;


## SERVED: SEPTEMBER 11, 2012

UNITED STATESDEPARTMENT OFTRANSPORTATION OFFICEOFHEARINGS

WASHINGTON,D. C.

) 

### FEDERAL AVIATIONADMINISTRATION,) ) 

## l 12 A 10: 0 I

Complainant, ) FAADOCKETNo. [TO BEASSIGNED] )


### v. ) (Civil PenaltyAction) ) 

### NUFASHION BEAUTY SUPPLY ) DISTRIBUTORS, ) ) 

### Respondent. ) DMSNo. FAA-2011-1123

INITIAL DECISION OF ADMINISTRATIVE LAW JUDGE RICHARD C. GOODWI-N


### Found: Respondentis herebyassessed a civil penaltyof$5,000.

I. Background
The only issue in this proceeding is penalty.**Compl~inant** Federal Aviation Administration ("Complainant," "FAA," or "the·agency"} had initiated this matterby its Complaint alleging that Nu Fashion Beauty Supply Distributors ("Respondent" or "Nu Fashion") had offered in air transportation an undeclared hazardous material. Respondent, of St. Louis, MO, is a wholesale and retail entity specializing in hair care equipment and products (Exh. C-5). It had tendered to United Parcel Service ("UPS") for airtransportation a package containing twelve 10-ounce aerosol cans of hair spray. Among the extensive listing ofsubstances identified-and categorized as hazardous in passenger and cargo air transportation bythe Department's Hazardous Materials Regulations ("HMRs"), 49 CFR §§171-178, are aerosols such as the product under reviewtoday. 

### See Table following 49 CFR §172;101; Exh. C-2; Tr. 33-34.**----------------------------------------------~--~--**

2
Offering hazardous materials in the stream ofair transportation triggers certain requirements shippers are obliged to respect. These substances must be shipped with certain markings and labels to facilitate proper handling. The product we are concerned with is designated as an Aerosol, Hazard Class 2.1 (Flammable Gas); as such, the package should have been so marked and labeled. See Table following 49 CFR §172.101; Tr. 30; Exh. C-3. Other packaging and informational requirements also attachto such shipments. But this shipment was undeclared (Tr. 35; Exh. C-2, p. 1). "Undeclared" means'that it contained no warning or notice ofthe hazardous nature of its contents. Midtown Neon Sign Corporation, FAA Order No. 96-26 (August 13, 1996), p. 2. Nor had Nu Fashion employees received training in hazmat shipping. As such, the Complaint continued, Respondent committed seven HMR violations.
More specifically, the Complaint, dated October 26, 2011, charged Nu Fashion with violations of49 CFR, sections: 1) 171.2(c) (prohibiting the offer ofa hazardous material unless it is properly described, packaged, marked, labeled, and in condition for shipment); 2) 172.200(a) (requiring an offerorto properly describe the hazmat on a shipping paper); 3) 172.202(a) (setting out the requirements for describing a hazmat entering the stream ofair transportation. These include conveying its identification number, hazard class, and packing group); 4) 172.204(a) (written certification that the hazmat is offered in conformance with HMR requirements); 5) 172.301(a)(1) (requiring that the hazmat package be marked with proper shipping name and identification number); 6) 172.400(a) (assuring that hazmat packages are properly labeled); and 7) 172.702(a) (ensuring that hazmat employees are trained as required). Pursuant to 49 U.S.C. §5123(a) (1), the agency sought a total civil penalty of$15,000. Tr. 23. Respondent acknowledged that it committed the violations. It did not contest the facts alleged (Tr. 9: "[t]here are no facts in dispute here"). But it opposed the agency's civil penalty request as too high and as unwarranted by the facts. Nu Fashion suggests that it

. deserves "a small penalty" (Tr. 10), "a thousand dollars" (Tr. 13). Against this·background, I found the violations as charged and limited this proceeding to the issue ofcivil penalty. See Order Limiting Proceeding to Issue of Penalty, served Apri124, 2012,
A hearin·g on the issue ofthe appropriate civil penalty was held on June 19, 2012, in St. Louis, MO. I determined tuat a written decision**w~s** reasonable and app,rQpJiate under the circumstances. The parties have each filed opening briefs, and Complainant, which has the burden of proof, also has filed a rebuttal brief. 1
I hold that the facts and circumstances ofthis case warrant an·assessment against Respondent of$5,000.

