U.S. Department ofTransportation Federal Aviation Administration



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CERTIFIED -RETURNRECEIPT REQUESTED Hearing Docket Clerk FAA, AGC-430, Suite 2W1000 Wilbur Wright Building 800 fudependence Avenue, SW P.O. Box 20636 Atlanta, Georgia 30320 (404) 305-5200 (404) 305-5223 FAX

Washington, DC 20591 · -**~** 

### 07<&-/

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# Foms**~o,,.-** Re: ill the Matter ofBraille Battery, fuc. FAA Case No. 2011S0700298

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## o~d Enclosed herewith please find a copy ofa request for hearing and the original and one copy of the Comp1aint in the above-referenced proceeding. The FAArequests that the hearing in this matterbeheld in the Tampa, Florida area, and expects that the hearing will last no more than two days. Please address all communications for the FAA to the undersigned, at: Federal Aviation Administration Office ofthe Regional Counsel, AS0-7 Southern Region P.O. Box 20636 Atlanta, Georgia.30320 Telephone: (404) 305-5200, facsimile (404) 305-5223.

# Si~/r~ GERALD A. ELLIS Attorney Office ofthe Regional Counsel Enclosures 

# RECEIVED JUL 17..2012 

# HEARING DOCKET

# GRAY ROBINSON ATTORNEYS AT LAW

Charles Fletcher

813-273-5151 CHARLES.FLETCHER(Ci?GRAY-ROBINSON.COM

VIAFACSIMILE (404) 

### 305-5223 AND U.S. EXPRESS MAIL

· Gerald A. Ellis, Esq.

Office ofthe Regional Counsel Federal Aviation Administration P.O. Box 20636 Atlanta, GA 30320 

### Re: Braille Battery, Inc. June 29, 2012 SUITE 2200 201 N. FRANKLIN STREET {33602) P.O. Box 3324 TAMPA, FLORIDA 33601-3324 TEL 813-273-5000 FAX813-273-5145



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### Response, Request for Hearing andRequest for Extension ofTime Notice ofProposed Civil Penalty (HM) Case No. 2011S0700298 Dear

### Mr. Ellis: FORT LAUDERDALE jACKSONVILLE KEY WEST LAKELAND MELBOURNE MIAMI NAPLES ORLANDO TALLAHASSEE TAMPA

Our firm represents Braille Battery, Inc. in connection with the above-reference matter. We are inreceipt ofthe Notice ofProposed Civil Penalty datedMay 29, 2012 and received by Braille Battery onMay 31, 2012 (the "Notice"). My clienthas elected to request a hearing and seek a consultation with yourselfor other appropriate officials in the FAA Regional Office. Please find attached the Election ofRights. Braille Battery would prefer to work cooperatively with FAA to resolve this matter without the time and expense oflitigation, and inthis light has requested consultation, in addition to protecting its rights by timely requesting a hearing under 14 C.F.R. §13.16 and Part 13 Subpart 

### G. We believe the Notice is premised on incorrect and incomplete information that is material to whether there has, in fact, been any violation ofthe U.S. Department ofTransportation ("USDOT") Hazardous Materials Rules ("HMR"), whether it is appropriate for the Federal Aviation Administration (the "FAA'') to seek civil penalties atthis time, and the magnitude of

### a civil penalty, should any civil penalty be appropriate. As I am sure you are aware, the application ofthe USDOT HMR can be very complicated and it is not uncommon for the regulated communities, regulators, and even FAA administrative law judges to misapply these rules due to their complexity and the changingproducts inthe marketplace as technology progresses. For example, 

