-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 2 
The 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 3 
went 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 4 
dollars 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: 

980601 
CERTIFICATE 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 

of Transportation 

Federal Aviation 

Administration 

CERTIFIED MAfir.C-RETURN RECEIPT REQUESTED 

Parsons Corporation 

Attn; Charles Harrington CEO 

I 00 West Walnut Street 

Pasadena, CA 91124 

Dear Mr. Harrington: 

Letterofinvestigation 

File Number: 2010NM730038 

ANCHORAGE AVIATION 

SECURITY and HAZARDOUS 

MATERIALS 

Zll West 1i' 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 of Security and Hazardous 

Materials (ASH) branch office in Anchorage, Alaska was notified of hazardous material discovered by 

th~ Alaska Ajrlines (ASAA) station in Anchorage (ANC), AK. 

Speeific~lly,ASAArep!}rie~ that on February 19, 2010, your company's Anchorage office 

qffer~ a siX piece shipment on Air Waybill# 3371 9873 to ASAA for air transportation as cargo 

from ANC to Ketchikan, AK. During the screening of this freight, undeclared hazardous 

materials, four boxes, each containing.twelve 9.3 ounce tubes ofUnitex Pro-Poxy 400 Adhesive 

(Adhesive, Class 3, UN1133, PG III), were discovered. 

·The Federal Aviation Administration is conducting an investigation into this matter and preliminary 

evidence indicates that you may have violated the Federal Hazardo)IS MaterialscRegulations, 49 Code of 

Federal Regulations .. · 

We wish to offer you the opportunity to furnish explanatory information reflecting extenuating or 

mitigating circumstances regarding these alleged violations. Your written reply will be needed within ten 

(10) working days of receipt of this letter to resolve this matter promptly. Please include in yollr 

reSponse, the hazardous material training records for everyone involved with this shipment. lfno 

respoose is received, this case will be processed without the benefit of your reply. 

Sincerely, 

ill£fi;t_· .· A~L.DciG HaZardous Materials Specialist 

·• Hazardous Materials Branch 

Anchorage Office 
Ph: 907.522.3088 • Fax: 907.562.6295 

Anchorage Aviation 

Security and Hazardous Materials 

222 West 7th Avenue #14 

Anchorage, AK 99513-7587 

File# 2010NM730038 

Dear Mr. Deitz: February 26, 2010 

Please accept this letter in reference to the above file involving the Alaska Airlines 

shipment ofPro-poxy 400 air waybill number 3371-9873 on February 19,2010. 

Because Tgi Freight represents Parsons Corporation as a Dangerous Goods Agent for 

their air shipments I request that all correspondence regarding this matter be directed to 

us. 

I am currently investigating the details involved with this shipment and at this time am 

not well enough informed to make comment. I will be traveling for the next 17 days 

returning to Anchorage on March 16th. Please allow me additional time to gather 

information and respond to your request. At that time I will provide a detailed account 

for our actions as well as training documentation for those involved. 

Sincerely, 

Todd Clark 

President Tgi Co. Inc. 

3 

P.O. Box 221049, Anchorage AK, 99522-1049 4000 W. 501

h Ave., '.9J( Anchorage, AK 99502 
Ph: 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 of our actions regarding the Alaska Airlines 

shipment of February 19th, 2010 airway bill# 027-3371-9873. 

Tgi Freight has been involved as a dangerous goods agent for Parsons Corporation dating 

back to June of 2009. 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 of Alaska Airlines. 

I am also including training records for Jeff Jueneman. Jeff is 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 Jeff first identified the fire extinguisher. He marked and 

labeled it and logged it for documentation. Next he identified cartons of consumer 

commodities and cartridges power device. He confirmed that the inner containers of the 

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 99502 
Continued from page 1 

When identifYing the Pro-poly 400 he first examined the outside of the factory carton. 

The carton appeared to Jeffto be a shipping container. Nowhere on the carton was any 

indication of hazardous material. There was no UN number, proper shipping name or 

hazard labels. Closer examination of labels on the carton revealed no consumer warnings 

that would indicate the contents being hazardous. (See attached pictures). As an 

additional precaution Jeff opened the box to examine the inner containers for any 

consumer warnings that might indicate that the product may be flammable, corrosive or 

toxic. 

