# - t-- 

## u.s. 

# RECEIVED DEPARTMENT OF TRANSPORTATION 

## NOV 1 8 2013 OFFICE OF HEARINGS WASHINGTON, DC In the Matter of: 

## HEARING DOCKET )FAA Docket No. CP10NM0012 TGI FREIGHT )DMS NO. FAA-2010-1079

________________________________)Judge RICHARD C. GOODWIN MOTION FOR FEES AND COSTS TGI Freight (hereinafter nTGI"), through its attorneys, the Law Office of Hozubin and Moberly, hereby moves for its fees and costs in the above-listed matter. This motion is made pursuant to the Equal Access to Justice Act, 5 USC § 504. The EAJA provides that '[a]n agency that conducts an adversary adjudication shall award, to a prevailing party other than the United States, fees and other expenses incurred by that party ... , unless the adjudicative officer of the agency finds that the position of the agency was substantially justified or that special circumstances make an award unjust.' 1 Gr·een Aviation is highly instructive in this case. The FAA sought to civilly fine Green Aviation for having too many passengers on a plane. The ALJ dismissed the proceedings following a hearing. 2 Green Aviation filed for its fees and costs, and the ALJ found that it was the prevailing party. 3 The Court of Appeals affirmed that Green Aviation was the prevailing party in the proceeding because it met the test for prevaillng party:

1 SeeGreen Aviation Management Co., LLC v. F.A.A., 676 F.3d 200, 202 (C.A.D.C. 2012), quoting 5 U.S.C. § 504 (a) (1). 2 Id. at 201. 3 Id. at 201-202.(1) there must be a court-ordered change in the legal relationship of the parties; (2) the judgment must be in favor of the party seeking the fees; and (3) the judicial pronouncement must be accompanied by judicial relief. 4

The Court of Appeals then remanded Green Aviation for a determination of**~whether** the filing of the February 6, 2007 complaint against Green Aviation was substantially justified, and if not, to determine the amount of fees to which it is entitled." 5 The determination is to be made pursuant to 5 U.S.C. § 504(a) (1),**~unless** the adjudicative officer of the agency finds that the position of the agency was substantially justified or that special circumstances make an award unjust." There is no dispute that TGI prevailed on all allegations asserted against it in the Compliant. The Court found in favor of TGI. Thus, the only remaining question for this Court is whether the FAA's Complaint against TGI was substantially justified. TGI posits that the Court has already made the determination that the Complaint was not substantially justified in its ruling.

4 Id. at 203, quoting Turner v. Nat'l Transp. Safety Bd., 608 F.3d 12, 14 (D.C.Cir. 2010), applying Buckhannon Bd. & Care Home, Inc. v. West Virginia Dep't of Health & Human Res., 532 U.S. 598, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001)

. 5 Green Aviation, 676 F.3d at 205. In the Matter of TGI Freight Docket No. CP10NM0012 Page 2The decision in this matter found that the basis of the Complaint against TGI was not the law. 6 "The agency's analysis violates one of the fundamental interpretive canons of statutory construction

- that 'a statute should be construed so that the effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant.' 7 This Court also found that the FAA was placing a "broad, farreaching obligation" on TGI and shippers in general. 8 In fact, the Court found that "[t]he evidence in this case highlights the FAA's overreach." 9 The Complaint was anything but substantially justified. Further, the history of this case before the Complaint was filed demonstrates the FAA's overreaching. Initially, the FAA notified Parsons of the alleged violation on February 19, 2010,

as Parsons was the owner of the items shipper. 10 On February 26, 2010, TGI stepped forward and advised the FAA that TGI had handled the shipment and TGI would look into the matter. 11 On March 18, 2010, TGI sent the FAA a detailed letter setting forth precisely what had occurred with the shipment. 12 TGI advised that training for those involved was up to date and

6 Initial Decision at 7. 7 Id., quoting Corley v. U.S., 556 U.S. 303, 314 (2009). 8 I d. at 7. 9 Id. 10 See Exhibit A. 11 See Exhibit B. 12 See Exhibit C. In the Matter of TGI Freight Docket No. CP10NM0012 Page 3went to great lengths to establish the facts leading up to the shipping. 13 This should have been the end of the FAA's investigation. It was not. Instead of recognizing that the problem was with the manufacturer, the FAA notified TGI that it intended to seek a civil fine from TGI for $27,000. 14 As a direct result of this exorbitant fine, TGI sought representation. Through counsel, TGI responded to the proposed civil fine and requested an informal meeting with the FAA. 15 TGI proposed a meeting to discuss this matter with the FAA and bring Mr. Jack Peters, an expert in hazardous materials transportation, to explain why there was no violation of any regulation. 16 The informal meeting was scheduled and held. 17 The only result was that the FAA was willing to compromise its initial proposed civil fine of $27,000 to $15,000, still more than half the original fine. 18 This matter then ensued. The FAA overreached with the regulations in trying to require shippers with experience to have a higher standard of

care than is required under the regulations. Further, the FAA overreached in its attempts to fine TGI tens of thousands of

13 Id. 14 See Exhibit D. 15 See Exhibit E. 16 Id. 17 See Exhibit F. 18 See Exhibit G. In the Matter of TGI Freight Docket No. CP10NM0012 Page 4dollars because the FAA felt TGI should have known better. It

was the overreaching actions of the FAA that resulted in TGI needing legal counsel and incurring significant fees and costs. The Equal Access to Justice Act, 5 USC § 504, allows for TGI to

recover its fees and costs. Attached to this motion is the Affidavit of Counsel setting forth the fees and costs incurred in this matter. TGI incurred $20,318.00 in fees and $3,983.02 in costs as a direct result of this litigation. There can be no dispute that TGI was the prevailing party. Pursuant to 5 USC § 504, TGI is entitled to recover its fees and costs in this matter. TGI respectfully requests that the Court grant this request. DATED this 11th day of November 2013.

