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## UNITED STATES OF AMERICA **DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS** 

**_________________________ :**  **IN THE MATTER OF: : : FDMS No.**  **TRANS TIME EXPRESS : FAA-2012-1260 :**  **Respondent : _________________________:** 

**Wednesday, October 26, 2016** 

**The teleconference convened, pursuant to notice, at 2:00 p.m.** 

**BEFORE:**

**THE HONORABLE RONNIE A. YODER, Administrative Law Judge** 

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## APPEARANCES: **On Behalf of the Respondent: CAMERON NIAKAN, ESQ.**  **10101 Grosvenor Place Suite #620**  **Rockville, MD 20852 (202) 276-4726**  **cn@Niakanlaw.com**

**On Behalf of the Complainant:**

**ANDREW LAMBERT, ESQ. Enforcement Division, AGC-300**  **Department of Transportation Office of the Chief Counsel, FAA**  **800 Independence Ave, S.W. Washington, D.C. 20591**  **(202) 267-3357**

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## 1 P-R-O-C-E-E-D-I-N-G-S **2 (2:06 p.m.) 3 JUDGE YODER: This is a pre-hearing**  **4 conference in the matter of Trans Time Express, 5 Docket Number FAA-2012-1260. And on the phone we**  **6 have Mr. Lambert for Complainant, and Mr. Niakan 7 for Respondent and we have a court reporter who**  **8 will transcribe the proceeding. 9 Gentlemen, do you want to enter your**  **10 appearances? First, for Complainant. 11 MR. LAMBERT: Yes, Your Honor. This** **12 is Andrew Lambert. That's A-N-D-R-E-W, L-A-M-B 13 E-R-T, on behalf of the Complainant, the**  **14 Administrator, and the FAA. 15 JUDGE YODER: Excuse me. I understood**  **16 what you just said but you don't really think 17 that you appear on behalf of the Administrator,**  **18 do you? 19 MR. LAMBERT: I'm sorry. Did I**  **20 misspeak, Your Honor? 21 JUDGE YODER: You said that you were**  **22 appearing on behalf of the Administrator of the**

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## 1 FAA. **2 MR. LAMBERT: I'm sorry. I'm -- 3 JUDGE YODER: If anyone can appear on**  **4 behalf of the Administrator, it is I. 5 MR. LAMBERT: On the, I'm here on**  **6 behalf of the Complainant, Your Honor. 7 JUDGE YODER: Okay. That's of course**  **8 with the Division Office of Chief Counsel? 9 MR. LAMBERT: Yes, Your Honor.**  **10 JUDGE YODER: Yes, okay. It's perhaps 11 not known to everybody, but it's quite**  **12 understandable that FAA counsel from time to time 13 is confused about precisely whom they represent**  **14 because in many such enforcement cases they do in 15 fact represent the Administrator. Not before us**  **16 but when they're at NTSB they represent the 17 Administrator.**  **18 So it's a confusing situation but in 19 any event, Mr. Lambert does not represent the**  **20 Administrator in this case. Indeed it would be 21 improper for him to do so because that's the**  **22 reviewing authority.**

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## 1 MR. NIAKAN: Well, that's a relief, **2 Your Honor. Your Honor, my name is Cameron 3 Niakan. I represent Trans Time Express in this**  **4 matter. 5 JUDGE YODER: All right, fine. Thank**  **6 you. There used to be a provision in the rules 7 that I had to determine the amount of time in**  **8 which the transcript should be provided. I'm not 9 sure whether that's still in the rule or not. Do**  **10 you know, Mr. Lambert? 11 MR. LAMBERT: I'm not aware of such a**  **12 rule. 13 JUDGE YODER: Well, in any event I'll**  **14 determine the 15 day transcript is necessary and 15 required for the proper conduct of the**  **16 proceeding. 17 A copy of the transcript automatically**  **18 goes to Complainant's counsel and to dockets. 19 Mr. Niakan, if you want a copy of the transcript,**  **20 you need to order that from the reporter or you 21 can obtain a copy from the docket at**  **22 regulations.gov when it's posted.**

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## 1 It's never entirely clear when it will **2 get posted because sometimes there is a delay 3 between the receipt of the transcript here and**  **4 its actual posting which I gather occurs after 5 it's transferred from the FAA docket to the DOT**  **6 docket section, and from there to 7 regulations.gov.**  **8 Now Mr. Lambert, I don't know if you 9 can do anything about expediting that process or**  **10 assuring that the transcript actually gets into 11 regulations.gov.**  **12 Is that something that you can pursue 13 with your docket section?**  **14 MR. LAMBERT: I can certainly walk 15 over there and ask them about it but I've never**  **16 had any personal involvement with getting 17 anything put onto regulations.**  **18 JUDGE YODER: Yes. I know it should 19 be automatic but it, in our experience of late it**  **20 has often been somewhat less than automatic. 21 So I just mention that, Mr. Niakan,**  **22 because it could result in a delay in your**

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## 1 getting it if you wait to try to get it from the **2 public docket. 3 MR. NIAKAN: Yes, Your Honor. My**  **4 question would be, do you have to pay for this if 5 you get it?**  **6 JUDGE YODER: If you order it from the 7 reporter they normally require that you pay them,**  **8 yes. 9 MR. NIAKAN: But we can --**  **10 JUDGE YODER: And that's a per page 11 charge.**  **12 MR. NIAKAN: Right, right. But -- 13 JUDGE YODER: I don't know what the**  **14 charge is. You'd have to talk with them about 15 that.**  **16 MR. NIAKAN: I see. If you get it 17 from the website it would be --**  **18 JUDGE YODER: To get it from the 19 website you just download it.**  **20 MR. NIAKAN: We just, we don't have to 21 pay for it.**  **22 JUDGE YODER: Right.**

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## 1 MR. NIAKAN: Okay. That's good. I'm **2 going to get the court reporter's name and 3 information if --**  **4 JUDGE YODER: Yes. 5 MR. NIAKAN: -- you don't mind, at the**  **6 end so I'll get a copy. 7 JUDGE YODER: Okay. All right. Let**  **8 me see. 9 MR. NIAKAN: One of these cases**  **10 expired in 2011, I believe. 11 JUDGE YODER: I'm sorry?**  **12 MR. NIAKAN: This case goes back to 13 2011.**  **14 JUDGE YODER: I think that's correct. 15 Yes. Now the motions to correct the transcript**  **16 are supposed to be filed within 30 days after the 17 pre-hearing conference. So if you don't get a**  **18 transcript within that time then you will need to 19 apply for additional time.**  **20 MR. NIAKAN: Yes. 21 JUDGE YODER: Okay. Now this**  **22 proceeding arises from a Notice of Civil Penalty,**