Typical consumer warnings that we look for are "Keep away from heat or flame", "Do 

not use in enclosed areas", "Fumes may ignite", "Contact with skin or eyes may cause 

burns or blindness", "Poison, keep out of the reach of children". Many manufacturers 

now choose to print miniatures of the diamond shaped hazard labels on each inner 

container. Nowhere on the inner containers was there even the slightest indication that the 

product presented any danger to the user. 

At this stage Jeff was confident that the product was non regulated as a hazardous 

material and identified it as such on the 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 then printed a MSDS for the Pro-poxy and have discovered a 

discrepancy. In section 5 the MSDS lists the product as having a flash point of 65 

degrees Fahrenheit. However, in section 14 the MSDS contradicts itself by stating that 

the product is a packing group III flammable. 

In an attempt to determine that the cartons that we received and shipped were a shipping 

container, I called Unitex in Kansas City, MO Phone# (816-231-7700). I first spoke with 

Hulian in the chemistry department. He confirmed that the flashpoint for part A is 65 

degrees F and went on to explain that they list the product as a packing group III. He 

then directed me to Jason Harris. 

Jason made reference to 173.121 (b) (1) (i) (ii) (iii) to explain the reason for a 65 degree 

packing group III. He then provided the following example as a typical shipment of Propoxy 400. The unmarked white display boxes (as pictured in this packet) are stacked on a 

pallet then stretch wrapped. This confirms that the white cartons that we shipped are an 

outer container as described in 171.8. 

2 
Continued from page 2 

The product is then listed on the bill oflading as Adhesive, Un 1133, pg III. It is Unitex's 

incorrect belief that 173.150 (b) 172.301 (a) (I) relieves them from all marking and 

labeling requirements for surface shipment. He added that a smaller shipment of one or 

two of the same cartons would receive a Consumer commodity label. 

Our research has determined that the manufacturer does ship this product from their 

facility in the packages as we received them. In addition, they have failed to mark those 

outer packages as required by 172.300 and 172.301. These facts combined with the lack 

of any consumer warning of flammability on the inner containers led us to ship the 

product as a non regulated item. 

It is our stance at Tgi Freight that we acted accordingly based on the information 

provided us on the manufacture's shipping containers. Had the cartons been marked 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 included it on the 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 can provide any further information please feel free to 

contact me. 

Sincerely, r; 

c),~ Ce'MLTodd Clark 

President, Tgi Co. Inc 

3 
U. S. Department 

of Transportation 

Federal Aviation 

Administration 

Case No. 20IONM730038 

JUL - 8 2010 

Alaskan Region 

CERTIFIED MAIL- RETURN RECEIPT REQUESTED 

President 

TGIFREIGHT 

4000 W. 50th Avenue, Suite 3 

Anchorage,AJC 99502 

222 W. 7th Avenue#l4 

Anchorage, Alaska 99513-7587 

PH: (907) 271-5273 

FAX: (907)271-2800 

Email: Cheryl.Jones@faagov 

NOTICE OF PROPOSED CIVIL PENALTY 

It appears on the basis of our report of investigation that: 

I. On or about February 19, 2010, TGI Freight (TGI) offered undeclared hazardous material, as 

part of a 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 contain hazardous materials was initialed. 

2. During the screening process, ASAA personnel discovered the presence of four boxes, each 

of which contained twelve (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 of the 

United States Department of Transportation Hazardous Materials Regulations (HMR), 49 

C.F.R. "Chapter I, Subchapter C (Parts 171-80). Its proper shipping name is "Adhesives." It 

is in Hazard Class 3, Packing group III, and has an assigned identification number of 

UN1133. 

4. At all times mentioned herein, the shipment was not accompanied by a Shipper's Declaration 

for Dangerous Goods. 
5. TGI offered the above-described shipment of hazardous material for transportation by air 

when the shipping papers did not contain the proper shipping name of the hazardous 

2 

material, the hazard class of the hazardous material, the assigned identification number of the 

hazardous material preceded by "UN" or "NA" as applicable, and the assigned packing group 

number prescribed for the hazardous material. 

6. TGI offered the above-described hazardous material for transportation without including in 

the shipping papers an emergency response telephone number as prescribed in Subpart G of 

Part 172 of the HMR. 