In the Matter of TGI Freight Docket No. CP10NM0012 Page 5 LAW OFFICE OF HOZU -N & MOBERLY Attorneys Freight By: 980601CERTIFICATE OF SERVICE I hereby certify that on the**~** day of November 2013, a true and correct copy of the foregoing was MAILED to the following: Original Plus 1 Copy Federal Aviation Administration 800 Independence Avenue, S.W. Washington, DC 20591 Attn: Hearing Docket Clerk, AGC-430 Wilbur Wright Building-Suite 2Wl000 One Copy Howard L. Martin, Jr. Regional Counsel, Office of Regional Counsel, AAL-7 Alaskan Region Federal Aviation Administration 222 West 7th Avenue #14 Anchorage, AK 99513-7587 Cheryl M. Jones, Sr. Attorney Office of Regional Counsel Alaska Region Federal Aviation Administration 222 West 7th Avenue #14 Anchorage, AK 99513-7587 The Honorable Richard C. Goodwin, Administrative Law Judge U.S. Department of Transportation Office of Hearings, M-20 1200 New Jersey Avenue, S.E. East Building, Ground Floor, Room El2-320 Washington, DC 20590

LAW**OF:;~** OF HOZUBIN & MOBERLY By: 

# c_d£2**l1~i2e.«** -- 9100/242/trial/post trial/Mtn for fees and costs

In the Matter of TGI Freight Docket No. CP10NM0012 Page 6**~------** . 

### !



# I \t F

### I 

# 0 U.S. Department ofTransportation Federal Aviation Administration

CERTIFIEDMAfir.C-RETURNRECEIPT REQUESTED

Parsons Corporation Attn; CharlesHarrington CEO I00 WestWalnutStreet Pasadena, CA 91124

Dear Mr.Harrington: Letterofinvestigation FileNumber: 2010NM730038 ANCHORAGE AVIATION SECURITY and HAZARDOUS MATERIALS ZllWest1i' Avenue #14 Anqrorage, Alasko 99513-7587 Tel: 907) 271-5003 Fax: (907} 271-4933

February 19, 2010 On February 19, 2010, the Federal Aviation Administration (FAA) Office ofSecurityandHazardous Materials (ASH)branch officeinAnchorage, Alaska wasnotified ofhazardousmaterial discovered by**th~** AlaskaAjrlines (ASAA) stationinAnchorage (ANC), AK.

### Speeific~lly,ASAArep!}rie~thatonFebruary 19, 2010, your company'sAnchorage office**qffer~** a siXpiece shipment onAirWaybill#3371 9873 to ASAA for airtransportation as cargo 

### from ANC to Ketchikan, AK. Duringthe screeningofthis freight, undeclaredhazardous materials, fourboxes, each containing.twelve 9.3 ouncetubes ofUnitexPro-Poxy400Adhesive (Adhesive, Class 3, UN1133, PGIII), were discovered. ·The FederalAviation Administration isconducting aninvestigation intothis matterand preliminary evidenceindicatesthatyoumayhave violated the FederalHazardo)IS MaterialscRegulations, 49 Code of Federal Regulations

.. · We wishto offeryou the opportunityto furnish explanatoryinformationreflectingextenuating or mitigating circumstances regardingthese alleged violations. Yourwrittenreply will beneeded withinten (10) working days ofreceipt ofthis letterto resolve this matterpromptly. Pleaseinclude inyollr reSponse, the hazardous material training records for everyone involved withthis shipment. lfno respoose isreceived, this case will be processed withoutthebenefitofyourreply. Sincerely,

i

# ll£fi;t_· .·**A~L.DciG** HaZardous Materials Specialist ·• HazardousMaterials Branch Anchorage OfficePh: 907.522.3088 • Fax: 907.562.6295



### Anchorage Aviation Security and Hazardous Materials 222 West 7thAvenue #14 Anchorage, AK 99513-7587

File# 2010NM730038 Dear Mr. 

### Deitz: February 26, 2010 Please accept this letter inreference to the above file involving theAlaska Airlines shipment ofPro-poxy 400 air 

### waybill number 3371-9873 onFebruary 19,2010. Because Tgi Freightrepresents Parsons Corporation as a Dangerous Goods Agent for their air shipments I request that all correspondence regarding thismatter be directed to us. I am currently investigating the details involved with this shipment and at thistime am not well enough informedto make comment. I will be traveling for the next 17 days returning to Anchorage onMarch 16th. Please allow me additional time to gather information and respond to yourrequest. Atthattime I will provide a detailed account for our actions as well as training documentationfor those involved. Sincerely,

Todd Clark President Tgi Co. Inc.



### 3 P.O. Box 221049, Anchorage AK, 99522-1049 4000 W. 50 1h Ave., '.9J( Anchorage, AK 99502Ph: 907.522.3088 ·Fax: 907.562.6295



### March 18, 2010 Anchorage Aviation Security and Hazardous Materials 222 West 7th Avenue #14 Anchorage, AK 99513-7587

File# 2010NM730038 Dear Mr. 

### Deitz: Please accept this letter as an explanation ofour actions regarding the Alaska Airlines shipment ofFebruary 19th, 2010 airway bill# 027-3371-9873. Tgi Freight has been involved as a dangerous goods agent for Parsons Corporation dating back to June of2009. Attached you will find documentation for a fire extinguisher that we shipped on air waybill# 027-3371-9825 (lATA) and ORM-D materials (CFR-49) that we shipped on air waybill 027-3371-9740. These two shipments were tendered to us at the same time as the Pro-poxy 400 on air waybill 027-3371-9873. Had Parsons requested any other airline, all packages mentioned above would have been tendered to the airline on one air waybill. The shipments were divided onto separate bills as a requirement ofAlaska Airlines. I am also including training records for JeffJueneman. Jeffis employed at Tgi Freight as our Warehouse Manager I Hazardous Materials Specialist and is the person that prepared this shipment. It

### is our standard procedure to inspect each package for any indication of hazardous material. In this case Jefffirst identified the fire extinguisher. He marked and labeled it and logged it for documentation. Next he identified cartons ofconsumer commodities and cartridges power device. He confirmed that the inner containers ofthe liquids met the requirements of 173.27, and labeled each as ORM-D-Air. Both were logged for documentation.

