UNITED STATES DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS 

# RECEIvED

WASHINGTON, D.C.
IN THE MATTER OF TGIFREIGHT FAADOCKET NO. CP10NM0012 (Civil Penalty Action) DMS NO. FAA-2010-1079

COMPLAINANT'S REBUTTAL BRIEF 

## JUN- 52013 

## HEARING DOCKET

The issue is whether Respondent ("TGI Freight" or "the Company") knowingly violated the HMR. Onthat, 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 AlaskaAirlines 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 ofthe 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: "Aperson acts knowingly when-( A) the FAA's Rebuttal Brief In the Matter ofTGI Freight Docket No. CP!ONM0012 Page 1 of7personhas actual knowledge ofthe facts giving rise to the violation; or (B) a reasonable person acting in the circumstances and exercising reasonable care would have thatknowledge." The Complainant's ("Federal Aviation Administration" or "FAA") position is quite simple. A person who offers a shipmentto an airline for transportation by air has a duty to knowwhathe is shipping. This duty is imposed by the above statute, which is a statute that requires inquiry, 1 and the HMR, whichrequire each shipper ofhazardous materials to properlypackage, classify, describe, mark, and label the shipment or ensure these actions have beentaken.2 In simple terms,
a personhas a duty to knowwhat 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 AlaskaAirlines for airtransportation to Ketchikan, Alaska. Therefore, TGI Freight had actual knowledge ofthe facts giving rise to the violations. Given that whether something is a hazardous material is a question oflawrather than a fact, the FAA need not prove that TGI Freight was aware thatthe items in the shipment were hazardous. 4 Thus, under 49 U.S.C. § 5123(a)(l)(A), TGI Freightknowingly and improperly offered Pro-Poxy 400 to Alaska Airlines for air transport to Ketchikan, Alaska. TGI Freight thus committedthe 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 of49 U.S.C. § 5123(a)(l)(B), TGI Freight knowingly and improperly offered Pro-Poxy400 to Alaska Airlines for air transport to Ketchikan, Alaska. 49 U.S.C. 

### § 5123(a)(l)(B) provides that "areasonable person acting in the circumstances and

1In the Matter of Interstate Chemical Company, Inc., FAA OrderNo. 2002-29 (December 2, 2002). 2 See, e.g.,§§ 171.2(!) and 172.204(c)(3)(i)(B) ofthe HMR. 3 In the Matter of RiverdaleMills Corporation, FAA OrderNo. 2003-10 (September 10, 2003). 4 RiverdaleMills Corporation, supra; In the Matter of Smalling, FAA OrderNo. 94-31 (September 30, 1994). FAA's Rebuttal Brief Inthe Matter ofTGI Freight Docket No. CPIONM0012 Page 2 of7exercising 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 positionthat a company can absolve itselfofall regulatory responsibility by claiming that the fact thatthe manufacturer failed to markthe small tubes ofthe Pro-Poxy 400 or label the four boxes that Mr. Dexheimerbrought
overto TGI Freightthatthe manufacturer is therefore somehow 100 percent responsible for TGI Freight's failure to properly package, mark, label, and otherwise properlyprepare the Pro-Poxy 400 for air shipmentto Ketchikan, Alaska. While 49 C.P.R. Section 171.2(b) does permit a personwho offers a hazardous material for transportation to "rely oninformationprovided by another offeror," the manufacturer, Unitex, is 

### not a shipper inthis case. There was no evidence presented at the hearing that Unitex ever offered Pro-Poxy 400 for air shipment. (Tr. 196, line 9). Infact, the Pro-Poxy 400 entered the stream ofcommerce on February 19, 2010, as a direct result ofthe actions ofMr. Gayton from Lockheed Martin/Parsons Corporation and Mr. Dexheimer from the FAAtaking the Pro-Poxy 400 overto Mr. Jeueneman at TGI Freight because they suspectedthat it likely was hazardous andthus needed to be takento an expert hazmat shipper in order to get it out to the project site. Ifanyone else was a shipper inthis case otherthanTGI Freight and its employees, it could only possibly have beenMr. Gaytonfrom Lockheed Martin/Parsons Corporation, or Mr. Dexheimer from the FAA. What TGI Freight should have done was paid more attention to the fact that whenMr. Dexheimerbroughtthe items
overto be shipped, he specifically mentioned that he thought the items that he had, which

