it was performing a function subject to the HMRand couldbe charged with violations ofthe HMR as ifitwere a WNC carrier. Congress and the FAA have determined that to safely transport hazmat, employees handling that hazmat must have the training contained in 49 C.F.R. part 172, subpart H. See Hazardous Materials Transportation Uniform SafetyActof 

### 1990, Pub. L. No. 101-615, § 7, 104 Stat. 3244,3254 (1990) (codified at49 U.S.C. § 5107 (2006)); 71 Fed. Reg. 14586, 14591 (Mar. 22, 2006). By accepting and transporting hazmat without the required WC training, the Respondent endangered the safety ofthe traveling public and violated section 175.20. 2) ViolationNo.6 (49 C.P.R.§ 175.25) (Failure to display hazmat notices at Respondent's place ofbusiness) This violation is dismissed for failure ofthe FAA to prove it. 49 C.P.R.§ 175.25 requires eachperson who engages in for-hire air transportation of passengers to display notices ofthe requirements applicable to the carriage ofhazmat aboard aircraft and the penalties for failure to comply with those requirements, inlocations where the

2 The FAA originally alleged that the Respondent violated 49 C.F.R. § 175.20(b). (Compl. 4.) Atthe close ofthe January 2013 hearing, the FAA moved to amend the Complaintby removing the reference to paragraph (b) because, although the substance ofthe section remained substantially similar, the section was no longer structured in multiple paragraphs. (1/30/13 Tr. 579:10-22.) The Respondent did not object, and the motion was granted. (1/30/13 Tr. 583:16-584:5.) Page 5 of 19carrier "issues tickets, checks baggage, and maintains aircraft boarding areas." 49 C.P.R. 

### § 175.25.
The FAAprovided only the scantest evidence on this allegation. Mr. Putonet was the only FAA witness who had ever visited the Respondent's place ofbusiness in St. Croix. He first testified that he could notrecall whether or not he had ever seen the required hazmat notices displayed at the Respondent's ticket counter in the past. (1/29/13 Tr. 311 :2-9.) The FAA then asked Mr. Putonet ifhehad more recently inspected the Respondent's counter. Mr. Putonet responded that he "drove by this morning [January 30, 2013]" and "didn't remember seeing any big posters out there at th[at] very time." (1129/13 Tr. 311:10-18.) It was noteworthy that no evidence was introduced to support a finding thatthe Respondent's ticket counter couldbe adequately viewed from a passing vehicle, driving at an unknown speed, at an unknown distance, from the Respondent's ticket counter. There was also no testimony that the notices hadto be in a "big poster" (undefined)] size. However, whether ornot 

### Mr. Putonet saw (or could have seen) the required notices atthe Respondent's business location while Mr. Putonet was driving past inhis car onthe second day ofthe 2013 Hearing was not relevant to proving the October 21, 2009 violation as alleged in the September 8, 2011 Complaint. It should also be pointed out that during cross-examination 

### Mr. Putenottestified that wheneverhe had conducted a personal inspection ofthe Respondent's place ofbusiness, the Respondent hadbeen in compliance. (1/29/13 Tr. 296:3-9.) Itappeared undisputed that 

### Mr. Putenot had beenthe assigned FAA safety inspector for the Respondent in 2009, the year the alleged incident occurred. Although the FAA failed to make its prima facie case, it should nevertheless be noted herein that during the Respondent's responsive case, Mr. Fostertestified thatthe FAAprovided the Respondent withthe required notices "years ago." (1/30/13 Tr. 559:10-12.) Mr. Foster testified that those notices had always been visibly displayed at the Respondent's business counter. (1/30/13 Tr. 558-59.) 3) ViolationNo.7 (49 C.P.R.§ 175.26) (Failure to display hazmat notices at place ofcargo acceptance) This violation is dismissed for failure ofthe FAA to prove it. 49 C.P.R.§ 175.26 requires eachperson who accepts ortransports cargo by aircraft to display notices, at each cargo acceptance facility, that notify people offering cargo ofthe requirements and penalties applicable to hazmat shipping aboard aircraft. 49 C.P.R.§ 175.26. There are two exceptions to the regulation where display ofa notice is not required: 1) an unattended location (e.g., a drop box)- provided that a general notice is prominently displayed at the location to advise customers ofthe prohibition on shipments ofhazardous materials through that location; or2) a customer's facility where hazardous materials packages are accepted by a carrier. 49 C.P.R. § 175.26(d)(1), (2).

Page 6 of 19As discussed above, the hazmatpackage was acceptedin Statia. Judicial notice is taken that "Statia" is the abbreviated term for St. Eustatius, a Dutch Caribbean.island in the West Indies southeast ofthe U.S, Virgin Islands.
The FAA did not present any prima facie evidence onthis issue.
After the FAArested its primafacie case, the