P.O. Box 221 049, Anchorage AK, 99522-1049 4000 W. 50'h Ave., '6A, Anchorage, AK 99502Continued from page 1

When identifYing the Pro-poly 400 he first examined the outside ofthe factory carton. The carton appeared to Jeffto be a shipping container. Nowhere onthe carton was any indication ofhazardous material. There was no UN number, proper shipping name or hazard labels. Closer examination oflabels on the cartonrevealed no consumer warnings that would indicate the contents being hazardous. (See attached pictures). As an additional precaution Jeffopenedthe box to examine the inner containers for any consumer warnings thatmight indicate that the productmay be flammable, corrosive or toxic. Typical consumer warnings that we look for are "Keep away from heat or flame", "Do notuse in enclosed areas", "Fumes may ignite", "Contact with skin or eyes may cause burns or blindness", "Poison, keep out ofthe reach ofchildren". Many manufacturers now choose to print miniatures ofthe diamond shapedhazard labels on each inner container. Nowhere onthe inner containers was there even the slightest indicationthat the productpresented any danger to the user. Atthis stage Jeffwas confidentthat theproductwas non regulated as a hazardous material and identified it as such onthe air waybill. Because he found no warnings like those mentioned above, he was satisfied that a search for a material safety data sheet was unnecessary. We have since thenprinted a MSDS for the Pro-poxy andhave discovered a discrepancy. In section 5 the MSDS lists theproduct as having a flash point of65 degrees Fahrenheit. However, in section 14 the MSDS contradicts itselfby stating that the product is a packing group III flammable. In an attemptto determine thatthe cartons that wereceived and shipped were a shipping container, I called Unitex 

### in Kansas City, MO Phone# (816-231-7700). I first spoke with Hulian inthe chemistry department. He confirmedthat the flashpoint for part A is 65 degrees F and went onto explainthatthey list theproduct as a packing group III. He then directed me to Jason Harris. Jason made reference to 173.121 (b) (1) (i) (ii) (iii) to explainthe reason for a 65 degree packing group III. He thenprovided the following example as a typical shipment ofPropoxy 400. The unmarked white display boxes (aspictured in this packet) are stacked ona pallet then stretch wrapped. This confirms that the white cartons that we shipped are an outer container as described in 171.8.

2Continued from page 2

The product is then listed onthe bill oflading as Adhesive, Un 1133, pg III. Itis Unitex's incorrect beliefthat 173.150 (b) 172.301 (a) (I)relieves them from all marking and labeling requirements for surface shipment. He added that a smaller shipment ofone or two ofthe same cartons wouldreceive a Consumer commodity label. Ourresearchhas determined thatthe manufacturer does ship this productfrom their facility in the packages as we received them. In addition, they have failed to markthose outer packages as required by 172.300 and 172.301. These facts combined withthe lack ofany consumer warning offlammability onthe inner containers led us to ship the productas a nonregulated item. Itis our stance at Tgi Freight that we acted accordingly based on the information provided us onthe manufacture's shipping containers. Hadthe cartons beenmarked as required or the inner containers marked with a flammable warning we would have followed our standard procedure and obtained a material safety data sheet. We would have then declared this product and includedit onthe hazardous material declaration accompanying air waybill# 027-3371-9740. I hope that this correspondence adequately explains the reasons for our actions involving this particular shipment. Ifi canprovide any further information please feel free to contactme. Sincerely, 

# r;**c),~** 

# Ce'MLTodd Clark President, Tgi Co. Inc

3U. S. Department ofTransportation Federal Aviation Administration

Case No. 20IONM730038



### JUL - 8 2010 Alaskan Region

CERTIFIED MAIL- RETURN RECEIPT REQUESTED

President TGIFREIGHT 4000 W. 50thAvenue, Suite 3 Anchorage,AJC 99502 222W. 7th Avenue#l4 Anchorage, Alaska 99513-7587 PH: (907) 271-5273 FAX: (907)271-2800 Email: Cheryl.Jones@faagov



### NOTICE OF PROPOSED CIVIL PENALTY

Itappears onthe basis ofourreport ofinvestigationthat: I. On oraboutFebruary 19, 2010, TGI Freight (TGI) offered undeclared hazardous material, as part ofa six (6) piece shipment, to AlaskaAirlines (ASAA) for air transportation from Anchorage, Alaska, to Ketchikan, Alaska, on ASAA air waybill#027-3371 9873. The block indicatingthe shipment does notcontainhazardous materials was initialed. 2. Duringthe screeningprocess, ASAApersonnel discovered thepresence offour boxes, each ofwhich containedtwelve (12) 9.3 ouncetubes ofUnitexPro-Poxy400 Adhesive. 3. Unitex Pro-Poxy400 Adhesive is classified as a hazardous material under§ 172.101 ofthe United States Department ofTransportation Hazardous Materials Regulations (HMR), 49 C.F.R."Chapter I, Subchapter C (Parts 171-80). Its proper shippingname is "Adhesives." It is inHazard Class 3, Packing group III, andhas an assigned identificationnumber of UN1133. 4. Atall times mentioned herein, the shipment was notaccompaniedby a Shipper's Declaration for Dangerous Goods.5. TGI offered the above-described shipment ofhazardous material fortransportationby air whenthe shippingpapers did not containtheproper shipping name ofthe hazardous 2

material, the hazard class ofthehazardous material, the assigned identification number ofthe hazardous materialprecededby "UN" or "NA"

