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.· 

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Case No. 1010-S0-700037 

Respondent 

INITIAL DECISION OF U.S. ADMINISTRATIVE LAW JUDGE 

Held by December 28, 2012 Summary Judgment Order: 

1) The Respondent committed the following five (5) violations: Violation No. 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 of law: Violation No. 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: Violation No. 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: Violation No.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., Violation Nos. 1, 2, 3, 8, and 9, and Violation Nos. 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 of the 

Hazardous Materials Regulations ("HMR") contained in 49 C.F.R. chapter I, subchapter C, 

based on an incident that occurred on October 21, 2009. The FAA proposed a total civil penalty 

of$59,600 for all16 violations. 

On August 30, 2011, the prose Respondent filed a letter requesting a hearing. On March 

23, 2012, the Respondent filed an Answer denying the alleged violations. 

On December 28,2012, an Order Granting Partial Summary Judgment in Favor of Each 

Party, Confirming the Hearing Date on Limited Issues, and Granting/Denying Other Relief was 

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 to judgment as a matter of law on 

the alleged violations of 49 C.F.R. §§ 171.2(a), 171.2(b), 175.3, 175.30(a)(2), and 175.30(a)(3) 

(i.e., Violation Nos.l, 2, 3, 8, and 9). This Order also found that the Respondent was entitled to 

summary judgment on the alleged violations of 49 C.F.R. §§ 175.20(a), 175.35(a), and 175.85(a) 

(i.e., Violation Nos. 4, 15, and 16) because the cited regulations did not appear in the HMR on 

the date ofthe alleged violations, or even subsequently, on the 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 amount of civil penalty for all violations proven- both by summary judgment 

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 on the eight remaining 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 moved to 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 brief summary is provided herein. 

The Respondent is a small, certificated air carrier that operates Part 13 5 flights in the 

Carribbean. As part of its air carrier program, the Respondent entered into an agreement with the 

FAA that the Respondent would neither accept for air transport, nor transport hazardous 

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 than required for a- Will Carry 

("WC") carrier under 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 an unspecified 

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time prior to 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 offered by SGS, a company that provided oil samples for Hess, an oil 

exploration and refining company. (1/30/13 Tr. 546-47.) Mr. Foster, the PIC, accepted the 

package from SGS in the Statia Customs area. The package was marked with a label that Mr. 

Foster did not recognize at the time of acceptance. (1130/13 Tr. 545:5-11.) Mr. Foster believed 

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 Statia to 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 of a Class 3 hazardous material. 

(!d.) The box was detained and the contents of the package were ultimately determined to be 

two, one pint bottles of diesel 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 brief summary and analysis when needed. 

A. Respondent's Two Re-Raised Arguments 

First, despite multiple discussions regarding summary judgment (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 summary judgment motion conference (12/6/12 Tr.87: 17-

110:5) and the Summary Judgment Order issued on December 28,2012, the prose Respondent 

re-asserted during the January 2013 hearing that: 1) the FAA needed to prove at the Hearing that 

the shipped package contained hazardous materials (See e.g., 1/30/13 Tr. 541:12-544: 14; 1/30/13 

Tr. 571: 13-16); and 2) the HMR did 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 of the shipped package. The contents of the package was diesel fuel, 

as found by the Summary Judgment Order (Summ. J. Order 8.). This summary judgment finding 

was based on evidence provided by the Respondent to the FAA in response to the FAA's 

investigation letter of December 11, 2009. The FAA submitted this evidence, a Material Safety 

Data Sheet ("MSDS") as part of its motion for summary judgment. The MSDS was admitted 

without objection, and considered as part of the summary judgment proceeding. The Respondent 

presented no evidence during the summary judgment proceeding to demonstrate that the MSDS 

1 Statia refers to St. Eustatius, a Dutch Caribbean island in the West Indies southeast of the Virgin Islands. 

Page 3 of 19 
was 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, the pro se Respondent has taken the position that the FAA should not be allowed to prove 

the contents of the package without producing the package and its contents. This is simply not 

correct, even when viewed under the strictest of evidentiary proof standards. Evidence may be 

submitted to the trier of fact, either during summary judgment proceedings or at a hearing, in 

many different forms. The FAA may meet its burden of proof through circumstantial evidence, 

such as a document, in lieu of producing 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 or test 

an actual sample of the alleged hazmat in the package, in order to submit credible evidentiary 

proof that it was hazmat. !d. 

