; 

SERVED: SEPTEMBER 11, 2012 

UNITED STATES DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D. C. 

) 

FEDERAL AVIATION ADMINISTRATION,) 

) 

l 12 A 10: 0 I 

Complainant, ) FAA DOCKET No. [TO BE ASSIGNED] 

) 

v. ) (Civil PenaltyAction) 

) 

NU FASHION BEAUTY SUPPLY ) 

DISTRIBUTORS, ) 

) 

Respondent. ) DMS No. FAA-2011-1123 

INITIAL DECISION 

OF ADMINISTRATIVE LAW JUDGE RICHARD C. GOODWI-N 

Found: Respondent is hereby assessed a civil penalty of $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 matter by 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 air transportation a package containing twelve 1 0-ounce aerosol 

cans of hair spray. Among the extensive listing of substances identified-and categorized as 

hazardous in passenger and cargo air transportation by the Department's Hazardous 

Materials Regulations ("HMRs"), 49 CFR §§171-178, are aerosols such as the product 

under review today. See Table following 49 CFR §172;101; Exh. C-2; Tr. 33-34. 
----------------------------------------------~--~--

2 

Offering hazardous materials in the stream of air 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 §172.1 01; Tr. 30; 

Exh. C-3. Other packaging and informational requirements also attach to such shipments. 

But this shipment was undeclared (Tr. 35; Exh. C-2, p. 1 ). "Undeclared" means 'that it 

contained no warning or notice of the 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 of 49 CFR, sections: 1) 171.2(c) (prohibiting the offer of a hazardous material 

unless it is properly described, packaged, marked, labeled, and in condition for shipment); 

2) 172.200(a) (requiring an offeror to properly describe the hazmat on a shipping paper); 3) 

172.202(a) (setting out the requirements for describing a hazmat entering the stream of air 

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 of civil penalty. See 

Order Limiting Proceeding to Issue of Penalty, served Apri124, 2012, 

A hearin·g on the issue of the 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 of this case warrant an· assessment against 

Respondent of $5,000. 

1 Complainant's Brief will be designated as "Comp1. Br.", the Post Trial Brief of Respondent as "Resp. Br.", and 

Complainant's Rebuttal Brief as "Compl. Rebut." 
3 

11. Penalty 

A. Factors 

Determination of an appropriate civil penalty involves a number of factors. The 

decision maker must weigh "the nature, circumstances, extent, and gravity of the 

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 that justice 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 of the respondent's conduct and the totality 

of the. 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 of the respondent, the extent of its usual dealings 

with hazmats, and the relative risk of harm posed by the 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, or Complainant'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 of violations 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. for reconsid. den., 

FAA Order No. 2000-14 (June 8, 2000). Rather, the Guidelines are intended to indicate the 

Administrator's "general viewS:' about the civil penalty ranges appropriate for:.different types 

ofviolations. Folsom's Air Service, 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 of the case," the FAA has emphasized, "is based on 

the totality of the facts and circumstances. "

2 

An administrative law judge ("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 is to be assessed, and if so, in what 

2 FAA Policy on Enforcement of the Hazardous Materials Regulations: Penalty Guidelines, 64 Fed.Reg. 19443, 

19444, 1999 WL 226610 (F.R.) (A:pril21, 1999), also published on April14, 1999, as Change 26, Appendix 6, to 

FAA Order 2150.3A. Order 2150.3B, effective October 1, 2007, updated and superseded the original guidelines. 

See 72 Fed.Reg. 55853. FAA Order 2150.3B may also be found at www.airweb.faa.gov. 
4 

amount. The Guidelines nonetheless must be respected as an expression of agency 

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 

if an ALJ assesses a civil penalty that is not consistent with the Guidelines. Warbelow's, 

supra, p. 20; Northwest Airlines, FAA Order No. 1990-37 (November 7, 1990}, pp. 8-10. 

B. Complainant's Position 

Complainant has asked for a levy of $15,000. It bears the burden of proving the 

appropriateness of this amount by a preponderance of the 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 of the 

shipment. UPS cargo handlers, who began to process this shipment, absorbed an 

unknown - and therefore, inherently perilous -- risk because they were unaware of the 

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 air transportation 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 of violating the HMRs (Tr. 46, 59, 

74). Additionally, since Nu Fashion was not the manufacturer of the 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 agency did find a 

significant mitigating factor, however. This was its view that the aerosol cans warranted 

reclassification under the 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 of the commodity from the high-risk Category A to the low-risk Category 

C (Tr. 63-64). The HMRs additionally temper enforcement of consumer 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 or transporting hazmats (Tr. 62-

63; see Exh. C, p. 12). Other key determinants were the FAA's view that Respondent was 

an offeror of an undeclared consumer commodity, and that its package, as seen, violated 

HMRs relating to three areas only. The low end of the 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's Position 

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 of doing business, 

Respondent argues further, there is virtually no likelihood of a repeat of this conduct (Exh. 