# as applicable, andthe assignedpacking group number prescribed for the hazardous material. 6. TGI offeredthe above-describedhazardous material for transportation withoutincludingin the shipping papers an emergencyresponse telephone number as prescribedinSubpart G of Part 172 ofthe HMR. 7. TGI offered hazardous materials for transportationby airwhen itdid notcertify that each hazardous material was inaccordance withthe HMRbyprintingthe certification set forth in § 172.204(a) or (c)(l) onthe shipping papers. 8. TGI offeredthe abovecdescribed hazardous material for transportation by air anddid not providetwo (2) copies oftherequired shipper's certification. 9. TGI offeredhazardous materials for transportati0nby air without adding to the certification required by § 172.204( c)(3) ofthe HMRthefollowing statement: I declare that all ofthe applicable airtransportrequirements have beenmet. 10. TGI offered the above-described hazardous material whenthe external boxes were not marked or labeled inany mannerthat wouldindicatethe hazardous nature ofthe contents contained therein. 11. TGI offeredthe above-described shipmentfor transportationby airwhen the externalboxes were not marked withthe proper shipping name lmd the assigned identificationnwnber ofthe hazardous material containedtherein, and withouttherequired markings, inEnglish, and printed onor affixed tothe surface ofthe boxes.

Basedonthe foregoing facts and circumstances, TGIviolatedthe following Departmentof TransportationHazardous Materials Regulations (HMR): (a) Sectio&**11l~in** that TGI offered hazardous material for transportation incommerce withinthe United Stateswhen eachmaterial wasnotproperly classed, described, marked, and labeled for shipment as requiredbythe HMR. (b) Section 172.200( a) inthat TGI offeredhazardous material for transportation whenthe hazardous material was not described onthe shipping paperin the manner prescribed in Subpart C ofPart 172 ofthe HMR.(c) Section 172.201(d) inthatTGIofferedhazardous material for transportation without including inthe shippingpapers an emergencyresponsetelephone number

# as prescribed in Subpart G ofPart 172 ofthe HMR. 3

(d) Section 172.202( a)(l) inthat TGI offeredhaZa.rdous material for transportationwhenthe required hazardous material description ontl).e shippingpapers didnot include the proper identificationnumberfor the material as shownin Column (4) ofthe§ 172.101table. (e) Section 172.202(a)(2) inthat TGI offeredhazardous material for transportation whenthe required shippingpapers did notincludethe proper shipping name prescribed for the material in Column (2) ofthe§ 172.101 table. (f) Section 172.202(a)(3) inthatTGI offeredhazardous material for transportation whenthe required hazardous material description did notinclude the hazard class or division numberprescribed for the material, as showrj. in Column (3) ofthe§ 172.101 table. (g) Section 172.202(a)(4) inthatTGI offeredhazardous material fortransportationwhenthe required hazardous material description did not include the assigned packing group in Roman numerals, as designated forthehazru;dous material inColumn (5) ofthe § 172.101 table. (h) Section 172.204(a) or ( c)(I)inthatTGIoffetedhazardous material for transportation without printing theproper certificationontlile shippingpapers as required by these sections. (i) Section 172.204( c)(2) inthatTGI offeredhazardous material to an aircraft operator for ·transportationby air and didnotprovidetwocopies ofthe required shipper's certification. Q) Section 172.204(c)(3) inthatTGI offeredhaZardous material fortransportation by air without adding to the certificationrequired by§ 172.204(a)or (c)(l)the following statement: I declare thatall ofthe applicable airtransportrequirements havebeenmet. (k) Sections 172.300 and 172.30l(a) inthatTGl!offeredhazardous material for transportation whenthe package was notmarked withtheproper shippingnames and identificationnumbers for its contents. (I) Section 172.400(a) inthatTGI offered a package containinghazardous material for transportation whenthe package was notproperly labeled as specified in § 172.101. (m)Sections 172.600(c)(l) and (c)(2) inthatTGI offeredhazardous material for transportation whenthe emergencyresponseinformation, including emergency response telephone number, was notimmediately available for use at all times.In accordance with Section 5123(a) ofChapter 51,Title49 oftheUnited States Code of Transportation, [49 U.S.C. 

### § 5123(a)], TGIis liablefor a civilpenalty ofnotlessthan $250 ($450 for trainingviolations), nor greater than $5o,qoo (or $100,000 for violationsresultingin death, serious illness, or severe injuryto anyperson; or substantial destruction ofproperty), for eachviolation oftheregulations. Afterreviewing otrr investigative file, we proposeto assess a civilinthe amount of$27,000 forthisviolation. · 

### 4

Enclosedis information on TGI's options inresponding to this notice. The options include participating inaninformal conferencewithanF

### M attorney and submissionofinformationto the FAA for consideration. TGI must submit, inwriting, its choice ofthe alternatives explained onthe enclosed information form, onorbefore 30 days afteryoureceive thisNotice. IfTGI fails to submitits choicewithinthattime, itwillhaveno furtherrightto participate in the informal procedures. Please direct all communication inthis mattertothe,undersigned, Office ofRegional Counsel, AAL-7, 222 West 7th Avenue, #14, Anchorage, Alaska 99513-7587. HOWARD 

### L. MARTIN, JR Regional Counsel

By:

### ~~~~--~---­ Cheryl 

### M. Jones SeniorAttorney Enclosures: Information Sheet Reply Form FAR 13.16 and Subpart G ofPart 13REBECCAJ. HOZUBIN MARK E. WJLKERSON, OfCounsel WALLACE H. TETLOW JIM C. WILKSON 

# vv'11kerson Hozubin 310 K Street, Suite 405 Anchorage, Alaska 99501

August 6, 2010

Cheryl M. Jones, Esq. Howard L. Martin, Jr., Esq. Federal Aviation Administration U.S. Department of Transportation 222 West 7th Avenue, #14 Anchorage, AK 99513-7587 Re: File # 2010NM730038 Our File No. 9100.242

Dear Ms. Jones and Mr. Martin: Telephone: (907) 276-5297 Facsimile: (907) 276-5291

Hand Delivered



### My firm has been retained to represent TGI Freight regarding the**above~listed** 

### matter. Please find enclosed one of my business cards. Also enclosed is our Reply to Notice of Proposed Civil Penalty (Hazardous Materials). 