Second, all throughout these proceedings, the pro se Respondent has disputed the 

standard necessary to bring it, as a WNC carrier, under the requirements of the HMR and to 

potentially impose a civil penalty for HMR violations. Section 175.1(b) provides that the HMR 

apply to any person who performs, attempts to perform, or is required to perform any function 

subject to 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 not to perform or attempt to 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 HMR violations. Once 

the Respondent accepted a hazmat package for transport in commerce, it was performing a WC 

function subject to the HMR and thus can be found in violation of the HMR. 

In other words, the standard for proving a hazmat violation is not whether the 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 of proof is whether the accused carrier knowingly 

violated the HMRs. 49 U.S.C. 5123(a). The proofof"knowingly violated" may be shown in 

two different ways: 1) A person acts knowingly when the person has actual knowledge of the 

facts giving rise to the violation, or 2) when a reasonable person acting in the same 

circumstances as the Respondent, and exercising reasonable care, would have that knowledge. 

!d. 

It was not the FAA's assertion that the Respondent had actual knowledge that the 

package contained diesel fuel, a hazmat. Instead, it was the FAA's assertion that a reasonable 

person, acting in the same circumstances as the Respondent and exercising reasonable care, 

would have the knowledge that the package was suspect, and would have refused it. Therefore, 

the FAA had the burden of proof to show that the Respondent, or a reasonable person acting in 

the Respondent's place, would have known, after exercising reasonable care, that the package 

was suspect and would have refused to accept it for shipment. The Respondent's responsive 

burden was to persuasively challenge the proof presented by the FAA, and/or to present 

affirmative defenses to the FAA allegations. 

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B. 8 Violations Litigated during the Hearing - 3 Proven and 5 Dismissed 

After the issuance of the 12/28/12 Summary Judgment Order, a total of eight (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 in the Summary Judgment Order, each violation below 

is identified by violation number, the charged regulation, and a brief description of the violation. 

The FAA's burden of proof on all alleged violations was by a preponderance of the evidence. 

1) Violation No.5 (49 C.P.R. § 175.20)(Hazmat employees not trained) 

The FAA proved that the Respondent violated 49 C.P.R. § 175.20.2 

It was undisputed that the Respondent, as a WNC carrier, did not have a training program 

in place that provided each of its hazmat employees the training required for a we carrier 

pursuant to 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 of possible hazmat, is all 

that is required for a WNC carrier, because it does not engage in the transport ofhazmat. 

(1/29/13 Tr. 141:8-14, 289-90.) 

However, as discussed above, the Respondent was mistaken in what triggers the 

requirements of the HMR. Once the Respondent knowingly accepted hazmat for transport in 

commerce, it was performing a function subject to the HMR and could be charged with 

violations of the HMR as if it were 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 Safety Act of 

1990, Pub. L. No. 101-615, § 7, 104 Stat. 3244,3254 (1990) (codified at 49 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 of the traveling public 

and violated section 175.20. 

2) Violation No.6 (49 C.P.R.§ 175.25) (Failure to display hazmat notices at Respondent's 

place ofbusiness) 

This violation is dismissed for failure of the FAA to prove it. 

49 C.P.R.§ 175.25 requires each person who engages in for-hire air transportation of 

passengers to display notices of the requirements applicable to the carriage of hazmat aboard 

aircraft and the penalties for failure to comply with those requirements, in locations where the 

2 The FAA originally alleged that the Respondent violated 49 C.F.R. § 175.20(b). (Compl. 4.) At the close ofthe 

January 2013 hearing, the FAA moved to amend the Complaint by removing the reference to paragraph (b) because, 

although the substance of the 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.) 

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carrier "issues tickets, checks baggage, and maintains aircraft boarding areas." 49 C.P.R. § 

175.25. 

The FAA provided only the scantest evidence on this allegation. Mr. Putonet was the 

only FAA witness who had ever visited the Respondent's place of business in St. Croix. He first 

testified that he could not recall 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 ifhe had 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 that the Respondent's ticket 

counter could be 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 had to be in a "big poster" (undefined)] size. However, whether or not Mr. Putonet saw 

(or could have seen) the required notices at the Respondent's business location while Mr. 

Putonet was driving past in his car on the second day of the 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. Putenot testified that 

whenever he had conducted a personal inspection of the Respondent's place of business, the 

Respondent had been in compliance. (1/29/13 Tr. 296:3-9.) It appeared undisputed that Mr. 

Putenot had been the 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. Foster testified that the FAA provided 

the Respondent with the 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) Violation No.7 (49 C.P.R.§ 175.26) (Failure to display hazmat notices at place of cargo 

acceptance) 

This violation is dismissed for failure of the FAA to prove it. 

49 C.P.R.§ 175.26 requires each person who accepts or transports cargo by aircraft to 

display notices, at each cargo acceptance facility, that notify people offering cargo of the 

requirements and penalties applicable to hazmat shipping aboard aircraft. 49 C.P.R.§ 175.26. 

