UNITED STATES DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS RECEIvED WASHINGTON, D.C. 

IN THE MATTER OF 

TGIFREIGHT 

FAA DOCKET NO. CP10NM0012 

(Civil Penalty Action) 

DMS NO. FAA-2010-1079 

COMPLAINANT'S REBUTTAL BRIEF 

JUN- 5 2013 

HEARING DOCKET 

The issue is whether Respondent ("TGI Freight" or "the Company") knowingly violated 

the HMR. On that, the parties agree. The parties also agree that TGI Freight was hired by 

Lockheed Martin/Parsons Corporation as a hazmat shipping specialist to prepare and ship hazmat 

items for the Misty Fjords weather camera project to Ketchikan, Alaska. (Exhibit R-13). The 

parties agree that TGI Freight then offered four individual boxes of 12 each, 9.3-ounce tubes of 

Unitex Pro-Poxy 400 to Alaska Airlines for air transportation to Ketchikan, Alaska. !d. 

Additionally, the parties agree that there were no specific hazard markings or labelings to 

indicate that the flashpoint of the material was 65F and that it is to be treated as a "Flammable 

Liquid." (Exhibit C-19; Tr. 163, line 16). 

Where it appears the parties disagree is whether TGI Freight acted reasonably under the 

statute, 49 U.S.C. § 5123(a)(1), which provides: "A person acts knowingly when-( A) the 

FAA's Rebuttal Brief 

In the Matter ofTGI Freight 

Docket No. CP!ONM0012 

Page 1 of7 
person has actual knowledge ofthe facts giving rise to the violation; or (B) a reasonable person 

acting in the circumstances and exercising reasonable care would have that knowledge." The 

Complainant's ("Federal Aviation Administration" or "FAA") position is quite simple. A person 

who offers a shipment to an airline for transportation by air has a duty to know what he is 

shipping. This duty is imposed by the above statute, which is a statute that requires inquiry, 1 and 

the HMR, which require each shipper of hazardous materials to properly package, classify, 

describe, mark, and label the shipment or ensure these actions have been taken.2 In simple terms, 

a person has a duty to know what he is shipping. 3 The parties agree that TGI Freight knew the 

Company was offering four individual boxes of 12 each, 9.3-ounce tubes ofUnitex Pro-Poxy 

400 to Alaska Airlines for air transportation to Ketchikan, Alaska. Therefore, TGI Freight had 

actual knowledge of the facts giving rise to the violations. 

Given that whether something is a hazardous material is a question oflaw rather than a 

fact, the FAA need not prove that TGI Freight was aware that the items in the shipment were 

hazardous. 4 Thus, under 49 U.S.C. § 5123(a)(l)(A), TGI Freight knowingly and improperly 

offered Pro-Poxy 400 to Alaska Airlines for air transport to Ketchikan, Alaska. TGI Freight thus 

committed the violations as alleged in the Complaint and should be held liable for the civil 

penalty amount for the reasons given in the FAA's Closing Brief. 

Even under an analysis of 49 U.S.C. § 5123(a)(l)(B), TGI Freight knowingly and 

improperly offered Pro-Poxy 400 to Alaska Airlines for air transport to Ketchikan, Alaska. 49 

U.S.C. § 5123(a)(l)(B) provides that "a reasonable person acting in the circumstances and 

1 In the Matter of Interstate Chemical Company, Inc., FAA Order No. 2002-29 (December 2, 2002). 2 See, e.g.,§§ 171.2(!) and 172.204(c)(3)(i)(B) of the HMR. 3 In the Matter of Riverdale Mills Corporation, FAA Order No. 2003-10 (September 10, 2003). 4 Riverdale Mills Corporation, supra; In the Matter of Smalling, FAA Order No. 94-31 (September 30, 1994). 

FAA's Rebuttal Brief 

In the Matter of TGI Freight 

Docket No. CPIONM0012 

Page 2 of7 
exercising reasonable care would have that knowledge." The question here is whether TGI 

Freight acted reasonably. The FAA contends that TGI had at least four good reasons to suspect 

that the Pro-Poxy 400 was hazardous and therefore did not act reasonably. 