1Complainant's Briefwillbe designated as "Comp1. Br.", the PostTrial BriefofRespondent as "Resp. Br.", and Complainant's Rebuttal Briefas "Compl. Rebut."3



### 11. Penalty
A. 

### Factors
Determination ofan appropriate civil penalty involves a number offactors. The decisionmaker mustweigh "the nature, circumstances, extent, and gravity ofthe violation[s]," and, with respect to the violator, "the degree of culpability, any history of prior violations, [and] the ability to pay" as well as "other matters thatjustice requires." These include mitigating and aggravating circumstances (49.U:S.C. §5123(c); Tr. 24-25). The principal elements in the analysis are the nature ofthe respondent's conduct and the totality ofthe. circumstances. Envirosolve, LLC, FAA Order No. 2006-2 (February 7, 2006), p. 13.
The Administrator has provided policy guidance for agency employees to follow when recommending an appropriate civil penalty in hazardous-materials cases. The guidance is found in the agency's published Penalty Guidelines ("the Guidelines"). The Guidelines, found in FAA Order 2150.38 (and in this proceeding as the agency's Exh. 1), assess all relevant statutory criteria, including mitigating and aggravating circumstances. The Guidelines further aid Complainant's penalty determination through a Sanction Guidance Matrix ("the Matrix"). The Matrix sets out specific penalty ranges for each input, cross-referencing such factors as the size ofthe respondent, the extent of its usual dealings with hazmats, andthe relative risk of harm posed bythe goods involved. For example, the Matrix has a category for a business that "regularly" offers hazmats in the course of its business, and another category, with a range of lesser fines, for a business that "uses" or "handles" hazmats (see Order 2150.38, pp. C-14 and C-15, orComplainant's Exh. 1, pp. 14-15; see also Tr. 22-23, 26-28, 62). Complainant's sanction determination nevertheless does not reflect merely a fixed mathematical computation. Nor is the number of HMR Violations in itself an important consideration. The Administrator has cautioned that deriving an assessment simply by multiplying the number ofviolations by the penalty recommended per violation could result in a fine disproportionately severe and unjustified in the circumstances. Warbelow's Air Ventures, Inc., FAA Order No. 2000-3 (February 3, 2000), pp. 20-21, pet. forreconsid. den., FAA Order No. 2000-14 (June 8, 2000). Rather, the Guidelines are intended to indicate the Administrator's "general viewS:' about the civil penaltyranges appropriate for:.different types ofviolations. Folsom's AirService, Inc., FAA Order No. 2008-11 (November 6, 2008), 2008. WL 4948488, p. 13. Nor are the Guidelines binding. Each situation, being dependent on so many variables, is unique. "Evaluation ofthe case," the FAA has emphasized, "is based on the totality ofthe facts and circumstances."2
An administrative lawjudge ("ALJ") is not required to follow the guidelines. The guidelines are intended for agency personnel, and ALJs are not agency personneL Folsom's, supra, p. 14. ALJs make decisions independently, and the ALJ determines (subject to agency review) whether a civil penalty isto be assessed, and ifso, in what

2 FAAPolicyonEnforcement ofthe Hazardous Materials Regulations: Penalty Guidelines, 64Fed.Reg. 19443, 19444, 1999

### WL 226610(F.R.) (A:pril21, 1999), also published onApril14, 1999, as Change26, Appendix 6, to FAA Order2150.3A. Order2150.3B, effective October 1, 2007, updated andsupersededthe original guidelines. See 72 Fed.Reg. 55853. FAA Order2150.3B may also be found atwww.airweb.faa.gov.4

amount. The Guidelines nonetheless must be respected as an expression ofagency sanction policy. They represent an effort to produce consistent results in similar cases. The Administrator has asserted the power to impose the agency's sanction policy on appeal ifan ALJ assesses a civil penalty that is not consistent with the Guidelines. Warbelow's, supra, p. 20; NorthwestAirlines, FAA Order No. 1990-37 (November 7, 1990}, pp. 8-10.


### B. Complainant'sPosition Complainant has asked for a levy of$15,000. It bears the burden of proving the appropriateness ofthis amount by a preponderance ofthe evidence: Phillips Building Supply, FAA Order No. 2000-20 (August 11, 2000), p. 8.
In support of its suggested fine, Complainant stresses the undeclared nature ofthe shipment. UPS cargo handlers, who began to process this shipment, absorbed an unknown

- and therefore, inherently perilous

-- risk because they were unaware ofthe package's nature. Emergency response information was lacking as well. Such information is vital and could have proven critically important (Tr. 36-38). Complainant also notes that the Guidelines typically place aerosols in the highest-risk category, known as Category