### in a civil penalty appeal the FAA Administrator found that the civil penalties were imposed based onthe mistaken beliefthat a

www.gray-robinson.comGRAYROBINSON PROFESSIONAL ASSOCIATION Gerald A. Ellis, Esq. June 29, 2012 Page2 regulatedproduct was banned from transport onpassenger aircraft, when in fact itwas only banned in certain forms. See In the Matter ofVillamor Tabula, FDMS No. FAA-2008-0883. The Notice inthis case is based on a similar misapplication oftheUSDOT HMR. Braille Battery is providing the most complete information ithas been able to assemble within the time available to respond to the Notice. We request an extension oftime of'an additional 30 days to supplementthe materials provided herein. Braille Battery disputes each alleged violation and the associated proposed penalties set forth in theNotice onthe following grounds: 1. Allegedviolation is already subject to USDOTenforcementandhas been resolved Pleasenote that that Braille Batteryhas already been subject to enforcementbyUSDOT onthis shipment and issue under the USDOT HMR. Specifically, USDOT has already sought and assessed negotiatedpenalties pursuant to 49 U.S.C. §5123(a) and 49 C.F.R. Chapter 172 for transport ofa batteryvia FedEx intended for Mr. Richard Purcell 

### inWadsworth, Ohio onMarch 8, 2012. See Pipeline and Hazardous Materials SafetyAdministration ("PHMSA") September 1, 2011 Notice ofProbable Violation, Case No. 11-0095-BAT-SO, Addendum A, Specific Allegations G.3.iii at page 4 of7, a copy ofwhich is attached. The penalties assessed were, inpart, the result ofa report byFAA employee Mark Gentile regarding the March 8, 2011 shipment, the subsequent inspection on April12, 2011 oftheBraille Battery Sarasota facility byUSDOT officials, and the PHMSANotice ofProbable Violation. All ofthese issues were addressed and resolved inthe Compromise Agreement entered into betweenBraille Battery and PMSHA. See attached Compromise Order, PHMSA Case No. 11- 0095-BAT-SO. Thepenalties paid under this Compromise Agreement were for exactlythe same event and as such the USDOT does not have the authorityto seek additionalpenalties for these alleged violations ofUSDOTHazardous Materials Regulations. IfF AAinsists on seeking additional fmes on this matterwerequest an opportunityto discuss this with you directlyviatelephone or in person·. In addition, weprovide the following information for FAA's consideration, without conceding or otherwise accepting the validity ofFAA'sNotice orproposed civil penalties. Braille Batteryreserves all rights inthis regard.GRAYROBINSON PROFESSIONAL ASSOCIATION Gerald A. Ellis, Esq. June 29, 2012 Page3

2. Notice of Proposed CivilPenaltymisstates material facts A critical misstatement in the Notice is the incorrect identification ofthe type ofbattery presented for shipmentbyBraille BatteryonMarch 8, 2011. Braille Battery sought to ship a "lithium-ion"batterynot a "lithium"battery. This is a substantial andmaterial misstatement. Subsequent allegations inthe Notice stem from the mistaken beliefthat the battery atissue is a "lithium" battery. This differentiation is apparent from the product name: "Micro-Lite LithiumIon Battery." The Notice incorrectly identifies the batterypresented for shipment as a "primary (nomechargeable) lithiumbattery or cell." This also a misstatement ofa material fact. The batterypresented for shipment was a secondary (rechargeable) battery. These differentiations are important because HMR 49 C.F.R. §172.102 special provision A100 expresslyprovides: "Secondary (rechargeable) lithium batteries and cells are authorized aboard passenger carrying aircraft inpackages that do not exceed a gross weight of

### 5 kg." The lithiumionbatterypresented for shipment was under 3 kg. 3. Proposed penalty exceeds statutory authority anddoes not consider all required factors As your notice states, 49 U.S.C. §5123(a) limits penalties to not greater than $55,000 per violation. You have proposed a civil penaltyin the amount of$78,000, well above the statutory limit authorized 

