U,S, Department of Transportation Federal AviQtipn Administration Office ofthe Chief Counsel

U.S. CERTIFIED MAIL, RETURN-RECEIPT REQUESTED



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## ,.,:,\9 '{.016 ' Hearing Docket Federal Aviation Administration 800IndependenceAvenue,SVV VVashington, DC 20591

Attn: Hearing Docket Clerk, AGC-430 VVilbur VVright Building- Suite 2VV1000 RE: Inthe matter ofUnited Parcel Service, Inc., FAA DocketNo. CP- ; Case No. 2012S0700374 Enforcement Division Southern Team 1701 Columbia Avenue College Park, GA 30337



## MAR 1 4 2018 

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Enclosed are the original and one copy ofthe complaint in the above-referenced case. The Complainantrequests that the hearing beheld inAtlanta, GA and expects that the hearing inthis case will last one day. All correspondence to the Complainant inthis matter shouldbe directed to Ryan Landers, Attorney at: EnforcementDivision, Southern Team 1701 Columbia Avenue College Park, GA 30337 email: ryan.landers@faa.gov Telephone: (404) 305-5200 (main) ( 404) 305-5223 (fax) Respectfully,



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Attorney EnforcementDivision, Southern Team 1701 ColumbiaAvetme College Park, GA 30337 email: ryan.landers@faa.gov Telephone: (404) 305-5200 (main) (404) 305-5223 (fax) EnclosureFebruary 29, 2016

Federal AviationAdministration 600 Independence Avenue S.W. Wilbur WrightBldg.- Suite 2Wl000 Washington, DC 20591 Attention: HearingDocket ClerkAGC-430


### Re: FAAFileNo. 2012S0700374 Request for Hearing Dear Clerk: 

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**loddw~** ATTORNEYS Winston E Miller Member 502.568.0296 {t) 502.581.1087 (f) wmiller@fbtlaw.com



### VIA UPS Overnight and Regular U.S. Mail

Pursuant to 14 C.F.R. 13.16(g)(2)(ii) United Parcel Service, Inc. (an Ohio Corporation, "UPS Ground") and United Parcel Service Co. (a Delaware Corporation, "UPS Airlines") through its undersigned counsel hereby files a request for hearing regarding the Federal Aviation Administration's ("FAA's") Final Notice of Proposed Civil Penalty

- FAA File No. 2012S0700374 dated February 10, 2016 ("Final Notice") and received on February 16, 2016, in which the FAA proposed to assess a civil penalty in the amount of $3,250. This Request for Hearing is being made on behalf of UPS Ground and UPS Airlines because the Final Notice references and is based upon Notice ofProposed Civil Penalty FAA File No. 2012S0700374 dated September 4, 2014 whichwas issued againstbothUPS Ground and UPS Airlines.

WinstonE. Miller Counsel for UnitedParcel Service, Inc. and United Parcel Service Co.

400 West Market Street I 32nd Floor I Louisville, Kentucky 40202-3363 I 502.589.5400 Ifrostbrowntodd.com Offices in Indiana, Kentucky, Ohio, Tennessee, Virginia and West VirginiaFederal Aviation Administration Page 2 February 29,2016

cc: RyanLanders EnforcementDivision, SouthernTeam 1701 ColumbiaAvenue College Park, GA 30337 CERTIFICATE OF SERVICE I hereby certifythatthe foregoing Request for Hearing has been sent viaUPS overnight delivery, this 29th day ofFebruary 2016. Federal Aviation Administration 600 Independence Avenue, SW Wilbur Wright Bldg.

- Suite 2W1000 Washington, DC 20591 Attention: Hearing Docket Clerk (AGC-430) and a copyby certifiedmail- returnreceiptrequested andregular U.S. mail to: Ryan Landers EnforcementDivision, SouthernTeam 1701 ColumbiaAvenue College Park, GA 30337

OOOOOXA.0624664 4830-1176-2222vl Counsel for United Parcel Service, I'iic. and United Parcel Service Co.

400 West Market Street 132nd Floor 1Louisville, Kentucky 40202·3363 1502.589.5400 1frostbrowntodd.com Offices in Indiana, Kentucky, Ohio, Tennessee, Virginia and West VirginiaU.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS FEDERAL AVIATION ADMINISTRATION

FEDERAL AVIATION ADMINISTRATION, Complainant,
vs. FAA DocketNo. Judge UNITED PARCEL SERVICE COMPANY Respondent.
JUDGENOT YET ASSIGNED COMPLAINT The Federal Aviation Administration (FAA), by counsel, hereby files its Complaint, pursuantto Rule 208 ofthe Rules ofPractice (14 C.F.R. 13.208), and states as follows: I. 2

OnFebruary 10,2016, Respondent, United Parcel Service Company was advisedthrough a Final Notice ofProposed Civil Penalty that the FAA proposedto assess a civil penalty in the amount of$3,250. OnMarch 3, 2016, the Agency Attorney received a writtenrequest for a hearing from the Respondent. II. 1. On or about September 7, 2012, United Parcel Service, Inc. ("UPS") orits agent knowingly offered, for transportation by air, a specification fiberboard box containing hazardous materials ("shipment") that was not properly prepared for air transportation. 2. The above-mentioned shipmentwas assignedUPS 2nd Day Airtracking number/air waybill number lZEW7 552 02 3005 7775. The shipmentwas originally offeredby Lambert Vet Supply, 714 5th Street, Fairbury, NE 68352, for

### air transportation to the consignee, Petsmart Inc., 7650 W. Latham Street, Phoenix, AZ 85043. 3



### 3. On or about September 10, 2012, employees at the UPS sort facility inLouisville, Kentucky discovered the shipment leaking. 4. The above-mentioned shipment contained six 8.5-ounce plastic containers of Merial, Frontline (Fipronil) Spray for Dogs (with sprayer-cap tops). 5. Further investigation showed one ofthe plastic containers leaked approximately 8 ounces ofthe above-described material into and through above-mentioned fiberboard box. 6. The fiberboard box described above was marked "Consumer Commodity, ORMD". 