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## 1 served November 7, 2012, and then a Request for a **2 Hearing November 18, 2012, and a complaint 3 December 10, 2012.**  **4 The complaint alleges violations of 5 various regulations because of a hazardous**  **6 material shipment which didn't comply allegedly 7 with labeling and packaging and other**  **8 requirements for sending hazardous materials by 9 air. And it seeks a civil penalty in the amount**  **10 of $33,950. 11 Mr. Lambert, I know that there are 22**  **12 regulations allegedly involved, but can you tell 13 me how many alleged violations there are on what**  **14 you calculated this proposed penalty? 15 MR. LAMBERT: I believe when using the**  **16 Sanction Guidelines there were six sort of core 17 categories of violations, and that the 22 or**  **18 however many individual ones fall within those 19 six.**  **20 JUDGE YODER: Well, I trust you will 21 appreciate that we're going to need more**  **22 specificity than that?**

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## 1 MR. LAMBERT: Oh, sure. I wasn't **2 sure. 3 JUDGE YODER: You said six general**  **4 reg, six general categories, but how many 5 individual violations, do you know?**  **6 MR. LAMBERT: I'm sorry, Your Honor, 7 I'm a little confused on, how many violations?**  **8 JUDGE YODER: Yes, sir. The penalties 9 are normally assessed for individual violations.**  **10 The question is, how many violations are you 11 seeking a penalty for?**  **12 MR. LAMBERT: I'm trying to get there 13 in my materials. There shipment itself failed**  **14 under the first violation being the -- 15 JUDGE YODER: Well, that's all right.**  **16 I don't want you to try to make this up as we go 17 along. You're going to need to submit something**  **18 that identifies the number of violations you're 19 seeking penalties for, and what penalty you're**  **20 seeking for them, and how the penalty that you've 21 proposed to collect has been calculated.**  **22 MR. LAMBERT: Yes, Your Honor, I know**

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## 1 I've seen that material so I'm just trying to **2 locate it here in this stack. 3 JUDGE YODER: Right. Well, if you**  **4 come up with it as we go along, we have to have 5 you provide it now. Failing that you'll need to**  **6 provide it after the pre-hearing. 7 MR. LAMBERT: Of course, Your Honor.**  **8 JUDGE YODER: Now this involved 9 allegedly ten 22 ounce bottles of Master Jack**  **10 drain opener. And I see in the complaint that 11 it's alleged that this is basically sulfuric**  **12 acid. Is that your contention? 13 MR. NIAKAN: I will know the chemicals**  **14 -- 15 JUDGE YODER: Oh, no, no. I'm asking**  **16 the Complainant. 17 MR. LAMBERT: Oh, according to the**  **18 MSDS, the safety data sheet, I'm no chemist, Your 19 Honor, but I believe it's something along those**  **20 lines. 21 JUDGE YODER: Well, something along**  **22 those lines isn't going to get us very far down**

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## 1 the road. As a matter of fact, there are two **2 references in the DB-MSDS drain, in that document 3 that refers to it as sodium hypochlorite.**  **4 I don't know that there's any 5 confusion there but it seems those documents were**  **6 generated by FedEx. And I think sodium hydroxide 7 is, hypochlorite, is also a hazardous material.**  **8 But I just want you to be aware of the fact that 9 I received documents which pointed two different**  **10 directions on precisely what it was. 11 MR. LAMBERT: Yes, Your Honor. I'm**  **12 sorry. I was referring to the material safety 13 data sheet provided by the manufacturer and it**  **14 does point to sulfuric acid. 15 I'm not remembering the other chemical**  **16 that you just referred to but I'll have to refer 17 to that. But I am seeing the sulfuric acid.**  **18 JUDGE YODER: Well, those references 19 to sodium hypochlorite are in the incident report**  **20 of ISPA (phonetic). I don't know who filled that 21 out. It might have been FedEx but I'm not sure.**  **22 In any event that was one of the documents you**

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## 1 sent me. **2 And then there is one by FedEx which 3 is titled, Undeclared Dangerous Goods Shipment**  **4 Notification. And that one also refers to sodium 5 hypochlorite, okay?**  **6 MR. LAMBERT: Yes, Your Honor. 7 JUDGE YODER: All right. So that's**  **8 something you'll want to sort out. 9 Then let's see, when the complaint was**  **10 first served there was an answer filed denying a 11 good many of the allegations and in particular,**  **12 denying knowledge or information sufficient to 13 answer some of the allegations.**  **14 Later there were admissions filed in 15 response to request for admissions. And I wanted**  **16 to get some clarification as to what the parties 17 feel is still at issue in this case. Mr. Niakan?**  **18 MR. NIAKAN: Yes? 19 JUDGE YODER: Can you tell me which of**  **20 these allegations are still in dispute as far as 21 you know?**  **22 MR. NIAKAN: Your Honor, this delivery**

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## 1 was done by a driver who no longer is employed by **2 my client. So some of these -- 3 JUDGE YODER: I got that from the**  **4 papers. That's not what I asked. Do you know 5 which of these allegations in the complaint are**  **6 still in dispute? 7 MR. NIAKAN: I do not, Your Honor, on**  **8 this. 9 JUDGE YODER: Well, are you familiar**  **10 with the request for admissions and the answer to 11 those requests?**  **12 MR. NIAKAN: I do have it in a stack 13 of papers in front of me, Your Honor. I'm just**  **14 going to try to get to the issue at hand. 15 JUDGE YODER: Well, let me see. Mr.**  **16 Lambert, do you have an answer to that question? 17 MR. LAMBERT: Your Honor, as far as I**  **18 can tell, I'm not sure how many of the material 19 facts are on dispute.**  **20 I appreciate that the driver no longer 21 works for the Respondent and that the Respondent**  **22 does not typically ship hazardous materials. I**

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## 1 mean, I appreciate those facts but as far as the **2 complaint and the subject facts go, I'm not sure 3 which ones are still in dispute.**  **4 Perhaps maybe just the amount of the 5 penalty which, I am still looking for the**  **6 calculation of which but directly to your 7 question, no, Your Honor. I'm not sure what the**  **8 Respondent is still denying given their 9 admissions to their requests.**  **10 JUDGE YODER: Well, it strikes me that 11 that's something that both of you should want to**  **12 know. Otherwise, you aren't going to know what 13 we're going to try if there's a hearing.**  **14 MR. NIAKAN: That's a great idea, Your 15 Honor.**  **16 JUDGE YODER: Was it your intention to 17 go into a hearing without knowing what was in**  **18 dispute? 19 MR. NIAKAN: No.**  **20 JUDGE YODER: At each of you. Well, 21 the whole purpose of this is to narrow the**  **22 issues, find out what is in dispute and see**