7. TGI offered hazardous materials for transportation by air when it did not certify that each 

hazardous material was in accordance with the HMR by printing the certification set forth in 

§ 172.204(a) or (c)(l) on the shipping papers. 

8. TGI offered the abovecdescribed hazardous material for transportation by air and did not 

provide two (2) copies of the required shipper's certification. 

9. TGI offered hazardous materials for transportati0n by air without adding to the certification 

required by § 172.204( c )(3) of the HMR the following statement: 

I declare that all of the applicable air transport requirements have been met. 

10. TGI offered the above-described hazardous material when the external boxes were not 

marked or labeled in any manner that would indicate the hazardous nature of the contents 

contained therein. 

11. TGI offered the above-described shipment for transportation by air when the external boxes 

were not marked with the proper shipping name lmd the assigned identification nwnber of the 

hazardous material contained therein, and without the required markings, in English, and 

printed on or affixed to the surface of the boxes. 

Based on the foregoing facts and circumstances, TGI violated the following Department of 

Transportation Hazardous Materials Regulations (HMR): 

(a) Sectio& 11l~in that TGI offered hazardous material for transportation in commerce 

within the United States when each material was not properly classed, described, marked, 

and labeled for shipment as required by the HMR. 

(b) Section 172.200( a) in that TGI offered hazardous material for transportation when the 

hazardous material was not described on the shipping paper in the manner prescribed in 

Subpart C of Part 172 of the HMR. 
(c) Section 172.20 1( d) in that TGI offered hazardous material for transportation without 

including in the shipping papers an emergency response telephone number as prescribed 

in Subpart G of Part 172 of the HMR. 

3 

(d) Section 172.202( a)(l) in that TGI offered haZa.rdous material for transportation when the 

required hazardous material description on tl).e shipping papers did not include the proper 

identification number for the material as shown in Column (4) of the§ 172.101table. 

(e) Section 172.202( a)(2) in that TGI offered hazardous material for transportation when the 

required shipping papers did not include the proper shipping name prescribed for the 

material in Column (2) of the§ 172.101 table. 

(f) Section 172.202(a)(3) in that 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 showrj. in Column (3) of the§ 172.101 table. 

(g) Section 172.202(a)(4) in that 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 hazru;dous material in Column (5) of the 

§ 172.101 table. 

(h) Section 172.204( a) or ( c )(I) in that TGI offeted hazardous material for transportation 

without printing the proper certification on tlile shipping papers as required by these 

sections. 

(i) Section 172.204( c )(2) in that TGI offered hazardous material to an aircraft operator for 

·transportation by air and did not provide two copies of the required shipper's certification. 

Q) Section 172.204(c)(3) in that TGI offered haZardous material for transportation by air 

without adding to the certification required by§ 172.204(a) or (c)(l) the following 

statement: 

I declare that all of the applicable air transport requirements have been met. 

(k) Sections 172.300 and 172.30l(a) in that TGl!offered hazardous material for 

transportation when the package was not marked with the proper shipping names and 

identification numbers for its contents. 

(I) Section 172.400(a) in that TGI offered a package containing hazardous material for 

transportation when the package was not properly labeled as specified in § 172.101. 

(m)Sections 172.600(c)(l) and (c)(2) in that TGI offered hazardous material for 

transportation when the emergency response information, including emergency response 

telephone number, was not immediately available for use at all times. 
In accordance with Section 5123(a) of Chapter 51, Title 49 of the United States Code of 

Transportation, [49 U.S.C. § 5123(a)], TGI is liable for a civil penalty of not less than $250 

($450 for training violations), nor greater than $5o,qoo (or $100,000 for violations resulting in 

death, serious illness, or severe injury to any person; or substantial destruction of property), for 

each violation of the regulations. After reviewing otrr investigative file, we propose to assess a 

civil in the amount of $27,000 for this violation. · 

4 

Enclosed is information on TGI's options in responding to this notice. The options include 

participating in an informal conference with an F M attorney and submission of information to 

the FAA for consideration. TGI must submit, in writing, its choice of the alternatives explained 

on the enclosed information form, on or before 30 days after you receive this Notice. IfTGI fails 

to submit its choice within that time, it will have no further right to participate in 

the informal procedures. 