### in the U.S. Transportation Code for a HMR violation. No matrix, methodology, or other information is provided to articulate the authority or factual basis under which FAA is seeking eithermultiple or supplemental penalties. The Notice and ourinformation indicate that there was no property damage or injury ofany sort associated with the alleged violation. Infact, the battery at issue was not, infact, transported as air freight, the packaging remained intact at all times and there is no indication that any material risk was everposedto anyperson or any property. Under 14 C.F.R. §13.16(c) FAA is required to consider: (1) The nature, circumstances, extent, and gravity ofthe violation; (2) With respect to the violator, the degree ofculpability, any history ofprior violations, the abilityto pay, and any effect on the ability to continue to do business; and (3) Such other matters asjusticemayrequire. Inthe instant case, there was a single alleged action that is being cited byFAA. Each violation alleged was the result ofa single allegedlymislabeled box presented to FedEx in accordance with FedEx'spublishedrequirements for shipping. Infact, Braille Battery followed preciselythe published FedEx standards applicable for the battery at issue. Moreover, Braille BatteryGRAYROBINSON PROFESSIONAL ASSOCIATION Gerald A. Ellis, Esq. June 29,2012 Page4

believed they had complied with the applicable hazardous materials shippingrequirements under USDOT FIRM rules and guidelines. Braille Battery does not have ?TIY enforcement or compliance history with FAA. As such Braille Battery shouldbe treated first time violator under 14 C.P.R. §13.16(c). Moreover, the fine is excessive considering the gravity ofthe violation and any alleged culpabilitybyBraille Battery. Otherpublished decisions regarding alleged mislabeling of hazardous materials for air transport have resulted in civil penalties from $3,750 to $50,000. One ofthese cases was for transport of79 drums ofhazardous materials. The comparison of79 drums ofhazardous materials to a single 3 kg batteryproduct is obvious. A proposedpenalty of $78,000 is simplynotproportionate to the alleged violation. In another case whenthe FAA Administrator determined that the product was not, in fact, completelybanned from passenger aircrafts, the civil penaltywas reduced dramatically. 

### See In the Matter ofVillamor Tabula, FDMS No. FAA-2008-0883. As indicated above, the Notice is based onthe mistaken beliefthat the battery at issue is banned from passenger aircrafts. Ifanyviolation ofHMR occurred it was not due to a lack ofeffort orinterest in complying with HMR. Braille Batteryhas invested significant resources to ensure that its products are shipped safely, and any violation would be due to an ambiguity as to the appropriate classification ofits products, efforts to meet both domestic and international regulations, and/or efforts to comply with the shipping requirement ofthe carrier FedEx. The lack ofintent ofthe respondents in civil penalty cases have been cited byALJs and the FAAAdministrator as a basis for reducing penalties based lack ofsignificant culpability. Said another way, when the evidence indicates the respondent did notintentionallyviolate the HMR, the civil penalty should be significantly reduced. Also ofimportance is thatBraille Batteryhas engaged in significant corrective action after the Aprill2, 2012 USDOT inspectionreferenced above. Braille Batteryworked withPHMSA to correct all ofthe indentified deficiencies. Braille Batteryhas an ongoing effort to ensure continued compliance with the HMR and all requirements ofcommercial carriers such as FedEx. Braille Battery canprovide additional evidence ofthis corrective action ifgranted the requested 30-day extension oftime to supplement this response. Finally, the proposedpenalty of$78,000 will adverselyimpact theability ofBrailleBatteryto continue to do business. Attached is Braille Battery's Balance Sheet from the first quarter of 2012. Braille Battery can provide additional evidence ofits fmancial condition ifgranted the requested 30-day extension oftime to supplement this response. As you will be able to discern from the balance sheet, Braille Battery does not have the ability to pay a penalty of$78,000 and meet its financial obligations necessary to continue as on ongoingbusiness concern. 

### Please noteGRAYROBINSON PROFESSIONAL ASSOCIATION Gerald A. Ellis, Esq. June 29, 2012 Page 5



### that all provided rmancial information is confidential business information and not subject to public disclosure under the Freedom ofInformation Act. 4. ProposedNotice of CivilPenalty does not provide legally sufficientnotice The proposed Notice ofCivil Penalty simply states that a penalty of$78,000 is proposed. There is no explanation ofhow that number was calculated, howthat proposed penaltyisjustified or apportioned between the alleged HMR standards referenced inthe Notice, or what statutoryor otherfactors were considered when calculating the proposed civil penalty. Without more specific informationregarding the method ofcalculation or assessment ofthe penalties consistent with the Hazardous Materials Transport Act, 14 C.P.R. §13.16(c), or otherUSDOT rules or applicable guidance documents, we are unable to evaluate the proposed civil penalty or make any meaningful counteroffer at this time. We request an extension oftime to make a counteroffer for at least 30 days, and until such time as FAAmakes this information available to Braille Battery. I look forward to discussing this matter with your further. Please contact me at your earliest availability to discuss resolution ofthis matter.