TGI Freight would like to have your Honor accept their position that a company can 

absolve itself of all regulatory responsibility by claiming that the fact that the manufacturer failed 

to mark the small tubes of the Pro-Poxy 400 or label the four boxes that Mr. Dexheimer brought 

over to TGI Freight that the manufacturer is therefore somehow 100 percent responsible for TGI 

Freight's failure to properly package, mark, label, and otherwise properly prepare the Pro-Poxy 

400 for air shipment to Ketchikan, Alaska. While 49 C.P.R. Section 171.2(b) does permit a 

person who offers a hazardous material for transportation to "rely on information provided by 

another offeror," the manufacturer, Unitex, is not a shipper in this case. There was no evidence 

presented at the hearing that Unitex ever offered Pro-Poxy 400 for air shipment. (Tr. 196, line 

9). In fact, the Pro-Poxy 400 entered the stream of commerce on February 19, 2010, as a direct 

result of the actions of Mr. Gayton from Lockheed Martin/Parsons Corporation and 

Mr. Dexheimer from the FAA taking the Pro-Poxy 400 over to Mr. Jeueneman at TGI Freight 

because they suspected that it likely was hazardous and thus needed to be taken to an expert 

hazmat shipper in order to get it out to the project site. If anyone else was a shipper in this case 

other than TGI Freight and its employees, it could only possibly have been Mr. Gayton from 

Lockheed Martin/Parsons Corporation, or Mr. Dexheimer from the FAA. What TGI Freight 

should have done was paid more attention to the fact that when Mr. Dexheimer brought the items 

over to be shipped, he specifically mentioned that he thought the items that he had, which 

FAA's Rebuttal Brief 

In the Matter ofTGI Freight 

Docket No. CPIONM0012 

Page 3 of7 
included the Pro-Poxy 400, were hazmat. (Tr. 75). Had they not been, Mr. Dexheimer would 

have taken them to Alaska Airlines for transport himself. (Tr. 71 ). 

Second, it is undisputed that TGI Freight, alone, performed all the shipping functions in 

this case. TGI Freight's position in this matter would just ignore the duties placed on the 

Company as a shipper by the statute and regulation and attempt to shift to others what, under the 

statute and regulation, are clearly TGI Freight's duties. Such a shift would clearly be unfair and 

against the regulatory scheme set out. See 14CFR 171.2(f) (Each carrier who transports a 

hazardous material in commerce may rely on information provided by the offeror of the 

hazardous material or a prior carrier unless the carrier knows or, a reasonable person, acting in 

the circumstances and exercising reasonable care, would have knowledge that the information 

provided by the offeror or prior carrier is incorrect.) Again, the manufacturer, Unitex, as TGI 

Freight claims, had absolutely no direct involvement in putting these four boxes ofPro-Poxy 400 

into the stream of air commerce via Alaska Airlines on February 19, 2010. It was Lockheed 

Martin/Parsons and the FAA that needed the Pro-Poxy for the Misty Fjords weather camera 

project and knew they needed a hazmat expert to assist in shipping the hazardous materials by 

atr. 

Third, TGI Freight was an expert in the shipment of hazardous materials. As an expert in 

the shipment of hazardous materials, the standard of care to which the Company is subjected 

should not be that of just an ordinary shipper. They hold themselves out to the public as having 

more knowledge in the area of shipping hazardous materials than the average person. They get 

paid for having that knowledge. They were selected by Lockheed Martin/Parsons and the FAA 

for that expertise to ship the hazardous materials for the Misty Fjords project from Anchorage to 

FAA's Rebuttal Brief 

In the Matter of TGI Freight 

Docket No. CPIONM0012 

Page 4 of7 
Ketchikan by air because Lockheed Martin/Parsons and the FAA did not have that expertise. 