FAA's Rebuttal Brief Inthe Matter ofTGI Freight Docket No. CPIONM0012 Page 3 of7included the Pro-Poxy 400, were hazmat. (Tr. 75). Had they not been, Mr. Dexheimer would have taken themto 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 positioninthis matter wouldjustignore the duties placed onthe Company as a shipper bythe 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 providedbythe offeror ofthe 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 providedbythe offeror or prior carrier is incorrect.) Again, the manufacturer, Unitex, as TGI Freight claims, had absolutely no direct involvement inputting these four boxes ofPro-Poxy 400 into the stream ofair commerce via AlaskaAirlines onFebruary 19, 2010. Itwas Lockheed Martin/Parsons and the FAAthat 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 inthe shipment ofhazardous materials. As an expert in the shipment ofhazardous materials, the standard ofcare to whichthe Company is subjected should not be that of just an ordinary shipper. They hold themselves out to the public as having
more knowledge inthe area ofshipping hazardous materials than the average person. They get paid for having that knowledge. They were selectedbyLockheed 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 ofTGI Freight Docket No. CPIONM0012 Page 4 of7Ketchikan by air because Lockheed Martin/Parsons and the FAA did not have that expertise. (Tr. 71). TGI Freight's duty to inquire should be muchhigher than that of just an ordinary reasonable person. Given that the personnel at AlaskaAirlines had no trouble quickly determining thatthe Pro-Poxy 400 was hazardous, it is reasonable to expect that TGI Freight should also have known thatthe Pro-Poxy 400 was hazardous. Fourth, both Mr. Jueneman and Mr. Clark sawthe trigger terms "epoxy" and "adhesive anchors" onthe packaging and product tubes ofthe Pro-Poxy 400 that they were going to offer to AlaskaAirlines for air transportation to Ketchikan onbehalfofLockheed 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 thatthey should look further to find out ifthis particularproduct is hazardous. TGI Freight, in this case, failed to do so. They could have, as indicated intheir 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 ofthe violation. (Exhibit R-13). These actions are not the actions ofa reasonable shipper. They
are especially notthe actions to be expected ofa reasonable shipper who professes to be an expert in and gets paid for shipping hazmat. Thus, Notonly did TGI Freight knowthat they were offering Pro-Poxy 400 to Alaska Airlines for air transportation to Ketchikan-the facts giving rise to the violations-but, bynot learning enough about the shipment to prepare and offer it properly, TGI Freightbreached its duty. TGI Freight, therefore, was not a reasonable person acting inthe circumstances and exercising reasonable care. And, because the Pro-Poxy 400 is flammable and regulated by the

FAA•s Rebuttal Brief Inthe Matter ofTGI Freight DocketNo. CPIONMOOI2 Page 5 of7HMR, at the time TGI Freight offered the shipment, the Companyhad not complied withthe HMR. TGI Freight, therefore, knowingly violated each ofthe regulations cited inthe complaint.
Even ifyour Honor were to agree that TGI Freight appropriately relied uponthe manufacturer's lack ofhazardous markings and labels, the FAA has more than compensated TGI Freight for any reliance bythem whenthe FAA greatly reduced its original action from $27,000 to $15,000. Given that TGI Freight has notraised any other matter that warrants any further reduction inthe amount calculated under the Matrix, the FAArequests that your Honor assess a Civil Penalty inthis matter of$15,000. 

### see TCI Corporation, supra ($15,000 civil penalty imposed even though respondent relied onmanufacturer's negligence).
Respectfully submitted this 31st day ofMay 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 AttorneyCERTIFICATE OF SERVICE
Re: TGI Freight FAA DocketNo. CP10NM0012 DMS NO. FAA-2010-1079 I certify that on this date I have served a copy ofthe FAA's Rebuttal Briefby placing it inthe United States Mail, postage-prepaid, certified mail, return receiptrequested, addressed as follows: Original and 1 Copy Federal Aviation Administration 800 Independence Avenue, SW Washiogton, DC 20591 ATTN: Heariog Docket Clerk, AGC-430 Wilbur WrightBuilding-Suite 2Wl000 One Copy
The Honorable Richard C. Goodwin Office ofHearings, M-20 U.S. Department ofTransportation 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 ofth egwnal Counsel 222 West 7th Avenue #14 Anchorage, Alaska 99513-7587

FAA's Rebuttal Brief In the Matter ofTGI Freight Docket No. CPIONM0012 Page7of7