### We request to submit evidence and information demonstrating that a violation of the regulations did not occur and a penalty is not warranted. Additionally, we request an informal hearing with you. This letter is meant to constitute the information demonstrating that a violation of the regulations did not occur, and a penalty is not warranted. The evidence we propose to provide you with is the testimony of Mr. Todd Clark, President of TGI Freight, and Mr. Jack Peters, Owner of Hazmat Transportation Services. TGI Freight has been a dangerous goods agent for Parsons Corporation since June 2009. Regarding the shipment at issue, airway bill 027-3371-9873, we have previously submitted the following: (1) airway bill 027-3371-9825 (IATA) for a fire extinguisher; (2) airway bill 027-3371-9740, ORM-D materials (CFR-49); and photographs. These two shipments were tendered to TGI Freight at the same time as the Pro-poxy 400 on the. airway bill at issue.

### Cheryl M. Jones, Esq. Howard L. Martin, Jr., Esq. Page 2 of 4 August 6, 2010

On or about February 19, 2010, TGI Freight received, along with other items, four manufacturers' combination packaging (shipping containers) of Pro-poxy 400 Epoxy resin. None of the packages displayed either a consumer commodity label as required by CFR-49 172.316 (a) or limited quantities markings as required by 172.315. Further inspection found that the inner containers did display a WHMIS Class D, division 2 symbol that warns of possible poisonous reactions to a person who is repeatedly exposed to small amounts, but they did not display the WHMIS Class B symbol for flammable/combustible material. In other words, the only marking indicated that the material may be irritating to the skin after prolonged exposure. This does not make it a hazardous material. It has been TGI Freight's past experience that the presence of the Class D, division 2 symbol is a consumer warning and does not equal DOT hazard class. Because of the absence of the required information, TGI Freight appropriately considered the Pro-poxy 400 to be a non-regulated item and shipped it as such. TGI Freight appropriately relied on the information provided by the manufacturer of the product. The outer packaging was not marked with a proper shipping name, as required by 172.300/172.301, or UN/NA number in a diamond, as required by 172.315, for limited quantities by non-air transport. It was also not marked with Consumer Commodity, ORMD. As shown by pictures already provided by TGI Freight, there are no markings or labels of any kind on the packaging for surface shipment. This is in direct violation of 49CFR. Unitex, the manufacturer, has taken the position that because of the small quantity in the 9 oz tubes, they do not require marking, labeling, or placement of WHMIS symbols. This is despite the fact that our research has shown that the exact same product in larger 28 oz tubes is labeled with multiple flammable warnings on the tubes. The fault for what occurred lies with the manufacturer and not TGI Freight.Cheryl M. Jones, Esq. Howard L. Martin, Jr., Esq. Page 3 of 4 August 6, 2010

This raises a concern for us as to why the Pipeline and Hazardous Materials Safety Administration has not been contacted regarding the manufacturer's conduct, since it is clear that the manufacturer does not know the regulations well enough to properly ship their own products or advise those inquiring about shipping their products. The manufacturer's response leads to concerns about how many shipments are being made daily, whether by highway, rail, water, or even possibly by aircraft, that are improper due to the incorrectness of the marking of the material by the manufacturer. Additionally, there has been some criticism of TGI Freight concerning this shipment for not consulting a material safety data sheet. Our response to this is that the material safety data sheet is an OSHA form referenced in CFR-29. We are unable to find reference to it in CFR-49 and, therefore, do not see a requirement that TGI Freight refer to it as part of this process. We believe TGI Freight acted appropriately based on the information provided to it on the manufacturer's shipping containers. Had the cartons or even inner containers been properly marked, labeled, or embossed with the WHMIS symbols, as required, TGI Freight would have properly declared them. TGI Freight did not knowingly violate any provision of USCA, chap. 51. Finally, we request that Mr. Howard Martin be present at the informal hearing and involved in this matter. The allegations and proposed fine are significant. Further, the concerns regarding the manufacturer's improper conduct also warrant Mr. Martin's involvement. We certainly hope that this information we are providing now, along with Mr. Clark's and Mr. Peter's testimony at our informal meeting, will clear this matter up. We look forward to hearing from you.Cheryl M. Jones, Esq. Howard L. Page 4 of August 6,

RJH/clm Enclosure Martin, 4 2010

cc: Mr. T. Clark 9100/242/Corresp/Jones.OOl Jr., Esq.

Respectfully, WILKERSON HOZUBIN

RREPLY TO NOTICE OF PROPOSED CIVIL PENALTY (HAZARDOUS MATERIALS) To: Federal Aviation Administration Office ofthe Regional Counsel Federal Aviation Administration 222 West 7rn Ave. #14 Anchorage, AK 99513-7587 Subject: Notice ofProposed Civil Penalty (HM) Date: August 3, 2010

Case No.: 2010NM730038 In reply to your Notice ofProposed Civil Penalty, I elect to proceed as indicatedby my check mark beside the numbered paragraph(s) below: I. [ ] I hereby submitthe amount ofthe proposed civil penalty with the understanding that an order assessing a civil penalty will be issued in that amount without further notice. I UNDERSTAND THAT I AM WAIVING MY RIGHT TO A HEARING IF MY OFFER IS ACCEPTED. 2. [ ] I have paid the proposed civil penalty with a credit card over the Internet at the following website: http://www.pay.gov. I understand that an order assessing a civil penalty will be issued in the amount without further notice. I ALSO UNDERSTAND THAT I AM WAIVING MY RIGHT TO A HEARING. 3. [X] lhereby submit evidence and information demonstrating that a violation ofthe regulations did not occur as alleged or thatthe amount ofthe penalty is not warranted by the circumstances.· 4. [ ] I hereby submit information and records showingthat I am financially unable to pay the proposed civil penalty orthat payment ofthe penalty would prevent me from continuing in business. 5. [ ] I hereby request that the proposed civil penalty be assessed 