### prose Respondent presented Mr. Foster's

.testimony. Inresponse to inquiry bythe court, Mr. Fostertestified thatthe Respondent posted notices at all ofits business locations. Mr. Foster also explainedthatthe Respondent "do[es] not have facilities in Statia,"but that he had acceptedthe hazmatpackage from the shipper, SGS, in the Statia Customs area. (1130113 Tr. 530:17-531:13.) Itwas undisputed that the Respondent had been accepting packages froin SGS at the Statia Customs area for years. The FAA did not produce any evidence regarding whether or not SGS maintained facilities in Statia, or at the Statia Customs area. Giventhe fact thatthe FAAdid notpursue this allegation inits primafacie evidence, and the fact thatthere is an exemption contained in49 C.F.R. § 175.26(d)(2) for a carrierto accept hazmatpackages at the customer's facility, the evidence adduced during the Respondent's responsive case is insufficientto find a violation under 49 C.F.R. § 175.26.· 4) ViolationNo. 10 (49 C.F.R. § 175.30(b)) (Failure ofaircraft operator to inspect the hazmatpackage immediately before placing aboard the aircraft)
This violation is dismissed for failure ofthe FAAto prove it. As part ofthe FAA's case-in-chief, Mr. Bulted testified that there were two different inspections ofhazmat shipments. (1129/13 Tr. 116-117.) The first, conductedbythe air carrier at the time ofacceptance, was a checklist ofrequirements required under 49 C.F.R. § 175.30(a). This included inspection ofshipping papers, proper shipping name, packing group, class number, etc. (1129/13 Tr. 115:20-117:8.) A failure to conduct this initial checklist inspection would result in violating sections 175.30(a)(2) and (a)(3). This first type ofinspection, where the package appearance raises "red flags" as to its preparation for shipment, was found bythe 12/28/12 SummaryJudgment Orderto have been committed by the Respondent (i.e., Violation Nos. 8 and 9). According to Mr. Bulted, the second package inspection occurred, "oncethey getready to load a package onthe aircraft, they conduct another inspection and that inspection is conducted for the purpose ofdetermining that there was no leakage ordamage to the package."(l/29/13 Tr. 117:9-13.) This second type ofinspection was required under49 C.F.R. § 175.30(b ). Itis the violation charged as ViolationNo. 10 herein. Mr. Bulted's testimony is corroborated by the FAA penalty guidance, which also recognizes the difference between improper acceptance under 49 C.P.R.§ 175.30(a)(l)-(4) (i.e., ViolationNos. 8 and 9) versus the failure to properly inspect immediatelybefore boarding the aircraft under 49 C.P.R. § 175.30(b), (c), and (d) (i.e., ViolationNo. 10) (Hr'g Ex. C-17 at page 13.)

Page 7 of 19As noted above, the first type ofinspection described by Mr. Bulted, and the resulting charges, was found proven inthe Summary Judgment Order issued in this case (i.e., Violation No.8 (§175.30(a)(2)) and No.9 (§175.30(a)(3)). The Summary Judgment Order found that the Respondent shouldhave recognized- withtheuse ofa checklist inspection prior to acceptance ofthepackage -thatthe package contained a hazardous material and ensured that itwas accompanied by appropriate shipping papers and properly marked and labeled. (Summ. J. Order, 14-15; 1/29/13 Tr. 117:17-119:3, 313:2-20.) However, proofofa failure to recognize hazmat in the first inspectionpriorto acceptance does not automatically result in a presumption or finding thatthe Respondent failed to conductthe secondtype ofinspection, a package integrity inspection, immediately priorto boarding the aircraft, pursuantto §175.30(b ).
In considering the facts for ViolationNo. 10, the regulations described in49 C.F.R. § 175.30(b), (c), and (d) are reviewed in combination. These regulations require a physical inspection ofthe integrity ofthe package immediately priorto taking it aboard the aircraft (after acceptance). Paragraph (b), together withparagraphs (c) and (d), speak directly to a physical inspection ofthe package. 49 C.F.R. § 175.30(b). Paragraph (c) specifically speaks to the criteria ofthe inspection required inparagraph (b): the integrity ofthe package. Finally, paragraph (d) provides an exceptionto (b) and (c).
The FAA offered no testimonial or documentary evidence regarding the integrity ofthe package orthe Respondent's possible failure to inspect the integrity ofthe package immediately before the Respondent carried it aboard the aircraft. Instead, the FAA asserted only a presumption

- in essence, that the trier offact should simplypresume thatthe Respondent failed to inspectthe shipment immediatelybeforeplacing it aboard the aircraftbecause ifthe Respondent had conducted such an inspection, the Respondent presumptively wouldhave known or should have knownthatthe package contained

## ahazmat, whether ornot the physical integrity inspection ofthe package had shown leaking or exterior damage (1129/13 Tr. 313:2-20.)
In fact, there was no evidence to show that the package was leaking, orvisibly damaged atthe time it was placed aboard the aircraft. There was no evidence to showthat the Respondent failed to inspectthe exterior integrity ofthe package for leaks or damage immediately before loading it onto the aircraft. Indeed, in the Respondent's responsive case, Mr. Fostertestified that he did examine the package before stowing it inthe aircraft, and that it was "sealed and closed" and packed inside a "substantial" and "suitable" container. (1/30/13 Tr. at 512). Based onthe evidence presented, the FAA failed to prove the violation, and it is dismissed. 5) Violation No. 11 (49 C.F.R. §§ 175.30(e)(2), and 6) ViolationNo. 12 (49 C.F.R. § 175.30(e)(3) (Failure to take reasonable steps to establish thatthe inside hazmat labeling, etc., is reproduced onthe outside ofthe overpack) Violations No. 11 andNo. 12 are almost identical, and so are addressed together. The FAAhas failed to prove either violation, so both are dismissed.