There are two exceptions to the regulation where display of a 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 of the prohibition on shipments of hazardous materials through 

that location; or 2) 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 19 
As discussed above, the hazmat package was accepted in Statia. Judicial notice is taken 

that "Statia" is the abbreviated term for St. Eustatius, a Dutch Caribbean .island in the West 

Indies southeast of the U.S, Virgin Islands. 

The FAA did not present any prima facie evidence on this issue. 

After the FAA rested its prima facie case, the prose Respondent presented Mr. Foster's 

. testimony. In response to inquiry by the court, Mr. Foster testified that the Respondent posted 

notices at all of its business locations. Mr. Foster also explained that the Respondent "do[es] not 

have facilities in Statia," but that he had accepted the hazmat package from the shipper, SGS, in 

the Statia Customs area. (1130113 Tr. 530:17-531:13.) It was 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. 

Given the fact that the FAA did not pursue this allegation in its prima facie evidence, and 

the fact that there is an exemption contained in 49 C.F.R. § 175.26(d)(2) for a carrier to accept 

hazmat packages at the customer's facility, the evidence adduced during the Respondent's 

responsive case is insufficient to find a violation under 49 C.F.R. § 175.26. · 

4) Violation No. 10 (49 C.F.R. § 175.30(b)) (Failure of aircraft operator to inspect the 

hazmat package immediately before placing aboard the aircraft) 

This violation is dismissed for failure of the FAA to prove it. 

As part of the FAA's case-in-chief, Mr. Bulted testified that there were two different 

inspections ofhazmat shipments. (1129/13 Tr. 116-117.) The first, conducted by the air carrier 

at the time of acceptance, was a checklist of requirements required under 49 C.F .R. § 175.30(a). 

This included inspection of shipping 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 of inspection, where the 

package appearance raises "red flags" as to its preparation for shipment, was found by the 

12/28/12 Summary Judgment Order to have been committed by the Respondent (i.e., Violation 

Nos. 8 and 9). 

According to Mr. Bulted, the second package inspection occurred, "once they get ready 

to load a package on the aircraft, they conduct another inspection and that inspection is 

conducted for the purpose of determining that there was no leakage or damage to the 

package."(l/29/13 Tr. 117:9-13.) This second type ofinspection was required under49 C.F.R. § 

175.30(b ). It is the violation charged as Violation No. 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., Violation Nos. 8 and 9) versus the 

failure to properly inspect immediately before boarding the aircraft under 49 C.P.R. § 175.30(b), 

(c), and (d) (i.e., Violation No. 10) (Hr'g Ex. C-17 at page 13.) 

Page 7 of 19 
As noted above, the first type of inspection described by Mr. Bulted, and the resulting 

charges, was found proven in the 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 should have recognized- with the use of a checklist inspection prior to acceptance 

of the package -that the package contained a hazardous material and ensured that it was 

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, proof of a failure to recognize hazmat in 

the first inspection prior to acceptance does not automatically result in a presumption or finding 

that the Respondent failed to conduct the second type of inspection, a package integrity 

inspection, immediately prior to boarding the aircraft, pursuant to § 175.30(b ). 

In considering the facts for Violation No. 10, the regulations described in 49 C.F.R. § 

175.30(b), (c), and (d) are reviewed in combination. These regulations require a physical 

inspection of the integrity of the package immediately prior to taking it aboard the aircraft (after 

acceptance). Paragraph (b), together with paragraphs (c) and (d), speak directly to a physical 

inspection of the package. 49 C.F.R. § 175.30(b). Paragraph (c) specifically speaks to the 

criteria of the inspection required in paragraph (b): the integrity of the package. Finally, 

paragraph (d) provides an exception to (b) and (c). 

The FAA offered no testimonial or documentary evidence regarding the integrity of the 

package or the Respondent's possible failure to inspect the integrity of the package immediately 

before the Respondent carried it aboard the aircraft. Instead, the FAA asserted only a 

presumption - in essence, that the trier of fact should simply presume that the Respondent failed 

to inspect the shipment immediately before placing it aboard the aircraft because if the 

Respondent had conducted such an inspection, the Respondent presumptively would have known 

or should have known that the package contained a hazmat, whether or not the physical integrity 

inspection of the 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, or visibly damaged 

at the time it was placed aboard the aircraft. There was no evidence to show that the Respondent 

failed to inspect the exterior integrity of the package for leaks or damage immediately before 

loading it onto the aircraft. Indeed, in the Respondent's responsive case, Mr. Foster testified that 

he did examine the package before stowing it in the aircraft, and that it was "sealed and closed" 

and packed inside a "substantial" and "suitable" container. (1/30/13 Tr. at 512). 