CF/lmw Attachments: Sincerely,

Charles Fletcher

1. Election ofRights onbehalfofBraille Battery (via facsimile andU.S. Express Mail) 2. Notice ofProposed Civil Penaltydated May 29, 2012 (via U.S. Express Mail) 3. PHMSA Notice ofProbable Violation dated September 1, 2011 (viaU.S. Express Mail) 4. Compromise Order, PHMSA Case No. 11-0095-BAT-SO (via U.S. Express Mail) 5. Braille BatteryBalance Sheet (viaU.S. Express Mail)

cc: FAAHearing Docket (w/ attachments) (via FedEx)

# 3261341 viU.S. DEPARTMENT OF TRANSPORTATION OFFICE OFHEARINGS FEDERAL AVIATION ADMINISTRATION

FEDERAL AVIATION ADMINISTRATION, Complainant,

vs. BRAILLE BATTERY, INC. Respondent.

JUDGE NOT YET ASSIGNED FAADocketNo. [Unassigned]. FAA Case No. 201180700298

COMPLAINT The Federal Aviation Administration (FAA), by counsel, hereby files its Complaint, pursuant to Rule 208 ofthe Rules ofPractice (14 C.F.R. 13.208), and states as follows: I. 1. On July 10, 2012, Respondent, Braille Battery, Inc. was advised through an Amended Notice ofProposed Civil Penaltythat the FAAproposed to assess a civil penalty in the amount of$78,000. On June 29, 2012, the Agency Attorney received a written request for a hearing from the Respondent. II. 2. On or about March 8, 2011, Braille Battery, Inc. (Braille Battery) knowingly offered to Federal Express a shipment containing a fiberboard box containing hazardous materials for transportation by air. 3. The above-mentioned shipment was assigned Federal Express Standard Overnight tracking number/air waybill number 7968 4353 1264. The shipment was offered byBnrille Battery, 6935 15th St. East, Suite 115, Sarasota, Florida 34243, for transportation to the consignee, Richard Purcell, Top Marx 

### UK. limited, 715 Weber St., Wadsworth, Ohio 44281. 4. At all times mentioned herein, the above-mentioned shipment was not accompanied by a Shipper'sCertification orDeclaration ofDangerous Goods.5. On or about March 8, 2011, the above-mentioned shipment was transported to a Federal Express sort facility inBradenton, Florida for airtransportation. · 6. On or about March 8, 2011 a FAA inspector discovered the above-described shipment at the Federal Express sort facility in Bradenton, Florida. 7. a. The above-mentioned fiberboard box contained a six-pound Braille Battery, Micro-Lite, Lithium-Ionbattery. b. Thebattery was labeled "ML20" and, "16Ah" [Amp Hour].

c. The FAA inspector measured the battery's voltage and discovered that it contained approximately 13.43 volts ofelectrical force. 8. (a) The above-described "Braille Battery, Micro-Lite, Lithium-Ion battery" is classified as a hazardous material under the Department ofTransportation Hazardous Materials Regulations (HMR) (49 C.F.R. § 172.101). (b) The proper shipping name ofthe material is Lithium battery. Itis in Hazard Class 9 (Miscellaneous), Packing Group II, and has an assigned identification number of UN3090 (or 3480). The properlabel is "CLASS 9". (c) The above-described "Braille Battery, Micro-Lite, Lithium-Ion battery" is a secondary (rechargeable) lithiumbattery or cell. 9. Braille Battery offered the above-described shipment ofhazardous material for transportation by air without shippingpapers that included: (a) the assigned identificationnumberprescribed for each hazardous material; (b) the proper shipping name prescribed for each hazardous material; (c) the hazard class prescribed for eachhazardous material; (d) the packing group prescribed for each hazardous material; (e) the total net mass perpackage ofeach hazardous material; and, (f) the number and type ofpackages containinghazardous material. 10. Braille Battery offered the above-described shipment ofhazardous material for· transportation by air and failed to: (a) certifythat the materials were 