Page 8 of 19Section 175.30(e) regulates the acceptance ofan overpack in hazmat shipping, and provides the conditions ofthe overpack that the operator must take reasonable steps to establish. Section 175.30(e) states inrelevantpart: 

### "Anoverpack containing packages ofhazardous materials may be accepted only ifthe operatorhas taken all reasonable steps to establish that:

... (2) The proper shipping names, identification numbers, labels and special handling instructions appearing onthe inside packages are clearly visible orreproduced onthe outside · ofthe overpack, and (3) The word "OVERPACK" appears onthe outside ofthe overpack when specificationpackagings are required." 49 C.P.R. § 175.30(e) (2011). The threshold issue in determining whether the Respondent violated 49 C.P.R. § 175.30(e) is whether the Respondent accepted an overpack containing hazardous materials that was notproperly labeled. The HMRdefines overpack as "an enclosure that is used by a single consignor to provide protection or convenience inhandling ofa package or to consolidate two or more packages." 49 C.P.R. § 171.8 ("overpack"). A package is defined as "apackaging plus its contents." 

### !d. A packaging is defined as "areceptacle and any other components ormaterials necessary for the receptacle to perform its containment function in conformance with the minimum packing requirements ofthis subchapter." 

### !d.
In the transportation ofdiesel fuel, there must be either an innerpackaging contained in an outerpackaging ("combinationpackaging") 

### or a specification singlepackaging. 49 C.P.R. § 173.203. The combinationpackaging may consist ofa specification innerpackaging consisting ofa receptacle or ampoule ofvarious materials and an outerpackaging consisting ofany number ofspecificationpackagings, 

### including a fiberboard box. !d. It is noteworthy that during the two day hearing, this allegation asserting an overpack violation of49 C.P.R.§ 175.30(e) was never discussed. In fact, the term overpack was never utilized by any PAA witness. The PAA offered no testimony establishing the general definition ofan overpack, or describing inparticular whatconstituted an overpack in this case. In addition, the PAA failed to prove that an overpackwas requiredpackaging inthis instance. A violation of49 C.P.R. 

### § 175.30(e) is not one offailing to use an overpack. Rather, it is accepting an overpack without ensuring certain information appears onthe overpack. The admitted evidence demonstrates that there were two bottles containing diesel fuel, eachpacked inside a plastic bag (i.e., in a receptacle), and then inside an outer package: the fiberboard box. Bythe terms of49 C.P.R.§ 173.203, the fiberboard box is a necessary component ofthe minimum required HMRouterpackaging. Pursuantto 49 C.P.R. § 173.203, the shipped package at issue herein therefore consisted ofthe inner packaging (the bottles inside the plasticbags which were a necessary component for the bottles to perform their containment function), their hazmat contents (the diesel fuel), and the outerpackaging (the fiberboard box). Page 9 of 19To find that the fiberboard box itselfwas an overpackrequires the assumption that each bottle was its own "package" consisting ofthe bottle (the receptacle) andthe diesel fuel it contained (its contents). This assumption would also require the trier offact to ignore the definition ofpackaging provided in 49 C.F.R. § 173.203, which specifically allows for hazardous material to bepacked inside a fiberboard box. By definition, an overpack might have beenused to consolidate the fiberboard box with another fiberboard box, but there was no evidence adduced to show 

### itwas required.
In addition, the FAApresented no evidence that every single bottle containing diesel fuel is required to be packed separately in a fiberboard box, orthat two bottles ofdiesel fuel packed together in an innerpackage, within a fiberboard box, amounted to the use ofan overpack. The FAA failed to prove this allegation, and it is dismissed. 7) ViolationNo. 13 (49 C.F.R. § 175.33(a))(Failure to provide the PIC with written information about the hazmat shipment as early as possible priorto departure) The FAAprovedthis violation. 49 C.F.R. 

### § 175.33(a) requires that when a hazmat, subjectto the HMR, is carried aboard an aircraft, the Respondent mustprovide the pilot-in-command ("PIC") with written information about the hazmat as early as practicable, prior to departure. 49 C.F.R. § 175.33(a). The Respondent argued that section 175.33(a) didnot apply to it as a WNC carrier. (1130/13 Tr. 541 :6-11.) As noted earlier herein, this argument was not legally correct, and was notpersuasive. Diesel fuel is a hazmat subject to the HMR. 49 C.F.R. § 172.101. A carrier's WNC designation does not aetas a protective shield against HMR charges, ifthe carrier violates its WNC designation and handles hazmat. During the Respondent's defense case at hearing, Mr. Foster emphasized that SGS never told himthatthe material was hazmat. Mr. Foster, the PIC, accepted the package from SGS, loaded the package onto the aircraft, and only had knowledge ofits declared contents (i.e., oil samples) (1/30/13 Tr. 540:16-541:5). Thus, the package- which actually contained diesel fuelwas carried aboard the aircraft by Mr. Foster, the PIC, without any written notification from either SGS orthe Respondent ofits true contents, diesel fuel, priorto departure. Mr. Foster's defense was notpersuasive inrebutting the charge. Whenthe Respondent accepted the package, ithad an affirmative duty to inquire about the contents, and an affirmative duty to ensure thatthe contents ofthe package were shippable as packaged. 

### See, e.g., In the Matter ofScottNovak, FAA-2012-1206 (Decision and Order, January 2, 2014)(The HMR "require[s] inquiry andtreats a person as possessing whatever knowledge inquiry wouldhave produced

..." 