Based on the 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) Violation No. 12 (49 C.F.R. § 175.30(e)(3) (Failure to take reasonable steps to establish 

that the inside hazmat labeling, etc., is reproduced on the outside of the overpack) 

Violations No. 11 and No. 12 are almost identical, and so are addressed together. The 

FAA has failed to prove either violation, so both are dismissed. 

Page 8 of 19 
Section 175.30(e) regulates the acceptance of an overpack in hazmat shipping, and 

provides the conditions of the overpack that the operator must take reasonable steps to establish. 

Section 175.30(e) states in relevant part: 

"An overpack containing packages of hazardous materials may be accepted only 

if the operator has taken all reasonable steps to establish that: ... (2) The proper 

shipping names, identification numbers, labels and special handling instructions 

appearing on the inside packages are clearly visible or reproduced on the outside · 

of the overpack, and (3) The word "OVERPACK" appears on the outside of the 

overpack when specification packagings 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 not properly labeled. 

The HMR defines overpack as "an enclosure that is used by a single consignor to provide 

protection or convenience in handling of a package or to consolidate two or more packages." 49 

C.P.R. § 171.8 ("overpack"). A package is defined as "a packaging plus its contents." !d. A 

packaging is defined as "a receptacle and any other components or materials necessary for the 

receptacle to perform its containment function in conformance with the minimum packing 

requirements ofthis subchapter." !d. 

In the transportation of diesel fuel, there must be either an inner packaging contained in 

an outer packaging ("combination packaging") or a specification single packaging. 49 C.P.R. § 

173.203. The combination packaging may consist of a specification inner packaging consisting 

of a receptacle or ampoule of various materials and an outer packaging consisting of any number 

of specification packagings, including a fiberboard box. !d. 

It is noteworthy that during the two day hearing, this allegation asserting an overpack 

violation of 49 C.P.R.§ 175.30(e) was never discussed. In fact, the term overpack was never 

utilized by any P AA witness. The P AA offered no testimony establishing the general definition 

of an overpack, or describing in particular what constituted an overpack in this case. In addition, 

the P AA failed to prove that an overpack was required packaging in this instance. 

A violation of 49 C.P.R. § 175.30(e) is not one of failing to use an overpack. Rather, it is 

accepting an overpack without ensuring certain information appears on the overpack. The 

admitted evidence demonstrates that there were two bottles containing diesel fuel, each packed 

inside a plastic bag (i.e., in a receptacle), and then inside an outer package: the fiberboard box. 

By the terms of 49 C.P.R.§ 173.203, the fiberboard box is a necessary component of the 

minimum required HMR outer packaging. Pursuant to 49 C.P.R. § 173.203, the shipped package 

at issue herein therefore consisted of the inner packaging (the bottles inside the plastic bags 

which were a necessary component for the bottles to perform their containment function), their 

hazmat contents (the diesel fuel), and the outer packaging (the fiberboard box). 

Page 9 of 19 
To find that the fiberboard box itself was an overpack requires the assumption that each 

bottle was its own "package" consisting of the bottle (the receptacle) and the diesel fuel it 

contained (its contents). This assumption would also require the trier of fact to ignore the 

definition of packaging provided in 49 C.F.R. § 173.203, which specifically allows for hazardous 

material to be packed inside a fiberboard box. By definition, an overpack might have been used 

to consolidate the fiberboard box with another fiberboard box, but there was no evidence 

adduced to show it was required. 

In addition, the FAA presented no evidence that every single bottle containing diesel fuel 

is required to be packed separately in a fiberboard box, or that two bottles of diesel fuel packed 

together in an inner package, within a fiberboard box, amounted to the use of an overpack. 

The FAA failed to prove this allegation, and it is dismissed. 

7) Violation No. 13 (49 C.F.R. § 175.33(a))(Failure to provide the PIC with written 

information about the hazmat shipment as early as possible prior to departure) 

The FAA proved this violation. 

49 C.F.R. § 175.33(a) requires that when a hazmat, subject to the HMR, is carried aboard 

an aircraft, the Respondent must provide 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) did not 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 

not persuasive. 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, if the carrier violates 

its WNC designation and handles hazmat. 

During the Respondent's defense case at hearing, Mr. Foster emphasized that SGS never 

told him that the material was hazmat. Mr. Foster, the PIC, accepted the package from SGS, 

loaded the package onto the aircraft, and only had knowledge of its 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 or the Respondent of its true contents, diesel fuel, prior to departure. 