(Tr. 71). TGI Freight's duty to inquire should be much higher than that of just an ordinary 

reasonable person. Given that the personnel at Alaska Airlines had no trouble quickly 

determining that the Pro-Poxy 400 was hazardous, it is reasonable to expect that TGI Freight 

should also have known that the Pro-Poxy 400 was hazardous. 

Fourth, both Mr. Jueneman and Mr. Clark saw the trigger terms "epoxy" and "adhesive 

anchors" on the packaging and product tubes of the Pro-Poxy 400 that they were going to offer 

to Alaska Airlines for air transportation to Ketchikan on behalf of Lockheed Martin/Parsons and 

the FAA. (Tr. 296; 346-8). Knowing that "epoxy" and "adhesive anchors" may or may not be 

hazardous defmitely puts anyone on notice that they should look further to find out if this 

particular product is hazardous. TGI Freight, in this case, failed to do so. They could have, as 

indicated in their procedures, checked the MSDS for the product. They did not. Alaska Airlines 

did. They could have called the manufacturer. They did not until after the FAA informed them 

of the violation. (Exhibit R -13). These actions are not the actions of a reasonable shipper. They 

are especially not the actions to be expected of a reasonable shipper who professes to be an 

expert in and gets paid for shipping hazmat. 

Thus, Not only did TGI Freight know that they were offering Pro-Poxy 400 to Alaska 

Airlines for air transportation to Ketchikan-the facts giving rise to the violations-but, by not 

learning enough about the shipment to prepare and offer it properly, TGI Freight breached its 

duty. TGI Freight, therefore, was not a reasonable person acting in the circumstances and 

exercising reasonable care. And, because the Pro-Poxy 400 is flammable and regulated by the 

FAA • s Rebuttal Brief 

In the Matter ofTGI Freight 

Docket No. CPIONMOOI2 

Page 5 of7 
HMR, at the time TGI Freight offered the shipment, the Company had not complied with the 

HMR. TGI Freight, therefore, knowingly violated each of the regulations cited in the complaint. 

Even if your Honor were to agree that TGI Freight appropriately relied upon the 

manufacturer's lack of hazardous markings and labels, the FAA has more than compensated TGI 

Freight for any reliance by them when the FAA greatly reduced its original action from $27,000 

to $15,000. Given that TGI Freight has not raised any other matter that warrants any further 

reduction in the amount calculated under the Matrix, the FAA requests that your Honor assess a 

Civil Penalty in this matter of$15,000. see TCI Corporation, supra ($15,000 civil penalty 

imposed even though respondent relied on manufacturer's negligence). 

Respectfully submitted this 31st day of May 2013. 

FAA's Rebuttal Brief 

In the Matter ofTGI Freight 

Docket No. CPlONMOOl2 

Page 6 of7 

HOWARD L. MARTIN, JR. 

Regional Counsel 

~ 

~v-n.~~.d 

By: ---------------------

Cheryl M. Jones 

Senior Attorney 
CERTIFICATE OF SERVICE 

Re: TGI Freight 

FAA Docket No. CP10NM0012 

DMS NO. FAA-2010-1079 

I certify that on this date I have served a copy of the FAA's Rebuttal Brief by placing it in the United 

States Mail, postage-prepaid, certified mail, return receipt requested, addressed as follows: 

Original and 1 Copy 

Federal Aviation Administration 

800 Independence Avenue, SW 

Washiogton, DC 20591 

ATTN: Heariog Docket Clerk, AGC-430 

Wilbur Wright Building-Suite 2Wl 000 

One Copy 

The Honorable Richard C. Goodwin 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E. (Ell-310) 

Washington, D.C. 20590 

Fax: 202-366-7536 

Rebecca J. Hozubin, Esq. 

Wilkerson Hozubio 

310 K Street, Suite 405 

Anchorage,AK 99501 

Fax: 907-276-5291 

1?7<U~ Mhe..JI Office of th egwnal Counsel 

222 West 7th A venue # 14 

Anchorage, Alaska 99513-7587 

FAA's Rebuttal Brief 

In the Matter of TGI Freight 

Docket No. CPIONM0012 

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