### citingInterstate Chemical Company, Inc.), FAA OrderNo. 2002-29 at 13 (December 6, 2002), quoting 

### Contract Courier Services, Inc. v. Research & 

### Special Programs ·Administration, US. Dept. a/Transportation, 924 F.2d 112, 114 (7th Circ. 1991).

Page 10 of 198) ViolationNo. 14 (49 C.F.R. § 175.33(b)) (During flight transport, failure to have available for the PIC a written copy ofhazmatnotification and ERresponse information) The FAAprovedthis violation.
As noted above, 49 C.F.R. 

### § 175.33(a) requires that a copy ofthe written hazmat notification be providedto the PIC. In addition, 49 C.F.R. § 175.33(b) requires that suchwritten notification, as well as emergency response information, be maintained and available to the PIC during transport ofthe hazmat shipment. 

### /d. Itwas undisputed that during transport ofthe hazmat on October 21, 2009, Mr. Fosterdid not have eitherthe written hazmat notification or the emergency response hazmat information. Mr. Puntonet explainedthat it is important for the PIC to have the emergency response information available because it directs what action the PIC would needto take inthe event ofan in-flight emergency or spillage. (1/29/13 Hr'g Tr. 278:3-13.) The emergency response information is critical whenever a hazmat i.s carried in an aircraft. During the hearing, the Respondent again argued thatthe HMR did not apply to it because ofits WNC status. (1/29/13 Tr. 279:17-22.) This argument was not persuasive. By accepting a hazmat for transportationby air, the Respondent placed itselfin a situation where its PIC needed this critical information. The Respondent's failure to provide its PIC thehazmat information and the emergency response information for the subject flight was a violation of49 C.F.R. 

### § 175.33(b). 

### C. FAA's Proposed Civil Penalty of$59,600
In its.September 8, 2011 Complaint, the FAA chargedthe Respondent with a total of 16 HMRviolations arising from the October 21, 2009 incident. The FAAproposed a total civil penalty of$59,600 for all16 violations. Atthe Summary Judgment Motion Conference on December 6, 2012, the FAA confirmedthat it was not seeking any civil penalty for Violation Nos. 1 and 2 (i.e., the violations charged under 49 C.F.R. 

### §§ 171.2(a) and 171.2(b)). (12/6/12 Mot. Conf. Tr. 46:13-18.) Subsequently, the December 28,2012 Summary Judgment Order foundthatthe FAA was entitledtojudgmentas a matter oflawonfive (5) violations,3 which included ViolationNos. 1 and 2. An additional three (3) violations 4 were dismissed by the Summary Judgment Order because the chargedviolations did not exist inthe regulations. Because ofthe FAA's December 6, 2012 confirmationthat no penalty was sought oneither Violation No. 1 or 2, the civil penalty assessed for violations provenby Summary Judgment would involve only 3 ofthe 5 proven**v~olations.** This left for evidentiary resolution by Hearing the remaining eight (8) violations,5 as well as the total amount ofcivil penalty for all proven violations (by SummaryJudgment and by evidentiary admission at the Hearing).

3 Violation Nos. I, 2, 3, 8, and 9. 4 Violation Nos. 4, 15, and 16. 5 Violation Nos. 5, 6, 7, 10, 11, 12, 13, and 14. Page 11 of 19Atthe January 2013 Hearing, the FAA argued during closing that it hadproved all remaining 8 violations, thus proving a total of 13 violations (i.e., 8 proved atthe Hearing, plus the 5 proved by SummaryJudgment). The FAAthen re-recommended the originally proposed penalty of$59,600, even though there remained only a potential total ofeleven (11) violations (instead ofthe originally charged 16 violations) for civil penalty assessment. (Essentially, ofthe alleged 13 violations allegedly proven, the FAA did not seek a penalty ViolationNo 1 and 2, thus leaving a potential total ofeleven (11) violations for civil penalty assessment). Although Mr. Bulted had beenthe FAA investigating officer who hadpreparedthe original charging documents, and calculatedthe recommended penalty of$59,600, he did not present any testimony aboutthe penalty. Instead, the FAApresented Ms. Pershameron Dye's testimony onthe proposed civil penalty issue. Ms. Dye had never worked as an FAA field agent, and had onlyrecently begun supervisory duties within her department. She explained thatthe recommended civil penalty of$59,600 was based on "the facts that we had in front ofus" atthe time ofthe investigation, priorto whenthe Complaint was filed in 2011. 1/30/13 Tr. 473:17-19. According to Ms. Dye, the $59,600 proposedpenalty was based solely "onthe sanction sheet" used bythe FAA investigators, when all 16 charged violations had beenconsidered. 1/30/13 Tr. 455:13-16. Ms. Dye also explained that once an FAAinvestigation recommendation for penalty was made, it was the Respondent's burdento provide more facts, so that the proposed penalty might get reduced. "That's it. Ifit is reduced, okay. It's reduced." 1/30/l3 Tr. 455:15-16.
Ms. Dye nevermade clear howthe FAA could support a continuing request for a $59,600 civil penalty after the Summary Judgment Order had dismissed 3 ofthe violations (because of non-existentregulations), and after the FAAhad confirmedthat it was not seeking a penalty on 2 ofthe remaining violations. Instead, Ms. Dye, who hadjustbeenpromoted by the FAAto serve as a supervisory hazardous materials specialist six months priorto the 2013 hearing, simply explainedhowthe FAAhad calculated the originally proposed $59,600 penalty priorto filing its 2011 Complaint. Based onthe Respondent's size, it was deemedto be a Group IV air carrier. (1/30/13 Tr. 410:9.) The acceptance andtransportation ofdiesel fuel, a Class 3 hazmat inPacking Group III, carried a moderate weight. (1/30/13 Tr. 407:10-18; Ex. C-17 at C-17.)
Ms. Dye also explainedthatthe FAAhad aggravated the moderate weight to maximum, and then assessed the Respondent the maximumpenalty in each category ofviolation, because the Respondent was designated a WNC carrier and "they shouldhave knownbetter." (1/30/13 Tr. 410:10-15, 412:2-413:22.) According to Ms. Dye, the only factor the FAAutilized to aggravate the proposed penalty from the moderate to maximum range was the Respondent's WNC designation. Ms. Dye explainedthat it was the Respondent's responsibility to try and get the penalty reduced from the maximum amounts the FAA hadproposed.