Please direct all communication in this matter to the ,undersigned, Office of Regional Counsel, 

AAL-7, 222 West 7th Avenue, #14, Anchorage, Alaska 99513-7587. 

HOWARD L. MARTIN, JR 

Regional Counsel 

By: ~~~~--~---­

Cheryl M. Jones 

Senior Attorney 

Enclosures: Information Sheet 

Reply Form 

FAR 13.16 and Subpart G of Part 13 
REBECCA J. HOZUBIN 

MARK E. WJLKERSON, Of Counsel 

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 

R 
REPLY TO NOTICE OF PROPOSED CIVIL PENALTY (HAZARDOUS MATERIALS) 

To: Federal Aviation Administration 

Office of the Regional Counsel 

Federal Aviation Administration 

222 West 7rn Ave. #14 

Anchorage, AK 99513-7587 

Subject: Notice of Proposed Civil Penalty (HM) 

Date: August 3, 2010 

Case No.: 2010NM730038 

In reply to your Notice of Proposed Civil Penalty, I elect to proceed as indicated by my check 

mark beside the numbered paragraph(s) below: 

I. [ ] I hereby submit the amount of the 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 of the 

regulations did not occur as alleged or that the amount of the penalty is not warranted by the 

circumstances.· 

4. [ ] I hereby submit information and records showing that I am financially unable to pay the 

proposed civil penalty or that payment of the 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 of the proposed amount. My request 

constitutes my agreement that if this 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 THAT I HAVE WAIVED MY RIGHT TO A 

HEARING. IF THE FAA 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 at the telephone number you provide here: ( )--,----,--

You will be provided at least 2 weeks advance notice of the date and time of this conference.) 

NOTE: If you choose to discuss this matter informally by telephone, you should provide any 

documents or other information you wish to have considered on your behalf before 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 of Part 13 of the 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 of the 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.net 
U.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 of the Regional Counsel 

NOTICE OF INFORMAL CONFERENCE 

222 W. 7th Avenue #14 

Anchorage, Alaska 

99513-7587 

Ph: (907) 271-5273 

Fax (907) 271-2800 

Chery l.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 conduct the informal conference you requested concerning the charges in 

our Notice 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 of the Federal 

Aviation Regulations. 

HOWARD L. MARTIN, JR. 

Regional Counsel 

By: Cheryl M. Jones 

Senior Attorney 

Enclosure: AFOB 3'd Floor Map 
U. S. Department 

of Transportation 

Federal Aviation 

Administration 

OCT 1 4 

Alaskan Region 

Office of the 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. ~vil/ll Ill ·oo,-, 

FINAL NOTICE OF PROPOSED CIVIL PENALTY 

On July 8, 20 l 0, you were advised through a Notice of Proposed Civil Penalty that the FAA 

proposed to assess a civil penalty in the amount of $27,000. Information presented at the 

informal conference held September 23, 2010, demonstrated that you had relied on the 

manufacturer to correctly label its products. This resulted in a recalculation of the civil penalty 

amount proposed. 

After considering all the evidence in this matter, it appears that: 

l. On or about February 19,2010, TGI Freight (TGI) offered undeclared hazardous material, as 

part of a 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 contain hazardous materials was initialed. 

2. During the screening process, ASAA personnel discovered the presence of four boxes, each 

of which contained twelve (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 of the 

United States Department of Transportation Hazardous Materials Regulations (HMR), 49 

C.P.R. Chapter I, Subchapter C (Parts 171-80). Its proper shipping name is "Adhesives." It 
is in Hazard Class 3, Packing group III, and has an assigned identification number of 

UN1133. 

2 

4. At all times mentioned herein, the shipment was not accompanied by a Shipper's Declaration 

for Dangerous Goods. 

5. TGI offered the above-described shipment of hazardous material for transportation by air 

when the shipping papers did not contain the proper shipping name of the hazardous material, 

the hazard class of the hazardous material, the assigned identification number of the 

hazardous material preceded by "UN" or "NA" as applicable, and the assigned packing group 

number prescribed for the hazardous material. 

6. TGI offered the above-described hazardous material for transportation without including in 

the shipping papers an emergency response telephone number as prescribed in Subpart G of 

Part 172 of the HMR. 