### A Violations involving Category A materials warrant maximum weighting for civil-penalty purposes (Exh. C-1, p. 17; Tr. 40-42). Complainant also pointed out that Nu Fashion prepared the shipment (Tr. 48-49). Had it been prepared by a third party, Nu Fashion might have been justified in casting blame for the violations elsewhere.
On the other hand, Complainant notes that offering aerosols in airtransportation is permissible; unlike certain other hazardous substances, they are not completely forbidden from air transportation (Tr. 42-45). Complainant noted also that Respondent had no previous HMR violations. And it had shown no intention ofviolating the HMRs (Tr. 46, 59, 74). Additionally, since Nu Fashion was not the manufacturer ofthe material, a manufacturer's presumed particular knowledge could not be imputed to it (Tr.'47). Complainant determined that no aggravating factors were involved in the circumstances surrounding the offending shipment (Tr. 58). The agencydid find a significant mitigating factor, however. This was its view that the aerosol cans warranted reclassification underthe HM8s as a consumer commodity. The hairspray,jtconcluded, was a personal item and was sold as a consumer item. The resulting classification lowered the perceived risk ofthe commodity from the high-risk CategoryA to the low-risk Category C (Tr. 63-64). The HMRs additionally temper enforcement ofconsumer commodities, requiring only that regulations in three areas -- shipping papers, markings, and training

-- be observed for sanction purposes (Tr. 66). · The agency then calculated its proposed penalty from the Matrix. Its witness on these issues, hazardous materials manager David Schaufler, testified that Respondent is properly categorized as a business entity regularly offering ortransporting hazmats (Tr. 62- 63; see Exh. C, p. 12). Other key determinants were the FAA's view that Respondent was an offeror ofan undeclared consumer commodity, and that its package, as seen, violated HMRs relating to three areas only. The low end ofthe range of penalty that the Matrix ··suggests in these circumstances produced a·cMI'penarty recomrnel1dationof$15,()00(Tr.

67-69; see r=xh. C-1, p. 12).

. ·. 5



### C. Respondent'sPosition
In its defense, Respondent stressed that the hairspray at issue simply is a relatively harmless consumer product. Nu Fashion suggests that its purported danger is overblown. After all, it noted, hairspray is supposed to be directed at one's head- implying that that it is an unlikely place one would aim a product that is truly dangerous (see, e.g., Tr. 11-12). Respondent also underscores the fact that it had volunteered information about its shipment to UPS. It also pointed out that the offending material did not make it aboard the aircraft (Exh. A-4; Tr. 75-76). Respondent additionally stressed that it typically ships such products by ground transportation. This shipment was undertaken as a favor for a customer. Nu Fashion has never before been cited for a violation, and given its customary ways ofdoing business, Respondent argues further, there is virtually no likelihood ofa repeat ofthis conduct (Exh. A-4; Tr. 77; Resp. Br., pp. 1, 2). Complainant's general policy ofdeterrence, then, has no application in this case, It argues. · ·· Respondent repeated its conclusion that an appropriate fine would be $1,000 (Resp. Br., p. 2). It did notpresent any evidence suggesting that it was unable to pay the civil

.. penalty the agency proposes or any lesser amount.


### D. Decision
I have decided to assess a total civil penalty of$5,000. I find and conclude that

### t~is amount appropriately reflects the totality ofthe circumstances surrounding the offending shipment and achieves and furthers Department policies.

. 

# . Hazardous materials always require particular attention. They pose·a dangerto the safety ofairtransportation bytheir very nature. The risk of harm must be kept to an absolute minimum in view ofthe possible grave consequences oferror. Carriers of dangerous goods- even one-time carriers-- are expected to conform to the highest standards ofcare and, concomitantly, must answer in appropriate measure ifthey fall short. Any package containing hazardous materials which fails to conform"j:.QJbe HMRs introduces an unacceptable element into the stream ofair commerce. In this case the items, twelve aerosol cans, were flammable. By theirvery nature, then, they

### pr~~e!lted a significant risk to airtransportation safety. These facts and circumstanceswarrant a meaningful penalty.

. .., As a consumer commodity typically used as a household product, I

### agre~with Complainant that a downgrade ofthe danger normally associatedwith aerosols, and the application ofthree violations for sanction purposes (rather than seven), is**warr~nted.** But I do not believe that the agency's method ofderiving a civil penalty recommendation sirflply by multiplying .the minimum recommended assessment per violation by the number of violations isjustified in this case. Arriving at the civil penaltydetermination in such.a mechanical fashion is notfavored (see Warbelow's Air Ventures, citedin 

### I.D., p. 

### 3); ·moreover, in this' instance, 

### itis ·unmeritect ·**~-**

,' ,,:··,,

# "'"' • 6
Complainant's calculus from the Guidelines and Matrix is flawed in the beginning. Its suggested penalty was derived in significant part by the agency's conclusion that Nu Fashion is a business regularly tendering such products (see 

### I.D., p. 4). But this is too broad a characterization of Respondent. It results in punishing Nu Fashion unfairly. Respondent testified credibly that, while it is a regular shipper of hair products**~-** including aerosols such as these-- it nearly always ships them by ground, Shipping them by air is decidedly atypical. Nu Fashion should not therefore be considered under the Matrix as an. entity in the business of regularly shipping hazardous goods in air transportation. In these circumstances, moreover, there is no reason why Nu Fashion should have known, oreven been aware of, the regulations involved in transporting hazmats by air. (Indeed, as seen, it asked the physical shipper, UPS, for help in figuring outthe procedure).
In non-egregious circumstances such as in the instant matter,the Administrator has cautioned against "piling on" violations. This policy has particular relevance when the violator is notin the business ofshipping goods in airtransportation.

