U.S. Department 

of Transportation 

Federal Aviation 

Administration 

JUL 10 2012 

''1117 JIJI ? 3 l.l,'. ! '" ·~ 

CERTIFIED -RETURN RECEIPT REQUESTED 

Hearing Docket Clerk 

FAA, AGC-430, Suite 2W1 000 

Wilbur Wright Building 

800 fudependence A venue, SW 

P.O. Box 20636 

Atlanta, Georgia 30320 

(404) 305-5200 

(404) 305-5223 FAX 

Washington, DC 20591 · - ~ 07 <&-/ 

. f Foms ~o,,.-

Re: ill the Matter of Braille Battery, fuc. FAA Case No. 2011S0700298 ~o 1 a.- A t.Ofl t.Jff~ II o~d 

Enclosed herewith please find a copy of a request for hearing and the original and one copy of 

the Comp1aint in the above-referenced proceeding. 

The FAA requests that the hearing in this matter be held 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 of the 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 of the Regional Counsel 

Enclosures RECEIVED 

JUL 17 .. 2012 

HEARING DOCKET 
GRAY ROBINSON 

ATTORNEYS AT LAW 

Charles Fletcher 

813-273-5151 

CHARLES.FLETCHER(Ci?GRA Y-ROBINSON.COM 

VIA FACSIMILE ( 404) 305-5223 

AND U.S. EXPRESS MAIL 

· Gerald A. Ellis, Esq. 

Office of the 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 

JUL 2 2012 

~- \ ··. .. ,,, _.., ,, \. 

Response, Request for Hearing and Request for Extension of Time 

Notice of Proposed 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 

in receipt of the Notice of Proposed Civil Penalty dated May 29, 2012 and received by Braille 

Battery on May 31, 2012 (the "Notice"). My client has elected to request a hearing and seek a 

consultation with yourself or other appropriate officials in the FAA Regional Office. Please find 

attached the Election of Rights. 

Braille Battery would prefer to work cooperatively with FAA to resolve this matter without the 

time and expense of litigation, and in this 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 of the U.S. Department of Transportation 

("USDOT") Hazardous Materials Rules ("HMR"), whether it is appropriate for the Federal 

Aviation Administration (the "FAA'') to seek civil penalties at this time, and the magnitude of a 

civil penalty, should any civil penalty be appropriate. 

As I am sure you are aware, the application of the 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 changing products in the 

marketplace as technology progresses. For example, in a civil penalty appeal the FAA 

Administrator found that the civil penalties were imposed based on the mistaken belief that a 

www.gray-robinson.com 
GRAYROBINSON 

PROFESSIONAL ASSOCIATION 

Gerald A. Ellis, Esq. 

June 29, 2012 

Page2 

regulated product was banned from transport on passenger aircraft, when in fact it was only 

banned in certain forms. See In the Matter ofVillamor Tabula, FDMS No. FAA-2008-0883. 

The Notice in this case is based on a similar misapplication ofthe USDOT HMR. 

Braille Battery is providing the most complete information it has been able to assemble within 

the time available to respond to the Notice. We request an extension of time of'an additional 

30 days to supplement the materials provided herein. 

Braille Battery disputes each alleged violation and the associated proposed penalties set forth in 

the Notice on the following grounds: 

1. Alleged violation is already subject to USDOT enforcement and has been resolved 

Please note that that Braille Battery has already been subject to enforcement by USDOT on this 

shipment and issue under the USDOT HMR. Specifically, USDOT has already sought and 

assessed negotiated penalties pursuant to 49 U.S.C. §5123(a) and 49 C.F.R. Chapter 172 for 

transport of a battery via FedEx intended for Mr. Richard Purcell in Wadsworth, Ohio on March 

8, 2012. See Pipeline and Hazardous Materials Safety Administration ("PHMSA") September 1, 

2011 Notice of Probable 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, in part, the result of a report by FAA employee Mark Gentile 

regarding the March 8, 2011 shipment, the subsequent inspection on April12, 2011 ofthe Braille 

Battery Sarasota facility by USDOT officials, and the PHMSA Notice of Probable Violation. 