Page 12of 19

### D. Civil Penalty Analysis and Assessment
As discussedherein, the FAA has proven a total of8 ofthe 16 violations originally charged. The eight (8) otherviolations have been dismissed (i.e., 3 were dismissed as a matter of lawby Summary Judgment Order, and 5 are dismissed herein as notprovenby the evidence). Ofthe 8 proven violations, the FAA previously confirmedthat it did not seek any civil penalty on 2 ofthe violations (i.e., ViolationNos. 1 and 2) (12/6/12 Mot. Conf. Tr. 46:13-18.) This leaves a total of6 provenviolations for penalty assessment (i.e., ViolationNos. 3, 5, 8, 9, 13 and 14) instead ofthe originally charged total of 16 violations. However, withinthe 6 remaining provenviolations, the violation of49 C.F.R. 

### § 175.3 (i.e., ViolationNo. 3) warrants no civil penalty. Section 175.3 is general, introductory language prohibiting transportationby air ofhazmat "notprepared for shipment in accordance withthis subchapter." 49 C.P.R. § 175.3. The Respondent is being assessed a civil penalty for violations ofthe specific regulations contained inthe subchapterthat result inthe violation ofSection 175.3. While the Respondent did violate 49 C.P.R. 

### § 175.3, no civil penalty will be assessed, because there were more specific regulations proven in this category (i.e., ViolationNos. 8 and 9). See In re PaulA. Carr, FAA Order 98-2 at 14-15 (Mar. 10, 1998) (violations ofgeneral, introductory sections ofthe HMRs should not necessarily count as separate violations for sanction purposes, when violations ofmore specific regulatory requirements are proven), modifiedon othergrounds byFAA Order 98-8 (May 1, 1998). Thus, a total of5 proven, specific regulatory violations remain for penalty assessment (i.e., ViolationNos. 5, 8, 9, 13 and 14).
Pursuant to 49 U.S.C. § 5123(c) (2006), nine factors mustbe considered inthe 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 gravity ofthe violations; as well as the Respondent's 5) degree ofculpability; 6) history ofprior violations; 7) ability topay; 8) ability to continue to do business; and 9) such other matters thatjustice requires. The FAA used the Hazardous Material Sanction Guidance Matrix and a related weighting analysis to considerthe statutory factors when calculating the proposed civil penalty. (Ex. C-17 at C-2.} Although this guidance is not binding on administrative lawjudges, it does provide valuable assistance in any civil penalty analysis and assessment. 1) Analysis ofthe first five factors of49 U.S.C. 

### § 5123(c) (i.e., the nature ofthe violations; circumstances surroundingthe violations; the extent ofthe violations; the gravity of the violations andthe Respondent's degree ofculpability. Itwas undisputed that in 1982 Mr. Foster started his own company, Respondent herein, which operated as a single-pilot commuter airline inthe Caribbean from 1982-2009. (1/29/13 Tr. 255:10-16; 1130/13 Tr. at 525:16-18.) Beginning in 2010 through the present, the Respondent has operated only as an "ondemand air carrier" located in St. Croix. (1129/13 Tr. 254:20 and
Page 13 of 19256:1-4.) Mr. Foster is the Respondent's only pilot. The Respondent operates two small aircraft, a Cessna 402 and a Cessna404. These aircraft each have less than 10 passenger seats. (1129/13 Tr. 256:5-17.)



### a. The FAA'sArgument forAggravatedFinding Throughoutthis case, the FAAhas asserted that in accepting hazmat, a WNC carrier places itselfin the same position as a WC carrier for HMR charges and penalty assessment. Thus, the Respondent as a WNC carrier who improperly accepted hazmat was subject to WC HMR charges andpenalty assessment. This court has accepted that assertion. However, Ms. Dye also testified that because the Respondent, a WNC carrier, transgressed into a WC operator status, that the violation itselfwas an aggravating factor. In Ms. Dye's opinion, the fact that the violations were committed by a WNC was sufficient grounds to aggravate the penalty in this case. This assertion is not supported by the HMRs, and was not persuasive. The facts and law presented do not supportutilizing the violation itselfas an "aggravating" factor to further punish the WNC carrier by maximizing the penalty against it.
In otherwords, ifthe hazard class and packing group ofthe hazmat place the violation in the moderate range, the very act ofthe WNC operator committingthe WC operator violation cannot automatically aggravate the WNC operator (but not the WC operator) to the maximum range. To find otherwise would render the minimum, moderate, and maximum weighting scale for charges proven against WNC operators completely meaningless, because all HMRviolations committed by WNC operators would automatically begin in the maximum range simply by virtue ofhaving been committed
Ms. Dye is correct that "the air carrier is the last defense on [sic] keeping