### PaulA. Carr, FAA Order No. 98-2 (March 12, 1998), pp. 11-12. This being such a case, I find.that Complainant's suggested civil penalty simply is too severe for a one-time violatorwhich does not typically ship hazardous products by air. I do not think that Nu Fashion should be penalized three times forwhat is, essentially, one mistake committed in an unusual (for it) commercial situation. One penalty at the k>w end ofthe Matrix sufficiently serves the purpose. ,.. - On the other hand, I give no weight to Respondent's argumentthat the offending material never made it aboard aircraft. As Complai.nant's witness, Mr. Schaufler, testified, the items' placement in the aircraft hold Would have raised the level of risk and the consequent penalty recommendation (Tr. 82).
In weighing the all the relevant facts, I find and conclude that a civil penalty assessment of$5,000 is appropriate and warranted. It is commensurate with'the circumstances. It properly reflects the nature and measure ofthe risk to airtransportation safety created by Respondent, while giving suitable weight to the other salient factors discussed above. The penalty, I find, will achieve the statutory purpose of promoting compliance with the HMRs and deterring Respondent and entities in a similar position. In sum, I conclude that a civil penalty of$5,000 appropriately accounts forthe

...factors the statute and agency policy direct in fixing the assessment. 3



### . .

## .

3 I have considered all other arguments advancedbybothparties. Those notdiscussed are rejectedas withoutmerit. -·-.**~.** 

# . .**~**



## - 

# .7
Respondent Nu Fashion Beauty Supply Distributors is hereby assessed a civil penalty of$5,000 for violations ofthe HMRs 49 C.F

### .R. 

### §§ 171.2(c), 172.200(a), 172.202(a), 172.204(a), 172.301(a)(1), 172.400(a), and 172.702(a), as stated in this Initial Decision.4



### Attachment

- Service List



# ..

4 This decision maybe appealed to theAdministrator oftheFAA. Thenotice ofappeal must conformto sections 13.210, l3.211(e) and 13.233 ofthe Rules ofPractice, whichrequire that a notice ofappeal1)be filed notlaterthan



### ,**~,Q~ ~~Y~** **iE!R~-?!L~d4,!!Ic:>n~J'iY.~ 9.~Y~.** **ifmflH~4)**

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written brieformemorandumnotlaterthan 50 days (plus an additiolJ.alfive, ifinailed) from the service date ofthis decision. The notice ofappeal and brieformemorandum musteitherbe a) mailedto the Federal Aviation Administration, 800 Independence Avenue, S;W., Washington, DC 20591, Attn: HearingDocketClerk, AGC-430, WilburWright Building-Suite2WIOOO, orb) deliveredpersonally orvia expedited courier service to the Federal AviationAdministration, 600 Independence Avenue, S.W., WilburWrightBuilding-Suite2WIOOO, Washington,**•liiiwlllllllllliJIIIII!IjD!i.~c.~** ttn·.H · · ·

### Federal Aviation Administration 800 Independence Avenue, S.W. Washington, DC 20591 

### SERVICE LIST
ORIGINAL & ONE COPY

Attention: HearingDocket Clerk, AGC-430 Wilbur Wright Building-Suite2W1000 1


### ONE COPY
Ms. Gayle Chyu Nu Fashion Beauty SupplyDistributors,

### Respondent 1366 Kingsland Avenue St. Louis, MO 63133
W. Beavis Schock,

### Respondent's Counsel 7777 Bonhomme Avenue, Suite 1300 St. Louis, MO 63105 TEL: 314-726-2322 FJL[: 314-721-1698 Gayle E. Townsend, 

### Complainant's Counsel FDMS No.**FAA~2011-1123** 

### (Civil PenaltyAction)

Attorney, Office ofRegional Counsel • CentralRegion, ACE-7 Federal Aviation Administration DOTBuilding 901 Locust, Room 506 Kansas City, MO 64106-2641 TEL: 816-329-3766 FJL[: 816-329-3771
TheHonorableRichard C. Goodwin,

### AdministrativeLawJudge Office ofHearings, M-20 U.S. Department ofTransportation

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..,.,,,,.,.•.•,...•...""'''·'····· Washington, DC20590 TEL: 202-366-2139 Attorney-Advisor 202-366-5141 StaffAssistant FJL[: 202-366-7536

AviationAdministration, 600 lndependence.Avenue, S.W., WilburWrightBuilding-Suite2WIOOO, Washington, DC 20591; Attention: HearingDocket Clerk, AGC-430.