### in accordance with the HMR (49 C.F.R. §§ 171, et seq.) byprinting onthe shipping papers the certification set forth in § 172.204(a)(1), 172.204(a)(2), or § 172.204(c) ofthe HMR;(b) prepare the required certifications in duplicate; and, (c) add to the certification required inthis section the following statement: "I declare that all ofthe applicable air transport requirements have been met." 11. Braille Battery offered the above-described shipment ofhazardous materials for transportation by air when: (a) the outer container was not marked with the proper shipping name ofeach hazardous material contained therein; (b) the outer container was not marked with the assigned identification number ofeach hazardous material contained therein; (c) a "CLASS 9" label was not affixed to the outer container. · 12. Braille Battery offered the above-described shipment ofhazardous material for transportation by air and failed to make emergency response information available for use at all times the hazardous material was present. 13. Braille Battery offered the above-described shipment ofhazardous material for transportation by air and failed to make an emergency response telephone number immediately available to the appropriate official person designated to respond to an incident involving a hazardous material, or who was conducting an investigation involving a hazardous material. 14. Braille Battery offered the above-described shipment ofhazardous material for transportation by air and failed to ensure that each ofits hazmat employees was properlytrained in accordance with the prescribed requirements as set forth in Section 172.704. 15. BrailleBattery offered the above-described combination package ofhazardous material for transportation byair when it was not properlypackaged for transportation by air.

III. 16. Byreason ofthe**above~** violated the following Department ofTransportation Hazardous Materials Regulations (Title 49 ofthe Code ofFederal Regulations): 1. Section 171.2(e) in that Braille Battery offered or transported a hazardous material for transportation in commerce when the hazardous material was not properly classed, described, packaged, marked, labeled, and in condition for shipment as required or authorized by applicable requirements ofthis subchapter, or an exemption, approval, orregistration issued under this subchapter or under subchapter A ofthis chapter.2. Sections 172.200(a) and 172.202(a)(l) inthat Braille Battery offered a hazardous material for transportation and failed to describe the hazardous material on shipping papers including the identification numberprescribed for the material as shown in Column 4 of the § 172.101 Table, in the mannerrequired bythis subpart.

· 3. Sections 172.200(a) and 172.202(a)(2) in that Braille Battery offered a hazardous material for transportation and failed to describe the hazardous material on shipping papers including the proper shipping name prescribed for the material as shown in Column 2 of the§ 172.101 Table. 4. Sections 172.200(a) and 172.202(a)(3) inthat Braille Battery offered a hazardous material for transportation and failed to describe the hazardous material on shipping papers including the hazard class or divisionnumberprescribed for the material as shown in Column 3 ofthe § 172.101 Table. 5. Sections 172.200(a) and 172.202(a)(4) in that Braille Batteryoffered a hazardous material for transportation and failed to describe thehazardous material on shipping papers including the packing group inRoman numerals, as designated for the hazardous material in Column 5 ofthe § 172.101 Table. 6. Sections 172.200(a) and 172.202(a)(6) inthat Braille Battery offered a hazardous material for transportation by aircraft and failed to describe the hazardous material on shipping papers showing the total mass perpackage, unless a gross mass is indicated in Columns (9A) or (9B) ofthe§ 172.101 Table in which case the total gross mass perpackage must be shown; or , for Class 7 materials, the quantity ofradioactive mustbe shown by activity. 7. Sections 172.200(a) and 172.202(a)(7) inthat Braille Battery offered a hazardous material for transportation and failed to describe the hazardous material on shipping papers indicating the number and type ofpackages (for example, ''12 drums"). 8. Sections 172.204(a) or (c)(l) in that Braille Battery offered a hazardous material for transportation and failed to certifythat the material was offered for transportation in accordance with this subchapter byprinting onthe shipping paper containing the required shipping description one ofthe certifications set forth in this part. 9. Section 172.204(c)(2) in that Braille Batteryoffered a hazardous material to an aircraft operator for transportation by air and failed to provide two copies ofthe certification required in this section. 10. Section 172.204( c)(3) in that Braille Battery offered for transportation by air a hazardous material authorized for air transportation and failed to add to the certification required in this section the following statement: "I declare that all ofthe applicable air transport requirements have beenmet."11. Section 172.301(a) in that Braille Battery offered for transportation a hazardous material in a non-bulk packaging and failed to mark the package with the proper shipping name and identification number (preceded by "UN" or "NA'', as appropriate) for the material as shown in the §172.101 table. 12. Section 172.400(a) in that Braille Battery offered for transportation a hazardous material in one ofthe packages or containment devices listed in this subpart and failed to label the package or containment device with the labels specified for the material in the §172.101 Table and in this subpart. 13. Section 172.600( c)(1) in that Braille Battery offered for transportation a hazardous material and failed to make the emergency response information conforming to this subpart immediately available for use at all times the hazardous material was present. 14. Section 172.600( c