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## 1 whether the case can be settled or whether it **2 needs to go to a hearing. 3 And what I'm hearing told now is that**  **4 neither of you know what's in dispute. Let me 5 see if I can elicit some responses.**  **6 I know that at one point Respondent 7 indicated that it did not knowingly ship**  **8 hazardous materials. Do you know whether that's 9 still your contention?**  **10 MR. NIAKAN: I believe that's our 11 contention, Your Honor.**  **12 JUDGE YODER: Well, do you deny that 13 what you shipped was a hazardous material?**  **14 MR. NIAKAN: We probably won't deny 15 that.**  **16 JUDGE YODER: Do you deny that you 17 knew that what you were shipping was what you**  **18 were shipping? You knew what you were shipping, 19 is that right?**  **20 MR. NIAKAN: They knew what they were, 21 the driver did know what he was shipping.**  **22 Whether the driver knew that this was, falls**

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## 1 under hazardous materials is not. **2 JUDGE YODER: Now that's a question of 3 law that really doesn't matter. Knowingly, means**  **4 that you shipped something and you knew what you 5 were shipping.**  **6 It does not mean that you knew the 400 7 pages identifying all the hazardous materials**  **8 there are or that what you were shipping was 9 within their regulations.**  **10 It requires that you knew that you 11 were shipping what you were shipping.**  **12 MR. NIAKAN: Well -- 13 JUDGE YODER: And if you knew that**  **14 then you knowingly shipped hazardous materials. 15 MR. NIAKAN: I can't speak for the**  **16 driver, Your Honor, but my -- 17 JUDGE YODER: I'm not talking about**  **18 the driver, I'm talking about the Respondent, 19 generally. If the Respondent knew what it was**  **20 shipping then he knowingly shipped it. 21 MR. NIAKAN: Your Honor, the**  **22 Respondent in this case is my client who is the**

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## 1 manager of this company. So she would have came **2 across this material. The driver -- 3 JUDGE YODER: It's the company that is**  **4 the Respondent, not your manager. 5 MR. NIAKAN: Right.**  **6 JUDGE YODER: And the company is 7 liable if we find that it's liable.**  **8 MR. NIAKAN: Correct. 9 JUDGE YODER: Okay.**  **10 MR. NIAKAN: But so your question is, 11 did the company know that --**  **12 JUDGE YODER: No, that's not the 13 question. My question is, are you contending**  **14 that you did not knowingly ship hazardous 15 materials.**  **16 And if you are, that's a question of 17 law and you're going to wind up filing a brief**  **18 with me supporting the contention that even 19 though you knew what it was and you knew you were**  **20 shipping, that it wasn't knowingly shipped. 21 And if you want to brief that you**  **22 might well look at William A. Luker, FAA Docket**

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## 1 Number CP09SW0008, an order which I issued in **2 2010 which says, the statute requires that the 3 alleged violator must have known the facts giving**  **4 lies to the violation. Knowledge of the law is 5 unnecessary and alleged violators are liable even**  **6 if they did not know they were breaking the law. 7 That's what I said in 2010.**  **8 MR. NIAKAN: Your Honor, would you 9 remind repeating the Case Number? CP0 --**  **10 JUDGE YODER: CP09SW0008. It's got an 11 FDS number, and FDNS number. So you should be** **12 able to get it off with that number which is FAA 13 2009-1044.**  **14 MR. NIAKAN: Yes. 15 JUDGE YODER: The two other cases were**  **16 the same proposition. There's Riverdale Mills 17 Corp, which is FAA Order Number 2003-10 at 5,**  **18 that was September 12, 2003. 19 And that one cites Scott H. Smalling,**  **20 S-M-A-L-L-I-N-G, which is FAA Order Number 1994- 21 31 at 7, October 5, 1994. Okay?**  **22 MR. NIAKAN: Yes, Your Honor.**

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## 1 JUDGE YODER: I just don't want to see **2 us making wrong assumptions about what's at issue 3 here. And if you think this case is about**  **4 whether your manager knew what was happening, 5 that's not the issue.**  **6 And if you think, your question is 7 whether your company knew that sulfuric acid was**  **8 a hazardous material. That is not the issue 9 here. Are you understanding me?**  **10 MR. NIAKAN: Yes, Your Honor. 11 JUDGE YODER: The issue is whether you**  **12 in fact sent sulfuric acid in a package through 13 the air and I don't think that's really an issue.**  **14 You did that. DR. FOROUD: So unless you're going 15 to come up with some theory I've never seen, then**  **16 I don't think that's the issue in this case. Are 17 you following me?**  **18 MR. NIAKAN: Yes, I am, Your Honor. 19 Your Honor, we have been in negotiation with Mr.**  **20 Lambert regarding coming up with an agreement to 21 settle this case.**  **22 JUDGE YODER: Well, that would be**

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## 1 definitely a good idea and I saw words to that **2 effect in a letter dated January 22, 2013. 3 That's kind of slow negotiating.**  **4 MR. NIAKAN: Well, we just picked up 5 where we left off.**  **6 JUDGE YODER: Yes, I'm sure you did 7 but there's no point in negotiating about**  **8 something when you don't what is at issue. Do 9 you understand what I'm saying?**  **10 MR. NIAKAN: Yes, Your Honor. 11 JUDGE YODER: Yes, okay. And that's**  **12 true on both sides, not just on your side. So 13 let's move into the next question I had about**  **14 what is at issue. And that has to do with the 15 training.**  **16 There was an allegation that you did 17 not provide training concerning the proper**  **18 handling of hazardous materials. And your answer 19 and subsequently your response to request for**  **20 admissions stated that you didn't know. Well, 21 you did or you didn't. Is that still your**  **22 position?**

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## 1 MR. NIAKAN: There was some training **2 provided, Your Honor, as far as I know. And they 3 added some since this incident happened.**  **4 JUDGE YODER: Well, we're talking 5 about at the time of the incident. Was there**  **6 training with respect to hazardous materials of 7 the type that's specified in the complaint?**  **8 MR. NIAKAN: My understanding is, Your 9 Honor, that there was some training. I'm not**  **10 sure what kind of training and how comprehensive 11 it was but there was some training.**  **12 JUDGE YODER: Okay. If this case is 13 not settled I want you to provide a statement as**  **14 to what that training was. 15 And what you need to do is find that**  **16 out and discuss it with the Complainant to see 17 whether that is going to wind up being an issue.**  **18 If it is not an issue then we don't 19 need to worry about it.**  **20 MR. NIAKAN: I see. 21 JUDGE YODER: Do you understand what**  **22 I'm saying?**

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## 1 MR. NIAKAN: Yes, Your Honor. **2 JUDGE YODER: All right. Do you have 3 any information, Mr. Lambert, as to whether in**  **4 fact there was any training? 5 MR. LAMBERT: No, Your Honor. There**  **6 are the only requests for admission that were 7 neither admitted nor denied.**  **8 JUDGE YODER: Yes, I know. 9 MR. LAMBERT: The only further**  **10 information I've gotten from is just about their 11 after the fact remedial measures.**  **12 JUDGE YODER: Right. Can you tell me 13 how you would propose to prove that someone has**  **14 not done training? How do you prove this 15 negative?**  **16 MR. LAMBERT: I believe we would plan 17 to talk to -- I don't know how to pronounce the**  **18 name. But the manager at the time for Trans Time 19 Express. He was the one who certified those**  **20 responses to the request for admissions. 21 JUDGE YODER: Yes.**  **22 MR. LAMBERT: And establish the lack**