Mr. Foster's defense was not persuasive in rebutting the charge. When the Respondent 

accepted the package, it had an affirmative duty to inquire about the contents, and an affirmative 

duty to ensure that the contents of the package were shippable as packaged. See, e.g., In the 

Matter ofScott Novak, FAA-2012-1206 (Decision and Order, January 2, 2014)(The HMR 

"require[s] inquiry and treats a person as possessing whatever knowledge inquiry would have 

produced ... " citing Interstate Chemical Company, Inc.), FAA Order No. 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). 

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8) Violation No. 14 (49 C.F.R. § 175.33(b)) (During flight transport, failure to have 

available for the PIC a written copy ofhazmat notification and ER response information) 

The FAA proved this violation. 

As noted above, 49 C.F.R. § 175.33(a) requires that a copy of the written hazmat 

notification be provided to the PIC. In addition, 49 C.F.R. § 175.33(b) requires that such written 

notification, as well as emergency response information, be maintained and available to the PIC 

during transport of the hazmat shipment. /d. 

It was undisputed that during transport of the hazmat on October 21, 2009, Mr. Foster did 

not have either the written hazmat notification or the emergency response hazmat information. 

Mr. Puntonet explained that it is important for the PIC to have the emergency response 

information available because it directs what action the PIC would need to take in the event of an 

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 that the HMR did not apply to it 

because of its WNC status. (1/29/13 Tr. 279:17-22.) This argument was not persuasive. By 

accepting a hazmat for transportation by air, the Respondent placed itself in a situation where its 

PIC needed this critical information. The Respondent's failure to provide its PIC the hazmat 

information and the emergency response information for the subject flight was a violation of 49 

C.F.R. § 175.33(b). 

C. FAA's Proposed Civil Penalty of $59,600 

In its. September 8, 2011 Complaint, the FAA charged the Respondent with a total of 16 

HMR violations arising from the October 21, 2009 incident. The FAA proposed a total civil 

penalty of$59,600 for all16 violations. At the Summary Judgment Motion Conference on 

December 6, 2012, the FAA confirmed that 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 found that the FAA was 

entitled to judgment as a matter oflaw on five (5) violations,3 which included Violation Nos. 1 

and 2. An additional three (3) violations 4 

were dismissed by the Summary Judgment Order 

because the charged violations did not exist in the regulations. Because of the FAA's December 

6, 2012 confirmation that no penalty was sought on either Violation No. 1 or 2, the civil penalty 

assessed for violations proven by Summary Judgment would involve only 3 of the 5 proven 

v~olations. This left for evidentiary resolution by Hearing the remaining eight (8) violations, 5 as 

well as the total amount of civil penalty for all proven violations (by Summary Judgment 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 19 
At the January 2013 Hearing, the FAA argued during closing that it had proved all 

remaining 8 violations, thus proving a total of 13 violations (i.e., 8 proved at the Hearing, plus 

the 5 proved by Summary Judgment). The FAA then re-recommended the originally proposed 

penalty of $59,600, even though there remained only a potential total of eleven ( 11) violations 

(instead of the originally charged 16 violations) for civil penalty assessment. (Essentially, of the 

alleged 13 violations allegedly proven, the FAA did not seek a penalty Violation No 1 and 2, 

thus leaving a potential total of eleven (11) violations for civil penalty assessment). 

Although Mr. Bulted had been the FAA investigating officer who had prepared the 

original charging documents, and calculated the recommended penalty of$59,600, he did not 

present any testimony about the penalty. Instead, the FAA presented Ms. Pershameron Dye's 

testimony on the proposed civil penalty issue. Ms. Dye had never worked as an FAA field agent, 

and had only recently begun supervisory duties within her department. She explained that the 

recommended civil penalty of$59,600 was based on "the facts that we had in front of us" at the 

time of the investigation, prior to when the Complaint was filed in 2011. 1/30/13 Tr. 473:17-19. 

According to Ms. Dye, the $59,600 proposed penalty was based solely "on the sanction 

sheet" used by the FAA investigators, when all 16 charged violations had been considered. 

1/30/13 Tr. 455:13-16. Ms. Dye also explained that once an FAA investigation recommendation 

for penalty was made, it was the Respondent's burden to provide more facts, so that the proposed 

penalty might get reduced. "That's it. If it is reduced, okay. It's reduced." 1/30/l3 Tr. 455:15-16. 

Ms. Dye never made clear how the FAA could support a continuing request for a $59,600 

civil penalty after the Summary Judgment Order had dismissed 3 of the violations (because of 

non-existent regulations), and after the FAA had confirmed that it was not seeking a penalty on 2 

of the remaining violations. 

Instead, Ms. Dye, who had just been promoted by the FAA to serve as a supervisory 

hazardous materials specialist six months prior to the 2013 hearing, simply explained how the 

FAA had calculated the originally proposed $59,600 penalty prior to filing its 2011 Complaint. 