### in the amount of $ , and I submit the reasons for the reduction ofthe proposed amount. My request constitutes my agreement that ifthis offer is accepted by the FAA, an Order Assessing Civil Penalty in the amount I have specified may be issued without further notice. MY REQUEST ALSO CONSTITUTES MY AGREEMENT THATI HAVE WAIVED MYRIGHT TO A HEARING. IF THEFAA DOES NOT ACCEPT THIS OFFER, HOWEVER, MY RIGHT TO A HEARING IS NOT AFFECTED. 6. a. [ ] I hereby request a telephonic informal conference to discuss this matter with an FAA attorney. (An attorney will call you atthe telephone number you provide here: ( )--,----,-- You will be provided at least 2 weeks advance notice ofthe date and time ofthis conference.) NOTE: Ifyou chooseto discuss this matter informally by telephone, you shouldprovide any documents or other information you wishto have considered on your behalfbefore the date of the informal conference.



### -OVER-

# """"''"~'•" .. ··.. ATTACHMENT 1**~hiY\Iil -~--**  ----**~. @I'~** b. [X] I hereby request an in-person informal conference with an FAA attorney to discuss this matter at Alaska Region (choose an FAA office from the attached list).

c. [ 

## J I hereby request an in-person informal conference with art FAA attorney to discuss this matter at . I am requesting an in-person informal conference at this location because

. I have also indicated an alternate location from the attached list**--~~--~~~----~·** under item 6b in the event the FAA is unable to grant my request under this option. 7. [ ] I hereby request a hearing in accordance with Subpart G ofPart 13 ofthe Federal Aviation Regulations with the understanding that a Complaint will be filed. I request that the ' hearing be held in . I am sending this request both to the FAA ' attorney at the Office ofthe Regional Counsel, 222 West 

### 7'h Ave. #14, Anchorage, AK 99513- 7587, and to the Hearing Docket, Federal Aviation Administration, 800 Independence Avenue, SW., Room 924A, Washington, DC 20591, Attention: Hearing Docket Clerk. Signature: Name: Address: 4000 West 50th Ave. Suite #3 Anchorage, AK 99502 Telephone: 907-522-3088 Email: toddc@tgifreight.com

[X] I request that future documents in this case be sent to my representative: Name: Rebecca Hozubin, Wilkerson Hozubin Address: 310 K Street, Suite 405 Anchorage, AK 99501 Telephone: 907-276-5297 Email: rebecca@wilkersonlaw.netU.S. Department ofTransportation Federal Aviation Administration



### SEP 1 7 2010

VIA EMAIL

Rebecca J. Hoz11bin, Esq. WILKERSON HOZUBIN 310 K Street, S11ite 405 Anchorage, AK 99501 rebecca@wilkersonlaw.net Re: TGI Freight FAA Case No. 2010NM730038 Alaskan Region Office ofthe Regional Counsel

NOTICE OF INFORMAL CONFERENCE 222 W. 7th Avenue #14 Anchorage, Alaska 99513-7587 Ph: (907) 271-5273 Fax (907) 271-2800 Cheryl.Jones@faa.gov

This is to advise that the undersigned will be at the Federal Aviation Administration, Office of the Regional Counsel, 222 West 7th Avenue, Anchorage, Alaska, at 1:30 p.m. ADT September 23, 2010, to conductthe informal conference you requested concerning the charges in ourNotice dated July 8, 2010. At this conference, you will have the opportunity to be heard as to why the proposed action should not be taken and to present any facts you wish considered. This conference is the opportunity to be heard which is granted by§ 13.16 ofthe Federal Aviation Regulations. HOWARD L. MARTIN, JR. Regional Counsel

By: Cheryl M. Jones Senior Attorney Enclosure: AFOB 3'd Floor MapU. S. Department ofTransportation Federal Aviation Administration 

### OCT 1 4 Alaskan Region Office ofthe Regional Counsel

CERTIFIED MAIL-RETURN RECEIPT REQUESTED

Rebecca J. Hozubin, Esq. Wilkerson Hozubin 310 K Street, Suite 405 Anchorage, AK 99501 Re: TGI Freight Case No. 2010NM730038 Your File No. 9100.242 222 W. 7thAvenue#l4 Anchorage, Alaska 99513-7587 PH: (907) 271-5273 FAX: (907) 271-2800 Cheryl.Jones@faa.gov**0[ ~,'**  1. Ill 

### ·oo,-,**~vil/ll**

FINALNOTICE OF PROPOSED CIVIL PENALTY

On July 8, 20l0, you were advised through a Notice ofProposed Civil Penaltythat the FAA proposed to assess a civil penalty inthe amount of$27,000. Information presented at the informal conference held September 23, 2010, demonstrated that you hadrelied onthe manufacturer to correctly label itsproducts. This resulted in a recalculation ofthe civil penalty amountproposed. After considering all the evidence inthis matter, it appears that: l. On or about February 19,2010, TGI Freight (TGI) offeredundeclared hazardous material, as part ofa six (6) piece shipment, to Alaska Airlines (ASAA) for air transportation from Anchorage, Alaska, to Ketchikan, Alaska, on ASAA air waybill# 027-3371 9873. The block indicating the shipment does not containhazardous materials was initialed. 2. During the screening process, ASAApersonnel discovered the presence offour boxes, each ofwhich containedtwelve (12) 9.3 ounce tubes ofUnitex Pro-Poxy 400 adhesive. 3. Unitex Pro-Poxy 400 Adhesive is classified as a hazardous material under § 172.101 ofthe United States Department ofTransportation Hazardous Materials Regulations (HMR), 49 C.P.R. Chapter I, Subchapter C (Parts 171-80). Its proper shipping name is "Adhesives." Itis inHazard Class 3, Packing group III, and has an assigned identificationnumber of UN1133. 2