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## 1 of adequate training. **2 JUDGE YODER: Well, you mean you would 3 depend on him to testify that there wasn't**  **4 training to prove your case? 5 MR. LAMBERT: I believe we also**  **6 requested that information in other discovery and 7 the notice of investigation as well as, I believe**  **8 some interrogatories to which no satisfactory 9 responses were given.**  **10 So between those answers and the 11 testimony and the lack of any other evidence,**  **12 yes, Your Honor. 13**  **14 JUDGE YODER: Well, let me see if we 15 can try to put some of that in a legal context,**  **16 Mr. Lambert. You understand that it's your 17 burden of proof to prove these alleged**  **18 violations? 19 MR. LAMBERT: Yes, Your Honor.**  **20 JUDGE YODER: Are you suggesting that 21 there is a burden on the Respondent to come**  **22 forward with evidence on this subject, even**

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## 1 though it's your burden of proof? **2 MR. LAMBERT: Only when asked if 3 through discovery but not a trial, Your Honor,**  **4 but I believe we explored that through written 5 discovery and we hadn't received anything**  **6 satisfactory so that would take away that 7 allegation.**  **8 JUDGE YODER: Unless you have a legal 9 basis for turning that into evidence against the**  **10 Respondent, you still don't prove anything. Do 11 you understand what I'm saying?**  **12 MR. LAMBERT: Yes, Your Honor. 13 JUDGE YODER: So you would need to**  **14 present argument that in the absence of their 15 providing evidence they have failed to come**  **16 forward with the evidence with respect to 17 training and consequently the burden of proof is**  **18 satisfied because they failed in their burden to 19 come forward with evidence. Are you**  **20 understanding what I'm saying? 21 MR. LAMBERT: Yes, Your Honor.**  **22 JUDGE YODER: Okay. You didn't say**

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## 1 that. So if it goes to hearing you're going to **2 need to present a brief on that subject. Do you 3 understand?**  **4 MR. LAMBERT: Yes, Your Honor. 5 JUDGE YODER: Because what you have**  **6 told me is that you're going to try to prove they 7 didn't have training and get their people to**  **8 testify that they didn't have training. 9 You don't really know whether you're**  **10 going to be able to do that or not. So the only 11 way you're going to prove this is by creating a**  **12 presumption in the face of their failure to come 13 forward with evidence.**  **14 And if you're going to ask for such a 15 presumption then you're going to have to justify**  **16 that legally. 17 MR. LAMBERT: Yes, Your Honor.**  **18 JUDGE YODER: Are you with me? 19 MR. LAMBERT: Yes, Your Honor.**  **20 JUDGE YODER: All right. Now Mr. 21 Niakan, did you understand what that was all**  **22 about?**

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## 1 MR. NIAKAN: I did, Your Honor, I did. **2 JUDGE YODER: Well, that's good. 3 Okay. So we don't really know where we are on**  **4 the training issue except that their people who 5 might know something about it don't seem to be**  **6 around any longer, at least the allegation is 7 they aren't around any longer.**  **8 So those are things that you folks 9 should take into account in discussing the**  **10 possibility of settling this case. 11 Now the next thing we need to take,**  **12 you need to take into account is how many 13 violations there are.**  **14 And the fact that there are 22 15 regulations doesn't necessarily mean that that**  **16 gives rise to 22 violations. And based on what 17 you've said so far, I can't tell how many**  **18 violations you're alleging. 19 For instance, in I think it's**  **20 Paragraph 21(m), there's a reference to, this is 21 in the response to, the request for admissions.**  **22 There's an alleged violation with respect to**

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## 1 ensuring each hazmat employee trained in **2 accordance with the requirements in Subpart 172. 3 And that's asserted as a violation for not**  **4 ensuring that. 5 But then there's a separate one**  **6 ensuring that each hazmat employee trained in 7 accordance with the requirements of the HMRs, and**  **8 that each officer, agency, and employee having 9 any responsibility for preparing hazardous**  **10 materials for shipment had been instructed as to 11 handle HMRs.**  **12 Mr. Lambert, maybe you can tell me 13 whether that is one violation or two?**  **14 MR. LAMBERT: That would be one 15 violation, sir. That would fall under the**  **16 violation of improper training, just generally. 17 JUDGE YODER: Okay. It's set out as**  **18 if it were two different ones and the second one 19 of those would seem to be inclusive of everything**  **20 in the first one of those. Do you understand 21 what I'm saying?**  **22 MR. LAMBERT: Yes, Your Honor. A lot**

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## 1 of -- **2 JUDGE YODER: So until you can come up 3 with the number of violations you're claiming and**  **4 what those violations are, there's no way anybody 5 can look at the propriety of your proposed**  **6 penalty. 7 MR. LAMBERT: Yes, Your Honor. I**  **8 mean, I know that there are seven violations 9 based on the Sanction Guidance Table. I see the**  **10 numbers in terms of the amount per violation and 11 I know that there are seven. I'm just not**  **12 certain of the exact title to give these 13 violations so I don't want to mislead the court**  **14 reporter. 15 JUDGE YODER: You cannot be surprised**  **16 to learn that that's why we have pre-hearing 17 conferences.**  **18 MR. LAMBERT: Sure. 19 JUDGE YODER: To discuss precisely** **20 that and we expect people to come to the pre 21 hearing conferences knowledgeable of the facts of**  **22 the law and prepared to discuss them.**

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## 1 So what we've got here is a situation **2 where the only, what you've described as the only 3 issue to the level of penalty, we're going to be**  **4 hard pressed to discuss because you don't know 5 what violations you're alleging. Do you**  **6 understand what I'm saying? 7 MR. LAMBERT: I understand, sir. I**  **8 don't, there are seven categories. For instance 9 the improper labeling, packaging, marking,**  **10 failure to include -- 11 JUDGE YODER: No, that's all very**  **12 interesting but you've got to tie that into 13 specific regulations and specific alleged**  **14 violations or you don't get anywhere. Do you 15 understand what I'm saying?**  **16 You can't just say you improperly 17 shipped this, you improperly labeled it and so**  **18 I'm going to assess seven violations in the 19 amount of, what is it, $33,000.00?**  **20 MR. LAMBERT: 33,950, yes, Your Honor. 21 JUDGE YODER: Yes. Do you understand**  **22 what I'm saying?**