Based on the Respondent's size, it was deemed to be a Group IV air carrier. (1/30/13 Tr. 410:9.) 

The acceptance and transportation of diesel fuel, a Class 3 hazmat in Packing Group III, carried a 

moderate weight. (1/30/13 Tr. 407:10-18; Ex. C-17 at C-17.) 

Ms. Dye also explained that the FAA had aggravated the moderate weight to maximum, 

and then assessed the Respondent the maximum penalty in each category of violation, because 

the Respondent was designated a WNC carrier and "they should have known better." (1/30/13 

Tr. 410:10-15, 412:2-413:22.) According to Ms. Dye, the only factor the FAA utilized to 

aggravate the proposed penalty from the moderate to maximum range was the Respondent's 

WNC designation. Ms. Dye explained that it was the Respondent's responsibility to try and get 

the penalty reduced from the maximum amounts the FAA had proposed. 

Page 12 of 19 
D. Civil Penalty Analysis and Assessment 

As discussed herein, the FAA has proven a total of 8 of the 16 violations originally 

charged. The eight (8) other violations have been dismissed (i.e., 3 were dismissed as a matter of 

law by Summary Judgment Order, and 5 are dismissed herein as not proven by the evidence). 

Of the 8 proven violations, the FAA previously confirmed that it did not seek any civil 

penalty on 2 of the violations (i.e., Violation Nos. 1 and 2) (12/6/12 Mot. Conf. Tr. 46:13-18.) 

This leaves a total of 6 proven violations for penalty assessment (i.e., Violation Nos. 3, 5, 8, 9, 

13 and 14) instead ofthe originally charged total of 16 violations. 

However, within the 6 remaining proven violations, the violation of 49 C.F .R. § 17 5.3 

(i.e., Violation No. 3) warrants no civil penalty. Section 175.3 is general, introductory language 

prohibiting transportation by air ofhazmat "not prepared for shipment in accordance with this 

subchapter." 49 C.P.R. § 175.3. The Respondent is being assessed a civil penalty for violations 

of the specific regulations contained in the subchapter that result in the violation of Section 

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., Violation Nos. 8 and 

9). See In re Paul A. Carr, FAA Order 98-2 at 14-15 (Mar. 10, 1998) (violations of general, 

introductory sections of the HMRs should not necessarily count as separate violations for 

sanction purposes, when violations of more specific regulatory requirements are proven), 

modified on other grounds by FAA Order 98-8 (May 1, 1998). 

Thus, a total of 5 proven, specific regulatory violations remain for penalty assessment 

(i.e., Violation Nos. 5, 8, 9, 13 and 14). 

Pursuant to 49 U.S.C. § 5123(c) (2006), nine factors must be considered in the 

calculation of a civil penalty for any violations of the HMR: 1) the nature of the violations; 2) 

circumstances surrounding the violations; 3) the extent ofthe violations; 4) the gravity of the 

violations; as well as the Respondent's 5) degree of culpability; 6) history of prior violations; 7) 

ability to pay; 8) ability to continue to do business; and 9) such other matters that justice 

requires. 

The FAA used the Hazardous Material Sanction Guidance Matrix and a related weighting 

analysis to consider the statutory factors when calculating the proposed civil penalty. (Ex. C-17 

at C-2.} Although this guidance is not binding on administrative law judges, it does provide 

valuable assistance in any civil penalty analysis and assessment. 

1) Analysis of the first five factors of 49 U.S.C. § 5123(c) (i.e., the nature of the 

violations; circumstances surrounding the violations; the extent of the violations; the gravity of 

the violations and the Respondent's degree of culpability. 

It was undisputed that in 1982 Mr. Foster started his own company, Respondent herein, 

which operated as a single-pilot commuter airline in the 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 "on demand air carrier" located in St. Croix. (1129/13 Tr. 254:20 and 

Page 13 of 19 
256:1-4.) Mr. Foster is the Respondent's only pilot. The Respondent operates two small 

aircraft, a Cessna 402 and a Cessna 404. These aircraft each have less than 10 passenger seats. 

(1129/13 Tr. 256:5-17.) 

a. The FAA's Argument for Aggravated Finding 

Throughout this case, the FAA has asserted that in accepting hazmat, a WNC carrier 

places itself in 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 and penalty 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 itself was 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 support utilizing the violation itself as an "aggravating" factor to further punish 

the WNC carrier by maximizing the penalty against it. 