4. At all times mentioned herein, the shipmentwas not accompanied by a Shipper's Declaration for Dangerous Goods. 5. TGI offered the above-described shipment ofhazardous material for transportationby air when the shipping papers didnot containthe proper shipping name ofthe hazardous material, thehazard class ofthe hazardous material, the assigned identificationnumber ofthe hazardous material preceded by "UN" or "NA" as applicable, and the assignedpacking group number prescribed for the hazardous material. 6. TGI offered the above-describedhazardous material for transportation without including in the shipping papers an emergency response telephone number as prescribed in Subpart G of Part 172 ofthe HMR. 7. TGI offered hazardous materials for transportation by air when it did not certifY that each hazardous material was in accordance withthe HMRbyprinting the certification set forth in § 172.204(a) or (c)(!) onthe shipping papers. 8. TGI offeredthe above-described hazardous material for transportationby air and did not provide two (2) copies ofthe required shipper's certification. 9. TGI offered hazardous materials for transportation by air without adding to the certification requiredby§ 172.204(c)(3) ofthe HMRthe following statement: I declare that all ofthe applicable air transport requirements have beenmet. 10. TGI offeredthe above-described hazardous material whenthe external boxes were not marked or labeled in any mannerthat would indicate the hazardous nature ofthe contents contained therein. 11. TGI offered the above-described shipment for transportation by air whenthe external boxes were notmarked with the proper shipping name andthe assigned identificationnumber ofthe hazardous material containedtherein, and without the required markings, in English, and printed on or affixed to the surface ofthe boxes. By reason ofthe foregoing facts and circumstances, TGI violated the following Department of Transportation Hazardous Materials Regulations: (a) Section 171.2(e) in that TGI offered hazardous material for transportation in commerce within the United States when each material was notproperly classed, described, marked, and labeled for shipment as required bythe HMR.(b) Section 172.200(a) inthat TGI offered hazardous material for transportation whenthe hazardous material was not described onthe shipping paper inthe marmer prescribedin Subpart C ofpart 172 ofthe HMR. (c) Section 172.201(d) in that TGI offered hazardous material for transportation without including inthe shipping papers an emergency response telephone number as prescribed in Subpart G ofPart 172 ofthe HMR. 3

(d) Section 172.202(a)(l) inthatTGI offered hazardous material for transportation when the required hazardous material description onthe shipping papers did not include the proper identificationnumber for the material as shown in Column (4) ofthe § 172.101 table. (e) Section 172.202(a)(2) in thatTGI offered hazardous material for transportation whenthe required shipping papers didnot include the proper shipping name prescribed for the material in Column (2) ofthe § 172.101 table. (f) Section 172.202(a)(3) inthat TGI offered hazardous material for transportation when the required hazardous material description did not include the hazard class or division number prescribed for the material, as shown in Column (3) ofthe § 172.101 table. (g) Section 172.202(a)( 4) inthat TGI offered hazardous material for transportation when the required hazardous material description did not include the assigned packing group in Roman numerals, as designated for the hazardous material in Column (5) ofthe § 172.101 table. (h) Section 172.204(a) or (c)(!) in thatTGI offered hazardous material for transportation without printingthe proper certification onthe shipping papers as required by these sections. (i) Section 172.204(c)(2) inthat TGI offered hazardous material to an aircraft operator for transportationby air and didnotprovide two copies ofthe required shipper's certification. (j) Section 172.204(c)(3) in that TGI offered hazardous material for transportationby air without adding to the certificationrequired by§ 172.204(a) or (c)(!) the following statement: I declare that all ofthe applicable air transport requirements have been met. (k) Sections 172.300 and 172.301(a) inthat TGI offered hazardous material for transportation when the package was not markedwiththe proper shipping names and identification numbers for its contents. (!) Section l72.400(a) inthat TGI offered a package containing hazardous material for transportation when the package was notproperly labeled as specified in § 172.101.(m)Sections 172.600(c)(l) and (c)(2) in thatTGI offered hazardous material for transportation when the emergency response information, including emergency response telephone number, was not immediately available for use at all times. 4

In accordance with Section 5123(a) ofChapter 51, Title 49 ofthe United States Code (49 U.S.C. 

### § 5123(a)), you are liable for a civil penalty ofnot less than $250 ($450 for training violations), nor greater than $50,000 (or $100,000 for violations resulting in death, serious illness, or severe injury to any person, or substantial destruction ofproperty), for eachviolation ofthe regulations. By reason ofthe foregoing facts and circumstances, we propose to assess a civil penalty inthe amount of$15,000. Unless you mail or personally deliver your request for a hearing, in writing, inthis matter on or before 15 days after youreceive this Final Notice, we will issue an Order Assessing Civil Penalty, and you will have no further right to a hearing. Ifyou do not submit a written request for a hearing, you must pay the proposed civil penalty. Your request for ahearing mustbe sent to the Hearing Docket, Federal Aviation Administration, 800 Independence Ave., SW, Washington, DC 20591, Attn: Hearing Docket Clerk, AGC-430, Wilbur Wright Building-Suite 2Wl000, and a copy mustbe sent to the undersigned FAA attorney. Your request mustbe dated and signed, in accordance with § 13.16 ofthe Federal Aviation Regulations (14 C.F.R. § 13.16), sent to you with theNotice ofProposed Civil Penalty. You may paythe proposed penalty by submitting a check or money order payable to the Federal AviationAdministration to the undersigned. 