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## 1 MR. LAMBERT: Yes, Your Honor. **2 JUDGE YODER: So when we get through 3 here today, assuming we don't get this**  **4 straightened out before we finish today, you're 5 going to be needing to file with me something**  **6 demonstrating the number of violations you're 7 alleging and the penalty you're alleging for each**  **8 alleged violation. 9 And those violations are going to be**  **10 need to be tied to a specific regulatory basis, a 11 specific regulation, not just as something in the**  **12 complaint. Do you understand what I'm saying? 13 MR. LAMBERT: Yes, Your Honor.**  **14 JUDGE YODER: It of course will have 15 to be in the complaint but the violation will**  **16 have to be tied to regulations. 17 All right. Let's see where we are**  **18 now. Now, Mr. Niakan, have you given any 19 consideration as to whether Trans Time is a small**  **20 entity under the Small Business Regulatory 21 Enforcement Fairness Act?**  **22 MR. NIAKAN: No, Your Honor.**

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## 1 JUDGE YODER: Do you know what that **2 act is? 3 MR. NIAKAN: No.**  **4 JUDGE YODER: Mr. Lambert, have you 5 considered that question?**  **6 MR. LAMBERT: I'm sorry, Your Honor, 7 I didn't quite hear you. The Small Business**  **8 Regulatory Act? 9 JUDGE YODER: Enforcement Fairness**  **10 Act, yes. 11 MR. LAMBERT: Is that the one that**  **12 sets up the guidance for the amount of sanctions 13 for a small business compared to a large business**  **14 conservative? 15 JUDGE YODER: Yes, sir.**  **16 MR. LAMBERT: That's, I hadn't 17 considered that for this case except for when**  **18 looking at 2350 3(b) and in determining the 19 sanction amount.**  **20 JUDGE YODER: Well, I'm sorry. Are 21 you saying that under the regulation you cited**  **22 you did consider the question of whether it was a**

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## 1 small business? **2 MR. LAMBERT: I think, I'm not sure, 3 Your Honor.**  **4 JUDGE YODER: Mr. Niakan? 5 MR. NIAKAN: Yes, Your Honor?**  **6 JUDGE YODER: Do you know whether the 7 gross receipts of this company equal or exceed**  **8 $750,000 a year? Annual receipts. Do you know 9 whether the annual receipts amount to $750,000?**  **10 MR. NIAKAN: I'm not sure, Your Honor. 11 It sounds like it could be in that area but I'm**  **12 not sure. 13 JUDGE YODER: Well, I don't know how**  **14 you could negotiate a penalty without knowing 15 whether you're a small business and consequently**  **16 entitled to the diminished penalty levels that 17 accrue to small businesses. Do you understand**  **18 what I'm saying? 19 MR. NIAKAN: Yes, Your Honor.**  **20 JUDGE YODER: So having been 21 discussing this at least since 2013, those**  **22 discussions might not be able to get very far**

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## 1 unless both of you know whether you're a small **2 business or not. 3 So when we get through here today,**  **4 another one of your assignments is going to be to 5 file something with me indicating whether or not**  **6 you are a small business under the Small Business**
**7 -- 8 MR. NIAKAN: Enforcement Fairness Act,**  **9 correct? 10 JUDGE YODER: Okay. Good.**  **11 MR. NIAKAN: Your Honor, my question 12 would be at the time or today?**  **13 JUDGE YODER: No, not today. We're 14 going to set a time within which you will do**  **15 these various things. 16 First we're going to give you a chance**  **17 to settle this case. 18 MR. NIAKAN: Yes.**  **19 JUDGE YODER: So you can get out from 20 under of this case and what's going to be a**  **21 costly process just to resolve these issues. Do 22 you understand what I'm saying?** 

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## 1 MR. NIAKAN: Yes, Your Honor. **2 JUDGE YODER: Okay. So we'll get 3 there when we're finished here.**  **4 So the fact is that no one, well, 5 let's see.**  **6 MR. NIAKAN: Your Honor, may I ask -- 7 JUDGE YODER: Mr. Lambert, you said**  **8 you didn't know whether they had given 9 consideration to the small business aspects of**  **10 this when they set up the penalties, is that 11 correct?**  **12 MR. LAMBERT: I mean, I meant I 13 haven't personally, Your Honor.**  **14 JUDGE YODER: Well, you're the only 15 person who's appearing here on behalf of the**  **16 Complainant. 17 MR. LAMBERT: Yes, Your Honor. I**  **18 hadn't, but yes, Your Honor, I had not considered 19 that act specifically in this case.**  **20 JUDGE YODER: Yes, well that would be 21 a good idea. So then the next question is, Mr.**  **22 Niakan, have you raised the question of your**

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## 1 company's ability to pay this penalty as part of **2 the proceeding? 3 MR. NIAKAN: No, Your Honor, not yet.**  **4 JUDGE YODER: Well, the question is, 5 are you asserting a question of ability to pay in**  **6 connection with this penalty? 7 MR. NIAKAN: We reserve that right,**  **8 Your Honor. 9 JUDGE YODER: I know you have that**  **10 right but you -- 11 MR. NIAKAN: I'm reserving it. I need**  **12 to talk to my -- 13 JUDGE YODER: As you exercise that**  **14 right, is you provide financial information to a 15 Complainant that demonstrates your financial**  **16 posture, that is, balance sheets, tax returns, 17 whatever they need. There's a Justice Department**  **18 Guideline on this. Are you familiar with that, 19 Mr. Lambert?**  **20 MR. LAMBERT: The Department of 21 Justice Guideline on --**  **22 JUDGE YODER: Ability to pay.**

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## 1 MR. LAMBERT: Yes, Your Honor. And **2 that issue, that defense or that aspect has never 3 been raised to us to either any answer on any**  **4 discovery or -- 5 JUDGE YODER: Well, it's raised**  **6 automatically by the regulations which require 7 that we consider it. And so we have to consider**  **8 it unless Mr. Niakan tells us that he doesn't 9 want to raise the question.**  **10 One of the things we have to consider 11 in deciding the level of penalty is the ability**  **12 to pay and whether it might force the company out 13 of business. Are you familiar with that, Mr.**  **14 Niakan? 15 MR. NIAKAN: Not as much as I should**  **16 be, Your Honor. 17 JUDGE YODER: I think that's correct.**  **18 MR. NIAKAN: Your Honor, may I ask you 19 something about the clarifications for the Small**  **20 Business Regulatory Enforcement Fairness Act? 21 JUDGE YODER: You can ask me but I'm**  **22 not here to practice law.**