A-4; Tr. 77; Resp. Br., pp. 1, 2). Complainant's general policy of deterrence, 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 not present 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 of the circumstances surrounding the offending 

shipment and achieves and furthers Department policies. 

. . Hazardous materials always require particular attention. They pose· a danger to the 

safety of air transportation by their very nature. The risk of harm must be kept to an 

absolute minimum in view of the possible grave consequences of error. Carriers of 

dangerous goods- even one-time carriers-- are expected to conform to the highest 

standards of care and, concomitantly, must answer in appropriate measure if they fall short. 

Any package containing hazardous materials which fails to conform"j:.QJbe HMRs 

introduces an unacceptable element into the stream of air commerce. In this case the 

items, twelve aerosol cans, were flammable. By their very nature, then, they pr~~e!lted a 

significant risk to air transportation safety. These facts and circumstances warrant a 

meaningful penalty. . .. , 

As a consumer commodity typically used as a household product, I agre~with Complainant that a downgrade of the danger normally associated with aerosols, and the 

application of three violations for sanction purposes (rather than seven), is warr~nted. But I 

do not believe that the agency's method of deriving a civil penalty recommendation sirflply 

by multiplying .the minimum recommended assessment per violation by the number of 

violations is justified in this case. Arriving at the civil penalty determination in such.a 

mechanical fashion is not favored (see Warbelow's Air Ventures, cited in I. D., p. 3); 

·moreover, in this' instance, it is ·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, or even 

been aware of, the regulations involved in transporting hazmats by air. (Indeed, as seen, it 

asked the physical shipper, UPS, for help in figuring out the 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 not in the business of shipping goods in air transportation. 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 violator which 

does not typically ship hazardous products by air. I do not think that Nu Fashion should be 

penalized three times for what is, essentially, one mistake committed in an unusual (for it) 

commercial situation. One penalty at the k>w end of the Matrix sufficiently serves the 

purpose. , .. -

On the other hand, I give no weight to Respondent's argument that 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 of the risk to air transportation 

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 for the ... factors the 

statute and agency policy direct in fixing the assessment.3 

. . . 

3 I have considered all other arguments advanced by both parties. Those not discussed are rejected as without merit. 

-·-. 

~. 

. . ~ 

-. 
7 

Respondent Nu Fashion Beauty Supply Distributors is hereby assessed a civil 

penalty of $5,000 for violations of the 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 may be appealed to the Administrator ofthe FAA. The notice of appeal must conform to sections 

13.210, l3.211(e) and 13.233 of the Rules of Practice, which require that a notice ofappeal1) be filed not later than 

, ~,Q~ ~~Y~ iE!R~-?!L~d4,!!Ic:>n~J'iY.~ 9.~Y~. ifmflH~4) ___ f!;Qm,t!I~,~¥JY,i,c.~,,dat~. c:>{tbi~Jl!;?¥i~ic:>n,;md2l..bl:l p,cm~ctedwith.~. written brief or memorandum not later than 50 days (plus an additiolJ.al five, if inailed) from the service date of this 

decision. The notice of appeal and brief or memorandum must either be a) mailed to the Federal Aviation 

Administration, 800 Independence Avenue, S;W., Washington, DC 20591, Attn: Hearing Docket Clerk, AGC-430, 

Wilbur Wright Building-Suite 2WIOOO, or b) delivered personally or via expedited courier service to the Federal 

AviationAdministration, 600 Independence Avenue, S.W., Wilbur Wright Building-Suite 2WIOOO, Washington, 

•liiiwlllllllllliJIIIII!IjD!i.~c.~ ttn·.H · · · 
Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, DC 20591 

SERVICE LIST 

ORIGINAL & ONE COPY 

Attention: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building-Suite 2W1 0001 

ONE COPY 

Ms. Gayle Chyu 

Nu Fashion Beauty Supply Distributors, 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 Penalty Action) 

Attorney, Office of Regional Counsel • 

Central Region, ACE-7 

Federal Aviation Administration 

DOT Building 

901 Locust, Room 506 

Kansas City, MO 64106-2641 

TEL: 816-329-3766 

FJL[: 816-329-3771 

The Honorable Richard C. Goodwin, Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation .. , ,,.,,,,,,,,,,,,,,"h'''*TZOO'New'.Tel'§~:V"AV~mte~··s·:ft"'~1''!'3·'l''Cr)'""···WA•····,.,.c;.,,,,,,,,,'0.,.,,,j;,'"''V'.,, . .,, .• ,, .. , ..... , ,,,,,,,"''''", .. ,.,,,,., .•.• , ...•... ""'''·'····· 

Washington, DC20590 

TEL: 202-366-2139 Attorney-Advisor 

202-366-5141 Staff Assistant FJL[: 202-366-7536 

Aviation Administration, 600 lndependence.Avenue, S.W., Wilbur Wright Building-Suite 2WIOOO, Washington, 

DC 20591; Attention: Hearing Docket Clerk, AGC-430.