### Inthe alternative, you may pay your civil penalty with a credit card over the Internet. To pay electronically, visit the web site at http://www.pay.gov. Under the SearchPublic Forms option type in "FAL-FINEl." You must then complete therequested information and click "Continue." You will then be directed to enter your credit card or bank account debit information. To use the bankaccount debityou will need your bank routing number, account number, and checknumber. Ifyou pay electronically, notify the undersigned that such a paymenthas been made. HOWARD L. MARTIN, JR. Regional Counsel

By: Cheryl M. Jones Senior Attorney

cc: AAL-750

### U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS WASHINGTON, DC In the Matter of:

TGI FREIGHT )FAA Docket No. CP10NM0012 )DMS NO. FAA-2010-1079

________________________________)Judge RICHARD C. GOODWIN

AFFIDAVIT OF REBECCA J. HOZUBIN IN SUPPORT OF MOTION FOR ATTORNEY FEES AND COSTS



### STATE OF ALASKA ss. THIRD JUDICIAL DISTRICT REBECCA J. HOZUBIN, being first duly sworn upon oath, states as follow: 1. I am in all respects competent to make this affidavit. Unless otherwise indicated, all statements in this affidavit are based upon my personal knowledge. 2. The Law Office of Hozubin & 

### Moberly are attorneys of record for TGI in the above-listed matter. 3. This affidavit is being submitted in support of TGI's motion for fees and costs, made pursuant to 5 USC§ 504. 4. As set forth in the motion, it is TGI's position that the FAA's Complaint in this matter was not substantially justified and, therefore, TGI should be reimbursed for its fees and costs in this matter.5. TGI incurred the following: Attorney and paralegal fees from 7/27/10

- 10/26/10 (pre-Complaint): $3, 439. 

### so 1 Attorney and paralegal fees from 11/17/10- 6/7/13 (post-Complaint): $16,878.50 2 Total Fees: $20,318.00 Costs: Courier fees $89.50 Research fees $134.55 Photocopy fees In house $415.50 Outside service $337.04 Postage $84.40 Federal Express $48.34 Deposition costs J. Dietz $457.75 J. Gaytan $129.75 Jack Peters fees $2,285.19 3 Total Costs: $3,982.02

1 This was 19.6 hours of attorney time at $175 per hour and .1 hours of paralegal time at $95 per hour. 2 This was 92 hours of attorney time at $175 per hour, .5 hours of attorney time at $170 per hour, and 7.3 hours of paralegal time at $95 per hour 3 This includes $1,875.00 in fees and $410.19 in costs. In the Matter of TGI Freight Docket No. CP10NM0012 Page 2

### 6. If the Court would like to review a copy of the billings in camera, 

### TGI will produce the same for the Court. FURTHER AFFIANT SAYETH NAUGHT. 

# r DATED this 

# /1 day of November 2013.**F..e'bec~** J. 1 

### SUBSCRIBED AND SWORN to \"- 

### before me this

___**TI""~** 

### November 2013. day of

Notary in and for**A1~ska** 

### My commission expires:

### o)lt;~\<J

In the Matter of TGI Freight Docket No. CP10NM0012 Page 3CERTIFICATE OF SERVICE I bereby certify that on the 

### J1__ day of November 2013, a true and correct copy of the foregoing was MAILED to the following: Original Plus 1 Copy Federal Aviation Administration 800 Independence Avenue, S.W. Washington, DC 20591 Attn: Hearing Docket Clerk, AGC-430 Wilbur Wright Building-Suite 2W1000 One Copy Howard L. Martin, Jr. Regional Counsel, Office of Regional Counsel, AAL-7 Alaskan Region Federal Aviation Administration 222 West 7th Avenue #14 Anchorage, AK 99513-7587 Cheryl M. Jones, Sr. Attorney Office of Regional Counsel Alaska Region Federal Aviation Administration 222 West 7th Avenue #14 Anchorage, AK 99513-7587 The Honorable Richard C. Goodwin, Administrative Law Judge U.S. Department of Transportation Office of Hearings, M-20 1200 New Jersey Avenue, S.E. East Building 1 Ground Floor, Room E12-320 Washington, DC 20590

In the Matter of TGI Freight Docket No. CP10NM0012 Page 4

# -r

### U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS WASHINGTON, DC In the Matter of: )



### TGI FREIGHT ) 

### )FAA Docket No. CP10NM0012 )OMS NO. FAA-2010-1079

______________________________)Judge RICHARD C. GOODWIN ORDER GRANTING MOTION FOR FEES AND COSTS 

### Having reviewed TGI Freight's (hereinafter "TGin) Motion for Fees and Costs, and any opposition thereto, I find that TGI is the prevailing party in this matter and that, pursuant to 5 USC § 

### 504, TGI is entitled to request fees and costs. Green Aviation Management Co., LLC v. F.A.A., 676 F.3d 200, 202 (C.A.D.C. 2012). I further find that the FAA was not substantially justified in bringing the Complaint, nor were there any special circumstances to make an award unjust. As such, it is hereby ordered that the FAA is to pay TGI the following: Fees: Costs:

DATED this day of

________________, 2013.

Honorable Richard C. Goodwin U.S. Administrative Law JudgeCERTIFICATE OF SERVICE I**~ereby** certify that on the**~** day of November 2013, a true and correct copy of the foregoing was MAILED to the following: Original Plus 1 Copy Federal Aviation Administration 800 Independence Avenue, S.W. Washington, DC 20591 Attn: Hearing Docket Clerk, AGC-430 Wilbur Wright Building-Suite 2Wl000 One Copy Howard L. Martin, Jr. Regional Counsel, Office of Regional Counsel, AAL-7 Alaskan Region Federal Aviation Administration 222 West 7th Avenue #14 Anchorage, AK 99513-7587 Cheryl M. Jones, Sr. Attorney Office of Regional Counsel Alaska Region Federal Aviation Administration 222 West 7th Avenue #14 Anchorage, AK 99513-7587 The Honorable Richard C. Goodwin, Administrative Law Judge U.S. Department of Transportation Office of Hearings, M-20 1200 New Jersey Avenue, S.E. East Building, Ground Floor, Room E12-320 Washington, DC 20590

LAW OFFJSE OF HOZUBIN & MOBERLY By:

# //:'~.~;:7 

# fVIr/ ;:;a-7£7

# ~- -'< 9100/242/trial/post trial/Mtn for fees and costs- Order

In the Matter of TGI Freight Docket No. CP10NM0012 Page 2