... improperly declared orundeclaredhazardous materials out ofthe air." (1130/13 Tr. 408:21-409-3.) However, this is presumably why the FAA applies a separate penalty matrix to air carriers than it does to individuals and other businesses offering hazmat for transport by air (Ex. C-17 at C-12 to C-13), and why the matrix applicable to air carriers imposes significantly higher penalties. (!d.) The FAA's argument in support ofan aggravated finding is not persuasive, and is not adopted herein. 

### b. Moderate WeightAssigned In regard to the first statutory factor, the facts ofthis case support a moderate weight for civil penalty assessment. The nature ofthe hazmat- Hazard Class 3, Packing Group III- also supports a moderate weight in assessing a civil penalty. (1/30/13Tr. 407:10-18.) However, the circumstances, extent ofthe violations, the gravity ofthe violation, and the Respondent's degree ofculpability weighs in favor ofa penalty at the mid to lower end ofthe moderate range. For example (not inclusive), it was undisputed that SGS preparedthe shipment,
Page 14of 19packedthe shipment, mislabeled the shipment, and verbally mislead the Respondent as to its contents. The Respondent was specifically told by an SGS employee that the package contained oil samples that were exempt from the HMRs. (1/30/13 Tr. 540:12-15.) While this does not remove the culpability ofthe Respondent in its acceptance ofSGS's undeclared.hazmatpackage, orthe Respondent's culpability in its failure to independently exercise reasonable inquiry and care, itcertainly should be considered as part ofthe circumstances surrounding the violations when determining the appropriate penalty. Itwas also undisputed that the Respondent never intended to violate the HMRs, and did not deliberately accept or transport hazmat. Itwas undisputed that most ofthe shipments the Respondent had accepted from SGS over the years had eitherbeen "scientific equipment such as scales, test tubes, beacons" and other such equipment, orthe transportation ofSGS personnel on passenger flights (1/30/13 Tr. at 517:4-11). The Respondent's 31 yearhistory ofhazmat safety compliance supports the Respondent's assertion thatthe October 21, 2009 incident was an isolated andunfortunate mistake that will notbe repeated.
In addition, it was undisputed that diesel fuel is not a forbidden material aboard passenger carrying aircraft. 49 C.F.R. 

### § 172.101. While the quantity ofdiesel fuel transported inthis case (i.e., 2 pints) was more than an excepted orde minimus amount under the HMRs, it was well within the 60 liter quantity allowable for transportation aboard a passenger aircraft. 

### !d. Again, while this does notremove the culpability ofthe Respondent in its acceptance ofthe hazmat

- it should have exercised reasonable care andrefused the package as submitted- it certainly should be considered as part ofthe gravity ofthe violation in determining the appropriate penalty. Overall, the civil penalty categoryper violation is moderate -but some facts and circumstances weigh towards the lower end ofthe penalty range. 2) Analysis ofthe last four factors of49 U.S.C. § 5123(c) (i.e., the Respondent's history ofpriorviolations; ability to pay; ability to continue to do business; and such other matters that justice requires. It was undisputed that Mr. Foster had substantial experience as a pilot, and thatthe Respondent, the company owned and managed by Mr. Foster, did nothave any history ofHMR violations. Mr. Fostertestified that he had worked approximately 40 years as an airline pilot. He trained as a helicopterpilot during Army officer training, and then spentthree tours flying various aircraft during the Vietnam War (1/30/13 Tr. at 523:17-21). After the war ended, Mr. Foster continued flying aircraft for various companies inthe United States (1130/13 Tr. at 524:3- 527:10). He eventually moved to the Caribbean, where he first worked for Mr. Bohlke's company before starting his ownbusiness. As noted earlier, in 1982 Mr. Foster started his own company, Respondentherein, which had operated first as a small commuter airline, and then since 2010 as a single-pilot "ondemand" airline inthe Caribbean (1130/13 Tr. at 525:16-18). As an airline pilot, and as the company owner, Mr. Foster took pride inhis longitudinal history ofsafety compliance. [Mr. Foster] We do it right. We don'ttake shortcuts and it'spaid offinthe 35 years that I've operated down here. I've never had a material failure. I've never Page 15 of 19had an accident. I've never hurt anybody and that's unusual inthe Caribbean. But that's the way I 

### run my business. (1130/13 Tr. at 527:2-9). The FAA did not dispute this evidence, but instead asserted that safety compliance was the expected norm, and shouldnotbe considered as a mitigating factor. The FAAis correct. Therefore,.it is not consideredherein as a "mitigating" factor. However, the Respondent's evidentiary proffer ofsafety compliance is considered as part ofthe overall case, asjustice reqmres. The FAA did agree that the Respondent's ability to pay and/or considering any corrective action the Respondent hadtaken could be considered as mitigating. (1/30/13 Tr. 416:11-21.) However, the FAAnoted that the Respondent had not provided any financial information regarding its ability to pay (1/30/13 Tr. 417:4