All of these issues were addressed and resolved in the Compromise Agreement entered into 

between Braille Battery and PMSHA. See attached Compromise Order, PHMSA Case No. 11-

0095-BAT-SO. 

The penalties paid under this Compromise Agreement were for exactly the same event and as 

such the USDOT does not have the authority to seek additional penalties for these alleged 

violations ofUSDOT Hazardous Materials Regulations. 

IfF AA insists on seeking additional fmes on this matter we request an opportunity to discuss this 

with you directly via telephone or in person·. In addition, we provide the following information 

for FAA's consideration, without conceding or otherwise accepting the validity ofFAA's Notice 

or proposed civil penalties. Braille Battery reserves all rights in this regard. 
GRAYROBINSON 

PROFESSIONAL ASSOCIATION 

Gerald A. Ellis, Esq. 

June 29, 2012 

Page3 

2. Notice of Proposed Civil Penalty misstates material facts 

A critical misstatement in the Notice is the incorrect identification of the type ofbattery 

presented for shipment by Braille Battery on March 8, 2011. Braille Battery sought to ship a 

"lithium-ion" battery not a "lithium" battery. This is a substantial and material misstatement. 

Subsequent allegations in the Notice stem from the mistaken beliefthat the battery at issue is a 

"lithium" battery. This differentiation is apparent from the product name: "Micro-Lite LithiumIon Battery." 

The Notice incorrectly identifies the battery presented for shipment as a "primary 

(nomechargeable) lithium battery or cell." This also a misstatement of a material fact. The 

battery presented for shipment was a secondary (rechargeable) battery. 

These differentiations are important because HMR 49 C.F.R. § 172.102 special provision A1 00 

expressly provides: "Secondary (rechargeable) lithium batteries and cells are authorized aboard 

passenger carrying aircraft in packages that do not exceed a gross weight of 5 kg." The lithiumion battery presented for shipment was under 3 kg. 

3. Proposed penalty exceeds statutory authority and does 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 penalty in 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 either multiple or supplemental penalties. The Notice and our information indicate that 

there was no property damage or injury of any sort associated with the alleged violation. In fact, 

the battery at issue was not, in fact, transported as air freight, the packaging remained intact at all 

times and there is no indication that any material risk was ever posed to any person or any 

property. 

Under 14 C.F.R. §13.16(c) FAA is required to consider: 

(1) The nature, circumstances, extent, and gravity of the violation; 

(2) With respect to the violator, the degree of culpability, any history of prior violations, 

the ability to pay, and any effect on the ability to continue to do business; and 

(3) Such other matters as justice may require. 

In the instant case, there was a single alleged action that is being cited by FAA. Each violation 

alleged was the result of a single allegedly mislabeled box presented to FedEx in accordance 

with FedEx's published requirements for shipping. In fact, Braille Battery followed precisely the 

published FedEx standards applicable for the battery at issue. Moreover, Braille Battery 
GRAYROBINSON 

PROFESSIONAL ASSOCIATION 

Gerald A. Ellis, Esq. 

June 29,2012 

Page4 

believed they had complied with the applicable hazardous materials shipping requirements under 

USDOT FIRM rules and guidelines. 

Braille Battery does not have ?TIY enforcement or compliance history with FAA. As such Braille 

Battery should be treated first time violator under 14 C.P.R. §13.16(c). 

Moreover, the fine is excessive considering the gravity of the violation and any alleged 

culpability by Braille Battery. Other published decisions regarding alleged mislabeling of 

hazardous materials for air transport have resulted in civil penalties from $3,750 to $50,000. 

One of these cases was for transport of79 drums ofhazardous materials. The comparison of79 

drums of hazardous materials to a single 3 kg battery product is obvious. A proposed penalty of 

$78,000 is simply not proportionate to the alleged violation. In another case when the FAA 

Administrator determined that the product was not, in fact, completely banned from passenger 

aircrafts, the civil penalty was reduced dramatically. See In the Matter ofVillamor Tabula, 

FDMS No. FAA-2008-0883. As indicated above, the Notice is based on the mistaken beliefthat 

the battery at issue is banned from passenger aircrafts. 