### 7. At all times mentionedherein, the shipment was not accompaniedby a Shipper's Certification orDeclaration ofDangerous Goods. 8. a. Merial, Frontline (Fipronil) Spray for Dogs 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 Merial, Frontline (Fipronil) Spray is Isopropanol (Isopropyl Alcohol). It 

### is in Hazard Class 3 (Flammable Liquid), Packing Group II, and has an assigned identification number of UN1219. The proper label is FLAMMABLE LIQUID.
c. Ifproperly packaged for air transportation pursuant to 49 C.F.R. 

### § 173.27 the above-described material could have been renamed Consumer Commodity andreclassed as ORM-D-Air. 9. UPS offered the above-described shipment of hazardous material for transportation by air without shipping papers that included: (a) the assigned identification number prescribed for eachhazardous material; (b) the proper shipping name prescribed for eachhazardous 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 ofeachhazardous material; and, (f) 

### the number and type ofpackages containing hazardous material.10. UPS offeredthe above-described shipment ofhazardous material for transportationby air and failed to: (a) certifythat the materials were in accordance with the HMR (49 C.F.R. §§ 171, et seq.) byprinting on the shipping papers the certification set forth in§ 172.204(a)(l), 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. UPS offered the above-described shipment ofhazardous materials for transportationby air when: 4

(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 ofeachhazardous material contained therein; (c) a 'ORM-D-AIR" marking was not on the outer container. (d) a "FLAMMABLE LIQUID" label was not affixed to the outer container.
III. 21. As a result, UPS violated the following sections ofthe Federal Aviation Regulations: (a) 49 C.F.R. § 171.2(b) inthat UPS offered a hazardous material for transportation in commerce and failed to comply with all applicable requirements ofthis subchapter, or an exemption or special permit, approval, orregistration issued under this subchapter or under subchapter A ofthis chapter. There may be more than one offeror ofa shipment ofhazardous materials. Each offeror is responsible for complying with the requirements ofthis subchapter, or an exemption or special permit, approval, or registration issued under this subchapter or subchapter A ofthis chapter, with respect to any pre-transportationfunction that it performs or is required to perform; however, each offeror is responsible only for the specific pre-transportation functions that it performs or is required to perform, and each offeror may rely oninformation provided by another offeror,5 unless that offeror knows or, a reasonable person, acting inthe circumstances and exercising reasonable care, wouldhave knowledge that the information provided by the other offeror is incorrect. (b) 49 C.P.R.§ 171.2(e) inthat UPS offered or accepted a hazardous material for transportation in commerce whenthe 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, or registration issued under this subchapter or under subchapter A ofthis chapter. ( c ) 49 C.P.R. § 171.2(f) inthat UPS transported a hazardous material in commerce and failed to transport it in accordance with applicable requirements of this subchapter, or an exemption or special permit, approval, or registration issued under this subchapter or subchapter A ofthis chapter. Each carrier who transports a hazardous material in commerce may rely on informationprovided bythe offeror ofthe hazardous material or a prior carrier, unless the carrier knows or, a reasonable person, acting inthe circumstances and exercising reasonable care, would have knowledge that the information providedbythe offeror or prior carrier is incorrect. 22. In accordance with Section 5123(a) ofChapter 51, Title 49 ofthe United States Code ofTransportation, [49 U.S.C. Section 5123(a)], United Parcel Service, Inc. is liable for a civil penalty ofnot less than $450 for training violations, nor greater than $75,000, for each violation ofthe regulations ($175,000 ifdeath, serious illness, severe injury, or substantial property damage results). After reviewing all ofthe information contained in our investigative file, we propose to assess a civil penalty inthe amount of$3,250.

23. Under the facts and circumstances ofthis case, a civil penalty of$3,250 is appropriate. WHEREFORE, the Agency, by counsel respectfully requests that the Administrative LawJudge enter an orderthat Respondentbe assessed a civil penalty in the amount of$3,250. /'\ 

### ,., 

### LYL Respectfully submitted this 

## T day ofMarch, 2016.

MyanLanders

Attorney Enforcement Division, SouthernTeamPLEASE NOTE: Pursuantto Title 14 CFR Section 13.209(a), you are required to file a written answer to this Complaint, or a written Motionto Dismiss ifappropriate, not later than 30 days after the date shown onthe Certificate ofService which follows.
CERTIFICATE OF SERVICE I hereby certify that a copy ofthe foregoing Complainthas been mailed this date by Certified Mail, Return Receipt Requested, to the following: Hearing Docket Federal Aviation Administration 800 Independence Avenue, SW Washington, DC 20591

Attn: Hearing Docket Clerk, AGC-430 Wilbur Wright Building- Suite 2WIOOO Winston E. Miller Frost Brown Todd LLC 400 WestMarket Street, 32nd Floor Loui ville, KY

Program Analyst

Dated original and I copy 6