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## 1 MR. NIAKAN: You said the -- **2 JUDGE YODER: You're the one who's 3 practicing law. I'm just raising questions.**  **4 MR. NIAKAN: My question was, the 5 numbers must include them at the time or is it**  **6 today, $750,000? 7 JUDGE YODER: Well, I'm not sure that**  **8 I want to tell you what the law is because that's 9 what you're supposed to do.**  **10 MR. NIAKAN: Yes, Your Honor. 11 JUDGE YODER: You tell me what the law**  **12 is and then we decide whether we agree or not. 13 MR. NIAKAN: Yes, Your Honor.**  **14 JUDGE YODER: Do you understand? 15 MR. NIAKAN: Yes, Your Honor.**  **16 JUDGE YODER: The fact is that the 17 violation speaks at the time it's committed and**  **18 is generally subject to the law that applied at 19 the time it was committed.**  **20 MR. NIAKAN: Yes, Your Honor. 21 JUDGE YODER: When we get to the point**  **22 of determining the level of penalty, there are**

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## 1 other considerations that may come into play but **2 I'm not going to try to tell you whether it's 3 your previous financial situation or your current**  **4 financial situation. That's something you're 5 going to have to focus on, both of you and figure**  **6 out what time period you're going to look at. 7 I mean, if you were bankrupt then but**  **8 you're flush now, that presents one picture. If 9 you're flush now and bankrupt, you were flush**  **10 then and bankrupt now, that presents another 11 picture. All of those things, it strikes me,**  **12 might need to be taken into consideration in 13 connection with, number one, whether you're a**  **14 small business. 15 Certainly the ability to pay would**  **16 have to be determined based on your condition 17 now.**  **18 MR. NIAKAN: Yes. That makes sense, 19 Your Honor.**  **20 JUDGE YODER: So if you want to raise 21 the question of ability to pay you're going to**  **22 have to provide your financial data to Mr.**

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## 1 Lambert and he's going to have to tell you what **2 that is, what you need to provide. 3 MR. NIAKAN: Yes, Your Honor.**  **4 JUDGE YODER: What you're saying is 5 you don't know whether you want raise it or not.**  **6 Is that what you're saying? 7 MR. NIAKAN: We're going to raise it.**  **8 JUDGE YODER: Okay. Well, then that 9 means that you're going to have to provide the**  **10 financial data so, Mr. Lambert, you're going to 11 have to send him and you can do that right away,**  **12 what he needs to provide in order to show what 13 his ability to pay is.**  **14 MR. LAMBERT: Yes, Your Honor. And we 15 normally request that in Notice of Investigation**  **16 and I just checked and we did not ask for the 17 specifics so I will do that immediately.**  **18 JUDGE YODER: Well, that's a little 19 discouraging. I understand what you're saying.**  **20 Ability to pay is an implicit issue in 21 every civil penalty case. So unless you figure**  **22 that by not saying anything about it you won't**

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## 1 have to deal with it, you should be inquiring **2 about it in every case. 3 Otherwise we have what we've got now.**  **4 No information. And I don't know how you 5 negotiate a settlement when you don't know**  **6 whether you've got a small business and you don't 7 know whether you've got an ability to pay**  **8 question. 9 I don't know how you can set a**  **10 proposed penalty in the complaint if you don't 11 know whether you've got an ability to pay**  **12 question. Do you understand what I'm saying? 13 MR. LAMBERT: Yes, Your Honor.**  **14 MR. NIAKAN: Yes, Your Honor. 15 JUDGE YODER: Ability to pay is**  **16 supposed to be considered in framing the request 17 for release unless it's not an issue.**  **18 MR. NIAKAN: Yes. 19 JUDGE YODER: All right?**  **20 MR. NIAKAN: Yes, Your Honor. 21 JUDGE YODER: Okay. So you folks are**  **22 going to have to address those questions.**

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## 1 Let's see what else we've got here. **2 I don't know what annual receipts are but you'll 3 have to figure that out. That's the term that**  **4 the Small Business Act uses that is the 5 determiner whether or not you're a small**  **6 business. 7 There may be other factors that relate**  **8 to whether you're a small business. I'm not 9 going to try to get into that. All I'm trying to**  **10 do is alert you folks to the issues that are 11 implicit in this case which no one seems to have**  **12 addressed. Do you understand what I'm saying? 13 MR. NIAKAN: Yes, Your Honor.**  **14 JUDGE YODER: All right. 15 MR. LAMBERT: Yes, Your Honor.**  **16 JUDGE YODER: Yes. All right. Let's 17 look on here. What do you understand the maximum**  **18 penalty per violation is, Mr. Lambert? 19 MR. LAMBERT: I'm looking. The matrix**  **20 says that the maximum will be 8200, Your Honor, 21 per violation.**  **22 JUDGE YODER: In every case generally**

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## 1 what is the maximum fine per violation? **2 MR. LAMBERT: 82,000, $8200.00 per 3 violation.**  **4 JUDGE YODER: $8200.00? 5 MR. LAMBERT: Per violation. Yes,**  **6 Your Honor. 7 JUDGE YODER: That's not the**  **8 regulatory maximum, that's your matrix maximum? 9 MR. LAMBERT: Oh, yes, Your Honor.**  **10 JUDGE YODER: I'm asking you for the 11 regulatory maximum.**  **12 MR. LAMBERT: I'm sorry. We relied on 13 the matrix, I relied on the matrix when --**  **14 JUDGE YODER: Well, the matrix is not 15 law, pardon the expression, but this proceeding**  **16 is controlled by law, not by the matrix. 17 MR. LAMBERT: Yes, Your Honor.**  **18 JUDGE YODER: And the matrix may be 19 binding on you in putting something into a**  **20 complaint but it is not binding on a Respondent 21 and it's not binding on me because it's not law.**  **22 Are you following me?**

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## 1 MR. LAMBERT: Yes, of course, Your **2 Honor. 3 JUDGE YODER: Yes, okay. Good. Now**  **4 can you tell me what the maximum penalty is for a 5 violation of hazmat?**  **6 MR. LAMBERT: I believe it's $50,000,**
**7 Your Honor. 8 JUDGE YODER: It keeps going up all**  **9 the time. It's hard to keep track of. 10 MR. LAMBERT: Yes, Your Honor. I**  **11 misunderstood at first, but I believe under the 12 hazmat regulations it's 50,000 per violation.**  **13 JUDGE YODER: It's now 50,000. When 14 I started it was a lot less but that was a long**  **15 time ago. 16 So that's $50,000 per violation and**  **17 under the Small Business Act you may find that a 18 maximum is more like 11,000.**  **19 In any event there is a maximum civil 20 penalty under the Small Business Act which is**  **21 substantially lower than the maximum penalty 22 otherwise. N'est-ce pas? Do you gentlemen** 