If any violation ofHMR occurred it was not due to a lack of effort or interest in complying with 

HMR. Braille Battery has 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 of its 

products, efforts to meet both domestic and international regulations, and/or efforts to comply 

with the shipping requirement of the carrier FedEx. The lack of intent of the respondents in civil 

penalty cases have been cited by ALJ s and the FAA Administrator as a basis for reducing 

penalties based lack of significant culpability. Said another way, when the evidence indicates the 

respondent did not intentionally violate the HMR, the civil penalty should be significantly 

reduced. 

Also of importance is that Braille Battery has engaged in significant corrective action after the 

Aprill2, 2012 USDOT inspectionreferenced above. Braille Battery worked with PHMSA to 

correct all of the indentified deficiencies. Braille Battery has an ongoing effort to ensure 

continued compliance with the HMR and all requirements of commercial carriers such as FedEx. 

Braille Battery can provide additional evidence of this corrective action if granted the requested 

30-day extension of time to supplement this response. 

Finally, the proposed penalty of $78,000 will adversely impact the ability of Braille Battery to 

continue to do business. Attached is Braille Battery's Balance Sheet from the first quarter of 

2012. Braille Battery can provide additional evidence of its fmancial condition if granted the 

requested 30-day extension of time 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 ongoing business concern. Please note 
GRAYROBINSON 

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 of Information Act. 

4. Proposed Notice of Civil Penalty does not provide legally sufficient notice 

The proposed Notice of Civil Penalty simply states that a penalty of$78,000 is proposed. There 

is no explanation of how that number was calculated, how that proposed penalty is justified or 

apportioned between the alleged HMR standards referenced in the Notice, or what statutory or 

other factors were considered when calculating the proposed civil penalty. Without more 

specific information regarding the method of calculation or assessment of the penalties consistent 

with the Hazardous Materials Transport Act, 14 C.P.R. §13.16(c), or other USDOT 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 of time to make a 

counteroffer for at least 30 days, and until such time as FAA makes 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 of this matter. 

CF/lmw 

Attachments: 

Sincerely, 

Charles Fletcher 

1. Election of Rights on behalf of Braille Battery (via facsimile and U.S. Express Mail) 

2. Notice of Proposed Civil Penalty dated May 29, 2012 (via U.S. Express Mail) 

3. PHMSA Notice ofProbable Violation dated September 1, 2011 (via U.S. Express Mail) 

4. Compromise Order, PHMSA Case No. 11-0095-BAT-SO (via U.S. Express Mail) 

5. Braille Battery Balance Sheet (via U.S. Express Mail) 

cc: FAA Hearing Docket (w/ attachments) (via FedEx) 

# 3261341 vi 
U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

FEDERAL AVIATION ADMINISTRATION 

FEDERAL AVIATION ADMINISTRATION, 

Complainant, 

vs. 

BRAILLE BATTERY, INC. 

Respondent. 

JUDGE NOT YET ASSIGNED 

FAA Docket No. [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 of Proposed Civil Penalty that the FAA proposed 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 by Bnrille 

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's Certification or Declaration of Dangerous Goods. 
5. On or about March 8, 2011, the above-mentioned shipment was transported to a 

Federal Express sort facility in Bradenton, Florida for air transportation. · 

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-Ion battery. 

b. The battery 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 of electrical force. 

8. (a) The above-described "Braille Battery, Micro-Lite, Lithium-Ion battery" is 

classified as a hazardous material under the Department of Transportation Hazardous Materials 

Regulations (HMR) (49 C.F.R. § 172.101). 

(b) The proper shipping name of the material is Lithium battery. It is in 

Hazard Class 9 (Miscellaneous), Packing Group II, and has an assigned identification number of 

UN3090 (or 3480). The proper label is "CLASS 9". 

(c) The above-described "Braille Battery, Micro-Lite, Lithium-Ion battery" is 

a secondary (rechargeable) lithium battery or cell. 