In other words, if the hazard class and packing group of the hazmat place the violation in 

the moderate range, the very act of the WNC operator committing the 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 HMR violations 

committed by WNC operators would automatically begin in the maximum range simply by 

virtue of having been committed 

Ms. Dye is correct that "the air carrier is the last defense on [sic] keeping ... improperly 

declared or undeclared hazardous materials out of the 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 of an aggravated finding is not persuasive, and is not 

adopted herein. 

b. Moderate Weight Assigned 

In regard to the first statutory factor, the facts of this case support a moderate weight for 

civil penalty assessment. The nature of the hazmat- Hazard Class 3, Packing Group III- also 

supports a moderate weight in assessing a civil penalty. (1/30/13 Tr. 407:1 0-18.) 

However, the circumstances, extent of the violations, the gravity of the violation, and the 

Respondent's degree of culpability weighs in favor of a penalty at the mid to lower end of the 

moderate range. For example (not inclusive), it was undisputed that SGS prepared the shipment, 

Page 14 of 19 
packed the 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 of the Respondent in its acceptance ofSGS's undeclared.hazmat package, 

or the Respondent's culpability in its failure to independently exercise reasonable inquiry and 

care, it certainly should be considered as part of the circumstances surrounding the violations 

when determining the appropriate penalty. 

It was also undisputed that the Respondent never intended to violate the HMRs, and did 

not deliberately accept or transport hazmat. It was undisputed that most of the shipments the 

Respondent had accepted from SGS over the years had either been "scientific equipment such as 

scales, test tubes, beacons" and other such equipment, or the transportation of SGS personnel on 

passenger flights (1/30/13 Tr. at 517:4-11). The Respondent's 31 year history ofhazmat safety 

compliance supports the Respondent's assertion that the October 21, 2009 incident was an 

isolated and unfortunate mistake that will not be 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 of diesel fuel transported in this case 

(i.e., 2 pints) was more than an excepted or de 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 not remove the culpability of the Respondent in its acceptance of the hazmat - it 

should have exercised reasonable care and refused the package as submitted- it certainly should 

be considered as part of the gravity of the violation in determining the appropriate penalty. 

Overall, the civil penalty category per violation is moderate -but some facts and circumstances 

weigh towards the lower end of the penalty range. 

2) Analysis of the last four factors of 49 U.S.C. § 5123(c) (i.e., the Respondent's history 

of prior violations; 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 not have any history of HMR 

violations. Mr. Foster testified that he had worked approximately 40 years as an airline pilot. He 

trained as a helicopter pilot during Army officer training, and then spent three 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 in the 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 own business. As noted earlier, in 1982 Mr. Foster started his own 

company, Respondent herein, which had operated first as a small commuter airline, and then 

since 2010 as a single-pilot "on demand" airline in the Caribbean (1130/13 Tr. at 525:16-18). 

As an airline pilot, and as the company owner, Mr. Foster took pride in his longitudinal 

history of safety compliance. 

[Mr. Foster] We do it right. We don't take shortcuts and it's paid off in the 35 

years that I've operated down here. I've never had a material failure. I've never 

Page 15 of 19 
had an accident. I've never hurt anybody and that's unusual in the 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 should not be considered as a mitigating factor. The FAA is correct. 

Therefore,. it is not considered herein as a "mitigating" factor. However, the Respondent's 

evidentiary proffer of safety compliance is considered as part of the overall case, as justice 

reqmres. 

The FAA did agree that the Respondent's ability to pay and/or considering any corrective 

action the Respondent had taken could be considered as mitigating. (1/30/13 Tr. 416:11-21.) 

However, the FAA noted that the Respondent had not provided any financial information 

regarding its ability to pay ( 1/30/13 Tr. 417:4 .. 7) nor had the Respondent provided any 

information regarding corrective actions (1/30/13 Tr. 417:8-1 0). 

Upon inquiry by the court, Mr. Foster agreed that the Respondent had not provided any 

financial documentation. (1/30/13 Tr. 559:21-561:21; 563:6-15.) Mr; Foster testified, 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 that he had already paid 

"approximately $2500" to hire a pilot to 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 

of the local oil refinery6 had cut his business profits [unspecified] in half: 

[Mr. Foster] Coastal Air is a small single-pilot airline. As most airlines are in this 

environment down here in the Caribbean, especially in St. Croix with the closing 

of the oil refinery, business has dropped in half. Right now we're paying our bills 

but not much more than that. I don't know what 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 of two (2) years of college 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 of the FAA's proposed fine as being equivalent to college 

tuition was likely accurate, it was not sufficient proof of either the Respondent's actual ability to 

pay or its actual ability to continue to do business. The affi1111;ative defense of financial hardship 

requires a showing by the Respondent of reliable, supporting documentation, such as tax records 

and other company financial data. See In re Atlas Frontiers, LLC, FAA Order No. 2010-10 at 12 

(Jun. 16 2010) (the Respondent bears the burden of proof of financial 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 19 
Mr. Foster also agreed that he had not submitted any evidence of corrective action. 