..7) nor had the Respondentprovided any information regarding corrective actions (1/30/13 Tr. 417:8-10). Upon inquiry by the court, Mr. Foster agreed that the Respondent hadnotprovided any financial documentation. (1/30/13 Tr. 559:21-561:21; 563:6-15.) Mr; Fostertestified, however, that the proposed civil penalty would "severely hurt" [undescribed] the Respondent's ability to continue operations. (1/30/13 Tr. at 515:8-11.) Mr. Foster testified thathe had already paid "approximately $2500" to hire a pilotto cover his Wednesday flight, so he could appear and defend his company at the hearing. (1/30/13 Tr. at 518:5-12.) He also explained that the closure ofthe local oil refinery6 had cuthis business profits [unspecified] in half: [Mr. Foster] Coastal Air is a small single-pilot airline. As most airlines are inthis environment down here inthe Caribbean, especially in St. Croix withthe closing ofthe oil refinery, business has dropped inhalf. Right nowwe'repaying ourbills butnot much more thanthat. I don'tknowwhat the future holds. ·(1/30/13 Tr. at 515:11-19). Mr. Foster described the proposed $59,000 fine as "excessive." (1130/13 Tr. 535:11). It was the equivalent oftwo (2) years ofcollege costs for his younger child (1/30/13 Tr. at 535:19- 22). He had dealt with the FAA "for about 45 years" and had never seen anyone else fined so heavily. (1/30/13 Tr. 536:1-21.) While Mr. Foster's analogy ofthe FAA'sproposed fine as being equivalentto college tuition was likely accurate, itwas not sufficient proofofeitherthe Respondent's actualability to pay or its actual ability to continue to do business. The affi1111;ative defense offinancial hardship requires a showing by the Respondent ofreliable, supporting documentation, such as tax records and other company financial data. See In reAtlas Frontiers, LLC, FAA OrderNo. 2010-10 at 12 (Jun. 16 2010) (the Respondent bears the burden ofproofoffinancial hardship, because its financial records are· within its sole control). ·

6According to Mr. Foster, the oil refmery operated on St. Croix until about February 2012. 1/30/13 Tr. at 546:10-14. Page 16 of 19Mr. Foster also agreed that he had not submitted any evidence ofcorrective action. Instead, he emphasizedthe Respondent's long years ofcooperative partnership with FAA officer Mr. Putenot. [Mr. Foster] He's been a greatpersonto work with because he'll come over and tell youthat this is coming out

- this needs to be done in the future

- this is what they wantto see and, ofcourse, we sometimes have people come down from Floridato inspect us and he'll say, get a grip onthis and get out ahead ofit and he'll tell us this has to be done six months down the road- start it nowandhave it done, and we do it. And it'sjust- that'sjustcompliance. There's no reason to run from these folks. They're there- they're really there to help you and that's how- that's how our attitude has been. 1/30/13 Tr. 537:6-20. Itwas undisputed that Mr. Putenot was an expert in multiple aviation fields. He had worked inthe aviation business for over 37 years (1/29/13 Tr. 294:21-295:14). He had served as an FAA aviation safety inspector for over 15 years. (1/29/13 Tr. 294:9-10). He had worked with the Respondent for approximately ten years (1/29113 Tr. 294:14-20).
Mr. Putenot agreedthat the Respondent had been in compliance with FAA safety regulations whenever he had personally inspected it. (1/29/13 Tr. 296:3-9). Although Mr. Putonet did notpersonally performhazmat enforcement, he opined thatbased onthe facts presented herein, a lower fine (unspecified) assessed against the Respondent would have been more reasonable. (1129/13 Tr. 299:15-19,307:20-21, 308:11-12; 309:15-18, 310:4-6.) This court agrees withMr. Putenot. While the regulations require thatthe civil penalty amount have a sufficient "bite" or deterrent effect, this does notmean that the penalty be harshly punitive or excessive. Instead, the "bite" is supposed to promote compliance, and deter future violations by the Respondent and/or others. See, e.g., In the Matter of ScottNovak, FAA2012-1206 (Decision and Order, January 2, 2014)(The fine should appropriately reflect the sanction guidance, the statutory factors, andthe totality ofthe circumstances). It should also be noted that during the FAA's closing argument, the FAAproposed, as an alternative to the $59,600 proposed penalty, a moderate range penalty amount. (1/30/13 Tr. 589: 19-590:7). This alternate FAA proposal, which assumed penalties assessed for 11 violations, totaled $34,550. This alternate proposal in the moderate range has also been considered, but limitedto the 5 violations actually proven and subjecttopenalty assessment herein. 3. Assessment ofCivil Penalty- Total $16,500: Based on the foregoing, this court assesses a total civil penalty of$16,500 as follows:

Page 17 of 19a. Violation Nos. 1 and 2 (49 e.F.R. §§ 171.2(a) and (b))- No Penalty. Theseproved violations, charged under the general hazmatregulations, demonstrated that the Respondent had improperly accepted a hazmatpackage for transport. (12/28/12 Summary Judgment Order). The FAA sought no civilpenalty for these two general violations of49 e.F.R. 

### §§ 171.2(a) and 171.2(b). (12/6/12 Mot. eonf. Tr. 46:13-18.) (12/6/12 Mot. eonf. Tr. 46:13-18.). Therefore, no penalty is assessed.
b. ViolationNo.3 (49 e.F.R. § 175.3)- No Penalty. As noted earlier herein, this proved violation warrants no civil penalty. Like ViolationNos. 1 and 2, ViolationNo. 3 was charged under general, introductory language prohibiting transportationby air ofhazmat "notprepared ·for shipment in accordance with this subchapter." 49 e.F.R. 