9. Braille Battery offered the above-described shipment ofhazardous material for 

transportation by air without shipping papers that included: 

(a) the assigned identification number prescribed for each hazardous material; 

(b) the proper shipping name prescribed for each hazardous material; 

(c) the hazard class prescribed for each hazardous material; 

(d) the packing group prescribed for each hazardous material; 

(e) the total net mass per package of each hazardous material; and, 

(f) the number and type of packages containing hazardous material. 

10. Braille Battery offered the above-described shipment ofhazardous material for· 

transportation by air and failed to: 

(a) certify that the materials were in accordance with the HMR ( 49 C.F.R. §§ 

171, et seq.) by printing on the 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 in this 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 of each 

hazardous material contained therein; 

(b) the outer container was not marked with the assigned identification 

number of each hazardous material contained therein; 

(c) a "CLASS 9" label was not affixed to the outer container. · 

12. Braille Battery offered the above-described shipment of hazardous 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 of its hazmat employees was properly trained 

in accordance with the prescribed requirements as set forth in Section 172.704. 

15. Braille Battery offered the above-described combination package ofhazardous 

material for transportation by air when it was not properly packaged for transportation by air. 

III. 

16. By reason ofthe above~ violated the following Department of Transportation 

Hazardous Materials Regulations (Title 49 of the Code of Federal 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 of this subchapter, or an exemption, approval, or registration issued 

under this subchapter or under subchapter A of this chapter. 
2. Sections 172.200(a) and 172.202(a)(l) in that Braille Battery offered a 

hazardous material for transportation and failed to describe the hazardous material on shipping 

papers including the identification number prescribed for the material as shown in Column 4 of 

the § 172.101 Table, in the manner required by this 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) in that Braille Battery offered a 

hazardous material for transportation and failed to describe the hazardous material on shipping 

papers including the hazard class or division number prescribed 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 Battery offered a 

hazardous material for transportation and failed to describe the hazardous material on shipping 

papers including the packing group in Roman numerals, as designated for the hazardous material 

in Column 5 of the § 172.101 Table. 

6. Sections 172.200(a) and 172.202(a)(6) in that Braille Battery offered a 

hazardous material for transportation by aircraft and failed to describe the hazardous material on 

shipping papers showing the total mass per package, unless a gross mass is indicated in Columns 

(9A) or (9B) of the§ 172.101 Table in which case the total gross mass per package must be 

shown; or , for Class 7 materials, the quantity of radioactive must be shown by activity. 

7. Sections 172.200(a) and 172.202(a)(7) in that Braille Battery offered a 

hazardous material for transportation and failed to describe the hazardous material on shipping 

papers indicating the number and type of packages (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 certify that the material was offered for transportation in 

accordance with this subchapter by printing on the shipping paper containing the required 

shipping description one ofthe certifications set forth in this part. 

9. Section 172.204(c)(2) in that Braille Battery offered a hazardous material 

to an aircraft operator for transportation by air and failed to provide two copies of the 

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 of the applicable air transport requirements have been met." 
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 of the 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 of its 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 or battery, a lithium polymer cell or battery, or a 

lithium-ion cell or battery, and failed to package it in combination packagings conforming to the 

requirements of part 178, subparts Land M, of this subchapter at the Packing Group II 

performance level. The lithium battery or cell must be packed 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 of the 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); plastic jerricans (3H2); or 

metal jerricans (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 

($1 00,000 if death, serious illness, severe injury, or substantial property damage results), for each 

violation of the Department of Transportation Hazardous Materials Regulations. 

18. Under the facts and circumstances of this case, a civil penalty of$78,000 is 

appropriate. 
WHEREFORE, the Agency, by counsel respectfully requests that the Administrative Law Judge 

enter an order that Respondent be assessed a civil penalty in the amount of $78,000. 

Respectfully submitted this \ lJ"' day of July, 2012. 

GERALD k#/.~ A. ELLIS 

Attorney 

Office of the 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 if appropriate, not later than 30 days after the date 

shown on the Certificat~ of Service 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 A venue, SW 

Washington, DC 20591 

Charles Fletcher, Esq. 

Gray Robinson, P .A. 

201 N. Franklin St., Suite 2200 

Tampa, FL 33602 

Le ssi tant 

Office of the Regional Counsel 

.• 1 0 7012 

Dated 

(original + 1 copy)