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## 1 understand that? **2 MR. NIAKAN: Yes, Your Honor. 3 MR. LAMBERT: Yes, Your Honor.**  **4 JUDGE YODER: I would hazard to guess 5 that that might be of some relevance in talking**  **6 about negotiating a settlement. Okay? 7 MR. NIAKAN: Yes, Your Honor.**  **8 JUDGE YODER: All right. Now let's 9 see. Bear in mind, I'm not telling you what the**  **10 law is here. I'm just suggesting that these are 11 issues you should focus on.**  **12 All right. So is there anything else 13 that you gentlemen want to talk about before we**  **14 wind this up? I mean, if you'd like to settle it 15 right now that would be fine.**  **16 MR. NIAKAN: You know, Your Honor, 17 we've been in talks directly in the last couple**  **18 of days and I hope we continue to do so. 19 JUDGE YODER: Yes.**  **20 MR. NIAKAN: So as of right now, no, 21 I don't have anything to add.**  **22 JUDGE YODER: Okay. Well, then what**

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## 1 I'm going to need is for you gentlemen to get **2 back to me, let's say in a month and let me know 3 whether this case is settled or it's going to**  **4 settle or we're going to hearing. All right? 5 MR. NIAKAN: How do we get in touch**  **6 with you, Your Honor? Call you or? 7 JUDGE YODER: You send me a**  **8 communication. 9 MR. NIAKAN: Okay.**  **10 JUDGE YODER: If it's settled all you 11 got to do is send me something saying it's**  **12 settled and the Counsel for the Government will 13 normally take care of that.**  **14 MR. NIAKAN: I see. 15 JUDGE YODER: But you can do it**  **16 together. That's up to you, okay? Normally we 17 do not function on the basis of letters.**  **18 MR. NIAKAN: Yes. 19 JUDGE YODER: We get filings of**  **20 notices or responses or something, okay? 21 MR. NIAKAN: Yes.**  **22 JUDGE YODER: And we don't engage in**

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## 1 correspondence. But what you'll want to do is **2 send some communication to me, either that it's 3 settled or it's going to settle or, but in any**  **4 event we're going to set up some dates because if 5 it isn't settled then I need the various items** **6 that we have mentioned in the course of this pre 7 hearing conference.**  **8 I need an indication from respondent 9 as to whether they're small business concerned**  **10 and the information that substantiates that. 11 I need to know whether they're**  **12 claiming an ability to pay consideration in 13 terms, in connection with a penalty computation**  **14 and the financials that support that. 15 I need to know when you can provide**  **16 Mr. Lambert with the financial information that's 17 necessary in connection with the ability to pay**  **18 question. 19 Mr. Lambert, can you get that out to**  **20 him today? 21 MR. LAMBERT: Yes, Your Honor, I will.**  **22 JUDGE YODER: Okay. So my**

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## 1 understanding is, Mr. Niakan, that Mr. Lambert **2 will be sending you today, the information that's 3 required in connection with a consideration of**  **4 your ability to pay.**
**5 MR. NIAKAN: Yes. 6 JUDGE YODER: Now I know you haven't**  **7 looked at, you haven't seen what he is talking 8 about but I would want that in, certainly before**  **9 the date when you're supposed to make a 10 resettlement report. Can you give me a date by**  **11 which you could provide that financial 12 information?**  **13 MR. NIAKAN: Two weeks, Your Honor. 14 JUDGE YODER: Okay. Two weeks for the**  **15 financial information and you can just send that 16 to Mr. Lambert and then you folks can talk about**  **17 the implications of that for ability to pay and 18 for small business.**  **19 And then you can start talking about 20 what kind of penalty you should be considering,**  **21 okay? 22 MR. NIAKAN: Yes.** 

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## 1 JUDGE YODER: And that'll give you **2 another two weeks before you're supposed to 3 report to me on whether it's settled, all right?**  **4 MR. NIAKAN: Yes, Your Honor. 5 JUDGE YODER: All right. Then I need**  **6 from Mr. Lambert the penalty computations, the 7 proposed penalty computations.**  **8 And I'm sure that Mr. Niakan will also 9 be interested in those in connection with any**  **10 settlement discussions you have. 11 So I would assume that you certainly**  **12 could provide that within the next two weeks, Mr. 13 Lambert. Is that a fair assumption?**  **14 MR. LAMBERT: Absolutely, Your Honor. 15 JUDGE YODER: All right. So I think**  **16 that probably the penalty computation should be 17 provided to me as well.**  **18 MR. LAMBERT: Yes, Your Honor. 19 JUDGE YODER: Yes. So we have two**  **20 reasons I want to receive that from you and I 21 think, Mr. Niakan, you should also provide the**  **22 other information and serve it.**

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## 1 MR. NIAKAN: Yes, Your Honor. We'll do **2 that. 3 JUDGE YODER: Okay?**  **4 MR. NIAKAN: Yes, sir. 5 JUDGE YODER: Fine. Now let's see.**  **6 Then if it hasn't settled after you provide that 7 information at the end of the month, we'll figure**  **8 out what date that winds up being. It would be 9 about November 26 or something like that and**  **10 we'll make sure that's a real date. 11 Then we need some submissions.**  **12 (Telephonic interference) what those things 13 relate to. As I recall the first question that**  **14 arose was what you have to do in order to 15 knowingly violate this regulation.**  **16 And Mr. Niakan, if you're going to 17 contend that knowingly means anything other than**  **18 knowing that you're shipping something and what 19 it is you're shipping, then you're going to need**  **20 to file a brief indicating your basis for that 21 contention.**  **22 And I think I indicated several other**

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## 1 things. I know that if you're going to make an **2 ability to pay argument or a small business 3 argument, that that should be supported by a**  **4 brief.**
**5 MR. NIAKAN: Yes. 6 JUDGE YODER: So we'll know what**  **7 you're going to contend. We don't go into 8 hearings and just throw as much stuff in the**  **9 record as we can. We go into hearings knowing 10 exactly what we're going to try and what it is**  **11 that we need in order to try it, okay? 12 MR. NIAKAN: Yes, Your Honor.**  **13 JUDGE YODER: So if there's going to 14 be a hearing in this case, that's the kind of**  **15 hearing it's going to be. All right. 16 So those briefs on each side as to**  **17 your contentions. And I know that the 18 Government's brief would relate at least to the**  **19 method of computation of the proposed civil 20 penalty, and the number of violations, and which**  **21 violations and so forth. 22 So that needs to be, I would suppose** 

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## 1 that that could be filed within two weeks after **2 we get that other information, after the 3 settlement response.**  **4 So we have two weeks from today and 5 that is -- This is October 5, the second would be**  **6 9th. On November 9 you folks will provide to 7 each other the data we talked about your**  **8 providing and a copy to me. Okay? 9 MR. NIAKAN: Yes, Your Honor. I**  **10 understand we have to, we will provide -- 11 JUDGE YODER: The financial data.**  **12 MR. NIAKAN: -- financial information 13 to the Court and to the --**  **14 JUDGE YODER: They will provide you 15 with the basis for the violation computation, the**  **16 penalty computation. 17 MR. NIAKAN: Your Honor, does**  **18 financial information has to be a certain format 19 that the --**  **20 JUDGE YODER: Yes, they're going to 21 send that to you.**  **22 MR. NIAKAN: They're going to send it.**