)(2) in that Braille Battery offered for transportation a hazardous material and failed to make emergency response information including the emergency response telephone number, immediately available to any government agency responding to an incident involving hazardous materials or conducting an investigation which involves a hazardous material. 15. Section 172.702(a) in that Braille Battery offered a hazardous material for transportation and failed to ensure that each ofits hazmat employees was trained in accordance with all the requirements prescribed in this subpart. 16. Section 173.185{a)(4) in that Braille Battery offered for transportation a non-bulk package containing a lithium cell orbattery, a lithium polymer cell or battery, or a lithium-ion cell orbattery, and failed to package itin combination packagings conforming to the requirements ofpart 178, subparts Land M, ofthis subchapter at the Packing Group II performance level. The lithium battery or cell must bepacked in inner packagings in such a manner as to prevent short circuits, including movement which could lead to short circuits. The inner packaging must be packed within one ofthe following outer packagings: metal boxes (4A or 4B); wooden boxes (4Cl, 4C2, 4D, or 4F); fiberboard boxes (4G); solid plastic boxes (4H2); fiber drums (lG); metal drums (1A2 or 1B2); plywood drums (lD); plasticjerricans (3H2); or metaljerricans (3A2 or 3B2) 17. Pursuant to 49 U.S.C. Section 5123(a), Braille Battery, Inc. is subject to a civil penalty not lower than $250 ($450 for training-related violations), nor greater than $50,000 ($100,000 ifdeath, serious illness, severe injury, or substantial property damage results), for each violation ofthe Department ofTransportation Hazardous Materials Regulations. 18. Under the facts and circumstances ofthis case, a civil penalty of$78,000 is appropriate.WHEREFORE, the Agency, by counsel respectfullyrequests that the Administrative Law Judge enter an order that Respondentbe assessed a civil penaltyin the amount of$78,000. Respectfully submitted this \ 

# lJ"' day ofJuly, 2012.

# k#/.~ GERALD A. ELLIS Attorney Office ofthe Regional Counsel

PLEASE NOTE: Plirsuant to Title 14 CFR Section 13.209(a), you are required to file a written answer to this Complaint, or a written Motion to Dismiss ifappropriate, not later than 30 days after the date shown on the**Certificat~** ofService which follows.CERTIFICATE OF SERVICE

I hereby certify that a copy ofthe foregoing Complaint has been mailed this date by Certified Mail, Return Receipt Requested, to the following: Hearing Docket Clerk FAA, AGC-430, Suite 2W1000 Wilbur Wright Building 800 Independence Avenue, SW Washington, DC 20591 Charles Fletcher, Esq. GrayRobinson, P.A. 201 N. Franklin St., Suite 2200 Tampa, FL 33602

Le ssi tant Office ofthe Regional Counsel 

## .•10 7012 Dated (original 

### + 1 copy)