### § 175.3. Inthe case herein, the Respondent is already being assessed a civil penalty for proven violations ofthe specific regulations (i.e., Violation Nos. 8 and 9).

c. ViolationNo.5 (49 e.F.R. 

### § 175.20)- $5,500 Penalty. This proved violation demonstrated thatthe Respondent failed to provide wehazmattraining to its employees. (Id.; 1/30/13 Tr. 413:8-12.) Itwas undisputed that the Respondent had no intention ofserving as a we carrier, andthus had notprovided We hazmat training to any employee. After 31 years of doing business, this was the Respondent's first hazmat offense. Although Mr. Putenot recommended thatthe Respondent update its currenthazmattraining so 

### itcould be more successful inrecognizing and declining potential hazmat in the future, he did not assert that the Respondent had been in violation ofany WNe training requirements prior to this incident. Accordingto the sanction guidance, the civil penalty range for this violation is $5,000- $16,200 (Hr'gEx. e-17 at e-13.). Basic mathematical calculations showthatthe mean inthe range is $10,600. Thus, a fine in the minimumrange would be approximately between $5,000- $8,733.33, inthe moderate range $8,733.34-$12,466.67, and in the maximumrange $12,466.68-$16,200. In its closing argument, the FAA alternatively recommended a fine of $9,350 (instead ofthe maximum of$16,200) for this violation. (1130/13 Tr. 590: 1-7). Given all thefacts and circumstances inthis case, the fine imposed is $5,500. d. Violation Nos. 8 and 9 (49 e.F.R. 

### § 175.30(a)(2) and (3))- $8,500 Penalty. These two proved violations, charged under specific regulatory authority, demonstrated that the Respondent improperly accepted one package containing hazmat, withoutproperhazmat description, certification, marking, or labels (Hr'g Ex. e-17 at e-13; 1130/13 Tr. 412:19-413:2) The civil penalty range for this violation is $2,500-$16,200 (Hr'g Ex. e-17 at e-13.) Basic mathematical calculations showthat the mean is $9,350. Thus, a fine in the minimumrange would be approximately between $2,500-$7,066.66, inthe moderate range $7,066.67- $11,633.33, and in the maximum range $11,633.34-$16,200. In its closing argument, the FAA alternatively recommended a fine of$9,350 (i.e., the mathematical mean amount ofthe range) for these two violations. Given all the facts and circumstances inthis case, the fine imposed is $8,500.

e. ViolationNos. 13 and 14 (49 e.F.R. 

### §§ 175.33(a) and (b))- $2,500 Penalty. These two proved violations demonstrated the Respondent's failure to provide proper notice to the pilot-in-command ofthe hazmat shipment and emergency contact information. (/d.; 1/30/13
Page 18 of 19Hr'g Tr. 413:13-17.) The civil penalty range for this violation is $1,000- $5,500 (Hr'g Ex. C-17 at C-13.) Basic mathematical calculations show that the mean is $3,250. Thus, a fine in the minimum range would be approximately between $1,000-$2,500, in the moderate range $2,500

- $4,000, and in the maximum range $4,000-$5,500. In its closing argument, the PAA alternatively recommended a fine of$3,250 (i.e., the mathematical mean ofthe range) for these two violations. Given all the facts and circumstances in this case, the fine imposed is $2,500. Based onthe foregoing the Respondent is assessed a total civil penalty of$16,500 for proven Violation Nos. 5, 8, 9, 13, and 14. This $16,500 fine has sufficient "bite" to promote compliance, and deter future violations by the Respondent and others. It also reflects the sanction guidance, the statutory factors, and the totality ofthe circumstances.
Pursuantto 14 C.P.R. 

### § 13.232(d), this Initial Decision shall be considered a final order assessing civil penalty unless either party files a notice ofappeal within 10 days ofservice ofthis Initial Decisionpursuant to 14 C.P.R. 

### § 13.233.

IVan

· strative Law Judge

Attachment: Service List

Page 19 of 19FDMS No. FAA-2011.,.1005 (Civil Penalty Action) SERVICE LIST- BY 

### U.S. MAIL and FAX 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

Ms. Rashawn Rich George, Esq. Complainant's Counsel Office ofthe Regional Counsel, AS0-7 SouthernRegion Federal Aviation Administration P.O. Box 20636 Atlanta GA 30320 TEL: 404-305-5200**F~:** 404-305-5223 

### Mr. Michael Foster, President Coastal Air Transport, Inc. Respondent P.O. Box 3985 Christiansted, St. Croix, VI 00822 TEL & F**~:** 340-773-6862

The Honorable J.E. Sullivan U. S. Administrative Law Judge Office ofHearings, M-20 U.S. Department ofTransportation 1200 NewJersey Avenue, S.E. (E11-310) Washington, DC 20590 TEL: 202-366-2132 FAX: 202-366-7536 ONE COPY

1 Service was by U.S. Mail. For service inperson or by expedited courier, use the following address: Federal Aviation Administration, 600 Independence Avenue, S.W., Wilbur Wright Building-Suite 2Wl000, Washington, DC 20591; Attention: Hearing Docket Clerk, AGC-430.