Instead, he emphasized the Respondent's long years of cooperative partnership with FAA officer 

Mr. Putenot. 

[Mr. Foster] He's been a great person to work with because he'll come over and 

tell you that this is coming out - this needs to be done in the future - this is what 

they want to see and, of course, we sometimes have people come down from 

Florida to inspect us and he'll say, get a grip on this and get out ahead of it and 

he'll tell us this has to be done six months down the road- start it nowand have it 

done, and we do it. And it's just-that's just compliance. 

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. 

It was undisputed that Mr. Putenot was an expert in multiple aviation fields. He had 

worked in the 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 agreed that 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 not personally perform hazmat enforcement, he opined that based on the 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 with Mr. Putenot. While the regulations require that the civil penalty 

amount have a sufficient "bite" or deterrent effect, this does not mean 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 Scott Novak, FAA2012-1206 (Decision and Order, January 2, 2014)(The fine should appropriately reflect the 

sanction guidance, the statutory factors, and the totality of the circumstances). 

It should also be noted that during the FAA's closing argument, the FAA proposed, 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 limited to the 5 violations actually proven and subject to penalty assessment 

herein. 

3. Assessment of Civil Penalty- Total $16,500: 

Based on the foregoing, this court assesses a total civil penalty of $16,500 as follows: 

Page 17 of 19 
a. Violation Nos. 1 and 2 (49 e.F.R. §§ 171.2(a) and (b))- No Penalty. These proved 

violations, charged under the general hazmat regulations, demonstrated that the Respondent had 

improperly accepted a hazmat package for transport. (12/28/12 Summary Judgment Order). The 

FAA sought no civil penalty for these two general violations of 49 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. Violation No.3 (49 e.F.R. § 175.3)- No Penalty. As noted earlier herein, this proved 

violation warrants no civil penalty. Like Violation Nos. 1 and 2, Violation No. 3 was charged 

under general, introductory language prohibiting transportation by air of hazmat "not prepared 

·for shipment in accordance with this subchapter." 49 e.F.R. § 175.3. In the case herein, the 

Respondent is already being assessed a civil penalty for proven violations of the specific 

regulations (i.e., Violation Nos. 8 and 9). 

c. Violation No.5 (49 e.F.R. § 175.20)- $5,500 Penalty. This proved violation 

demonstrated that the Respondent failed to provide we hazmat training to its employees. (Id.; 

1/30/13 Tr. 413:8-12.) It was undisputed that the Respondent had no intention of serving as a 

we carrier, and thus had not provided We hazmat training to any employee. After 31 years of 

doing business, this was the Respondent's first hazmat offense. Although Mr. Putenot 

recommended that the Respondent update its current hazmat training so it could be more 

successful in recognizing and declining potential hazmat in the future, he did not assert that the 

Respondent had been in violation of any WNe training requirements prior to this incident. 

According to the sanction guidance, the civil penalty range for this violation is $5,000-

$16,200 (Hr'g Ex. e-17 at e-13.). Basic mathematical calculations show that the mean in the 

range is $10,600. Thus, a fine in the minimum range would be approximately between $5,000-

$8,733.33, in the moderate range $8,733.34-$12,466.67, and in the maximum range 

$12,466.68-$16,200. In its closing argument, the FAA alternatively recommended a fine of 

$9,350 (instead of the maximum of $16,200) for this violation. (1130/13 Tr. 590: 1-7). Given all 

the facts and circumstances in this 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, without proper hazmat 

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 show that the mean is $9,350. Thus, a fine in the minimum range 

would be approximately between $2,500-$7,066.66, in the 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 of the range) 

for these two violations. Given all the facts and circumstances in this case, the fine imposed is 

$8,500. 

e. Violation Nos. 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 19 
Hr'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 P AA 

alternatively recommended a fine of$3,250 (i.e., the mathematical mean of the range) for these 

two violations. Given all the facts and circumstances in this case, the fine imposed is $2,500. 

Based on the 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 of the circumstances. 

Pursuant to 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 of appeal within 10 days of service of this 

Initial Decision pursuant to 14 C.P.R. § 13.233. 

IVan 

· strative Law Judge 

Attachment: Service List 

Page 19 of 19 
FDMS 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 2W1 0001 

Ms. Rashawn Rich George, Esq. 

Complainant's Counsel 

Office of the Regional Counsel, AS0-7 

Southern Region 

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 of Transportation 

1200 New Jersey 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 in person 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.