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## 1 JUDGE YODER: He's going to send it to **2 you today. 3 MR. NIAKAN: Okay. Great.**  **4 JUDGE YODER: You'll have two weeks to 5 put that together. And if you have a problem**  **6 with timing, I'm available but I don't know of 7 any reason why you shouldn't be able to do these**  **8 things in two weeks, okay? 9 MR. NIAKAN: I wouldn't know either,**  **10 Your Honor. 11 JUDGE YODER: All right.**  **12 MR. NIAKAN: If there is a problem I 13 would contact you.**  **14 JUDGE YODER: Yes. So you'll make an 15 application.**  **16 MR. NIAKAN: I'll make an application. 17 JUDGE YODER: Yes, that's a motion.**  **18 MR. NIAKAN: Motion, yes. 19 JUDGE YODER: Right. Just contacting**  **20 me is not going to get it done. 21 MR. NIAKAN: Correct.**  **22 JUDGE YODER: You're going to have to**

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## 1 move for an extension, all right? **2 MR. NIAKAN: Yes. 3 JUDGE YODER: So those things are due**  **4 by each of you on November 9. That's two weeks 5 from today.**  **6 And then a month from today is 7 November 26th which is a Saturday, so we'll make**  **8 it November 28, which is a Monday. 9 And these of course for me are receive**  **10 dates. That's in my hands. So they either get 11 FedEx delivered or whatever, but they don't just**  **12 get dropped in the mail and hope I get them. Do 13 you understand what I'm saying?**  **14 MR. NIAKAN: Yes, Your Honor. 15 JUDGE YODER: These are in my hands.**  **16 Okay. So November 28th we'll get a report on 17 settlement.**  **18 MR. NIAKAN: Yes, Your Honor. 19 JUDGE YODER: We'll come up with that**  **20 together and you can tell me whether you've got 21 it, whether you haven't.**  **22 And if you don't have it, then two**

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## 1 weeks after that, which is December 12, December **2 12 you will file a brief on the subjects that 3 we've discussed in the pre-hearing conference,**  **4 including the computation of the proposed 5 penalty, the small business qualification, the**  **6 ability to pay consideration and the question of 7 knowingly.**  **8 And also the question of training and 9 how that's going to be proved. I understand that**  **10 Mr. Lambert was talking about calling your people 11 to prove that you didn't do training but I don't**  **12 know whether that's going to work. So he's going 13 to have to brief the question, how he's going to**  **14 prove that and what he needs to prove in order to 15 prove it.**  **16 So that's December 12. And then, 17 well, you want a week for reply briefs after**  **18 that? 19 MR. LAMBERT: Yes, Your Honor.**  **20 JUDGE YODER: That would be December 21 19. And then we'll give you Christmas off.**  **22 MR. NIAKAN: Thanks, Your Honor.**

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## 1 MR. LAMBERT: All right. **2 JUDGE YODER: Or whatever it is. The 3 holiday season we'll take off, okay?**  **4 MR. NIAKAN: Your Honor, will we 5 receive something in writing in, about these**  **6 dates or I'm just writing down whether -- 7 JUDGE YODER: Well, you'll have the**  **8 transcript of this proceeding at some point. But 9 I can't tell you when that is if you don't buy a**  **10 transcript. 11 DR. NORONHA: Yes, Your Honor.**  **12 JUDGE YODER: Do you understand what 13 I'm saying?**  **14 MR. NIAKAN: Yes, Your Honor. 15 JUDGE YODER: That's why we put these**  **16 things out 30 days. You don't need anything in 17 writing to tell you that you need to do something**  **18 by November 9. 19 MR. NIAKAN: Yes.**  **20 JUDGE YODER: You're going to provide 21 information on your financials by November 9,**  **22 right?**

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## 1 MR. NIAKAN: Yes, Your Honor. **2 JUDGE YODER: And they're going to 3 provide you their computation of the penalties by**  **4 November 9. 5 And then by November 28th you're going**  **6 to tell me whether you've settled the case or not 7 and if you haven't, on December 12 you'll file**  **8 briefs and December 19th a reply brief. 9 And then we will set a hearing for**  **10 some time thereafter. Okay? 11 MR. NIAKAN: Yes, Your Honor.**  **12 MR. LAMBERT: Yes, Your Honor. 13 JUDGE YODER: Anything further we need**  **14 to address today gentlemen? 15 MR. NIAKAN: I don't have anything**  **16 further, Your Honor. 17 MR. LAMBERT: Nothing further, Your**  **18 Honor. Thank you very much. 19 JUDGE YODER: Well, thank you both and**  **20 I hope this will move you forward in your 21 discussion and perhaps this case can get settled.**  **22 MR. NIAKAN: This was very helpful,**

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## 1 Your Honor. We appreciate it. **2 JUDGE YODER: Good. All right. Thank 3 you, gentlemen. That concludes the pre-hearing**  **4 conference. 5 MR. NIAKAN: Thank you, Your Honor.**  **6 Thank you, Mr. Lambert. 7 (Whereupon, the above-entitled matter**  **8 went off the record at 3:10 p.m.) 9**  **10 11**  **12 13**  **14 15**  **16 17**  **18 19**  **20 21**  **22**

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### (202) 234-4433 Washington DC www.nealrgross.com Neal R. Gross and Co., Inc. 

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1994 19:21 1994- 19:20 19th 57:8 2 2:00 1:15 2:06 3:2 2003 19:18 2003-10 19:17 2009-1044 19:13 2010 19:2,7 2011 8:10,13 2012 9:1,2,3 2013 21:2 33:21 2016 1:10 202 2:7,21 20591 2:20 20852 2:6 21(m) 27:20 22 9:11,17 11:9 21:2

27:14,16 2350 32:18 26 1:10 50:9 267-3357 2:21 26th 54:7 276-4726 2:7 28 54:8 28th 54:16 57:5 3 3(b) 32:18 3:10 58:8 30 8:16 56:16 31 19:21 33,000.00 30:19 33,950 9:10 30:20 4 400 17:6 5 5 19:17,21 52:5 50,000 44:6,12,13,16 6 620 2:5 7 7 9:1 19:21 750,000 33:8,9 38:6 8 800 2:19 82,000 43:2 8200 42:20 8200.00 43:2,4 9 9 52:6 54:4 56:18,21 57:4 9th 52:6

### NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com 

### C E R T I F I C A T E

This is to certify that the foregoing transcript

In the matter of:

Before:

Date:

Place:

was duly recorded and accurately transcribed under my direction; further, that said transcript is a true and accurate record of the proceedings.

----------------------- Court Reporter 65

Trans Time Express

USDOT/OH

10-26-16

teleconference