7. TGI offered hazardous materials for transportation by air when it did not certifY that each 

hazardous material was in accordance with the HMR by printing the certification set forth in 

§ 172.204(a) or (c)(!) on the shipping papers. 

8. TGI offered the above-described hazardous material for transportation by air and did not 

provide two (2) copies of the required shipper's certification. 

9. TGI offered hazardous materials for transportation by air without adding to the certification 

required by§ 172.204(c)(3) of the HMR the following statement: 

I declare that all of the applicable air transport requirements have been met. 

10. TGI offered the above-described hazardous material when the external boxes were not 

marked or labeled in any manner that would indicate the hazardous nature of the contents 

contained therein. 

11. TGI offered the above-described shipment for transportation by air when the external boxes 

were not marked with the proper shipping name and the assigned identification number of the 

hazardous material contained therein, and without the required markings, in English, and 

printed on or affixed to the surface of the boxes. 

By reason of the 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 not properly classed, described, marked, 

and labeled for shipment as required by the HMR. 
(b) Section 172.200(a) in that TGI offered hazardous material for transportation when the 

hazardous material was not described on the shipping paper in the marmer prescribed in 

Subpart C of part 172 of the HMR. 

(c) Section 172.201 (d) in that TGI offered hazardous material for transportation without 

including in the shipping papers an emergency response telephone number as prescribed 

in Subpart G of Part 172 of the HMR. 

3 

(d) Section 172.202(a)(l) in that TGI offered hazardous material for transportation when the 

required hazardous material description on the shipping papers did not include the proper 

identification number for the material as shown in Column ( 4) ofthe § 172.101 table. 

(e) Section 172.202(a)(2) in that TGI offered hazardous material for transportation when the 

required shipping papers did not include the proper shipping name prescribed for the 

material in Column (2) of the § 172.101 table. 

(f) Section 172.202(a)(3) in that 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) of the § 172.101 table. 

(g) Section 172.202(a)( 4) in that 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) of the 

§ 172.101 table. 

(h) Section 172.204(a) or (c)(!) in that TGI offered hazardous material for transportation 

without printing the proper certification on the shipping papers as required by these 

sections. 

(i) Section 172.204(c)(2) in that TGI offered hazardous material to an aircraft operator for 

transportation by air and did not provide two copies of the required shipper's 

certification. 

(j) Section 172.204(c)(3) in that TGI offered hazardous material for transportation by air 

without adding to the certification required by§ 172.204(a) or (c)(!) the following 

statement: 

I declare that all of the applicable air transport requirements have been met. 

(k) Sections 172.300 and 172.301(a) in that TGI offered hazardous material for transportation 

when the package was not marked with the proper shipping names and identification 

numbers for its contents. 

(!) Section l72.400(a) in that TGI offered a package containing hazardous material for 

transportation when the package was not properly labeled as specified in § 172.101. 
(m)Sections 172.600(c)(l) and (c)(2) in that TGI 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) of Chapter 51, Title 49 of the United States Code (49 U.S.C. 

§ 5123(a)), you are liable for a civil penalty of not 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 of property), for each violation of the regulations. 

By reason of the foregoing facts and circumstances, we propose to assess a civil penalty in the 

amount of$15,000. 

Unless you mail or personally deliver your request for a hearing, in writing, in this matter on or 

before 15 days after you receive this Final Notice, we will issue an Order Assessing Civil 

Penalty, and you will have no further right to a hearing. If you do not submit a written request 

for a hearing, you must pay the proposed civil penalty. 

Your request for a hearing must be 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 2Wl 000, and a copy must be sent to the undersigned FAA 

attorney. Your request must be dated and signed, in accordance with § 13.16 of the Federal 

Aviation Regulations (14 C.F.R. § 13.16), sent to you with the Notice of Proposed Civil Penalty. 

You may pay the proposed penalty by submitting a check or money order payable to the Federal 

Aviation Administration to the undersigned. In the 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 Search Public Forms option type in "FAL-FINEl." You must 

then complete the requested information and click "Continue." You will then be directed to enter 

your credit card or bank account debit information. To use the bank account debit you will need 

your bank routing number, account number, and check number. If you pay electronically, notify 

the undersigned that such a payment has 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): $16,878.502 

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 $2,285.193 

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 3 
CERTIFICATE 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 
-rU.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 Judge 
CERTIFICATE 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