U.S. Department ofTransportation
Federal Aviation Administration



### ·MAY 8 Southern Region Office ofthe Regional Counsel

CERTIFIED- RETURN RECEIPT REQUESTED Hearing Docket Clerk FAA, AGC-430, Suite 2Wl000 Wilbur Wright Building 800 Independence Avenue, SW Washington, DC 20591 P.O. Box 2.0636 Atlanta, Georgia 3032.0 (404) 305-5200 (404) 305-5223 FAX

Re: In the Matter ofHealthtexDistributors, Inc., FAA CaseNo. 2012S0700278 Enclosed herewith please find a copy ofarequest for hearing and the original and one copy of the Complaint in the above-referencedproceeding. The FAArequests thatthe hearing in this matter be held inthe Miami, Florida area, and expects thatthe hearing will last one day. Please address all communications for the FAAto the undersigned, at: Federal AviationAdministration Office ofthe Regional Counsel, AS0-7 Southern Region P.O. Box 20636 Atlanta, Georgia 30320 Telephone: (404) 305-5200, facsimile (404) 305-5223. Sincerely,

.

# ~'.4/1~'1/WA ANDREAMICHELL Attorney Office ofthe Regional Counsel Enclosures 

# RECE\VED MAY 14

## 2013 

# H!ARiNG DOCKETApri\23, 2013

FederalAviation Administration 600 Independence Avenue SW WilburWright Building Suite 2W1000**Wa~hington,** DC**~0591** Attention: Hearing Docket Clerk, AGC-430 Ref: Case 201250700278 To Whom it May Concern: 

### APR 2 6 2013 '"

In view that we continue to dialogue with your council, 

### we would like to request a hearing on the above referenced case and trust this matter will come to a resolve prior to the hearing date. Cordially, 

# 'y; ( C

## /.J~J G

# /(__~~do~~~~

Natividad R. Elias President

CC :Andrea Michelle Harper, Attorney Office ofthe Regional Counsel (404)305-5200

SENT VIA FEDERAL EXPRESS #8010 5669 2671

3555 N.W. 4P' Street, Miami, Florida 33142- Telephone: (305) 633-7900- Fax: (305) 633-7666

### U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS FEDERALAVIATION ADMINISTRATION



### FEDERAL AVIATION ADMINISTRATION, Complainant,

vs. HEALTHTEX DISTRIBUTORS, INC. Respondent.

JUDGE NOT YET ASSIGNED FAA DocketNo. Judge

COMPLAINT 

### The Federal Aviation Administration (FAA), by counsel, hereby files its Complaint, pursuant to Rule 208 ofthe Rules ofPractice (14 C.P.R. 13.208), and states as follows: I. I. 

### On or about June 12, 2012, Healthtex Distributors, Inc. (Healthtex) knowingly offered to Federal Express (FedEx) two non-specification fiberboard boxes (shipment) containing hazardous materials for transportationby air. 2. The shipment, assigned FedEx air waybill 871205015943, was offered by Healthtex for International Economytransportationto Caguas, Puerto Rico. 3. At all times mentioned herein, the shipment was not accompanied by a Shipper's Certification or Declaration ofDangerous Goods. 4. On or about June 12, 2012, ground-handling personnel at the FedEx sort facility inMiami, Florida discoveredthe shipment. 5. One ofthe fiberboard boxes described in paragraph 1 contained, in part, an 8- ounce spray bottle ofMimitos Baby Cologne, an 8-ounce spray bottle ofMimitos Violets Cologne, and an 8-ounce bottle ofBaby nen Cologne. 6. Mimitos Baby Cologne, Mimitos Violets Cologne, and Baby nen Cologne are classified as a hazardous material under the Department of Transportation Hazardous Materials Regulations (HMR) (49 C.P.R.§ 172.101).

### 7. The proper shipping name ofeachproduct described in paragraph 6 is Perfumery Perfumery products (with flammable solvents). It

### is in Hazard Class 3, Packing Group III, 

### and has an assigned identification number of UN1266. 

### The proper label is FLAMMABLE LIQUID. 

### 8. Healthtex offered the shipment ofhazardous material for transportation by air without shipping papers that included: (a) the assigned identification numberprescribed for eachmaterial; (b) the proper shippingname prescribed for eachmaterial; (c) the hazard class prescribed for eachmaterial; (d) the packing group prescribed for each material; (e) the total net mass perpackage; and (f) 

### the number and type ofpackages. 9. Healthtex offeredthe shipment ofhazardous material for transportation by air and failed to: (a) certify that the materials were in accordance with the HMR(49 C.P.R.§§ 171, et seq.) by printingthe certification set forth in§ 172.204(a) or § 172.204(c)(1) ofthe HMR; (b) prepare the required certifications in duplicate; and (c) add the following statementto the certification: " I declare that all ofthe applicable airtransportrequirements have been met." 

### 10. Healthtex offered the shipment ofhazardous materials for transportationby air and failed to: (a) mark the outer container with the proper shipping name ofeachhazardous material containedtherein; (b) markthe outer container withthe assigned identification number ofeach hazardous material contained therein; (c) markthe outer container with standard orientationmarkings; and (d) affix a FLAMMABLE LIQUID label to the outer container. 11. Healthtex offered the shipment of hazardous materials for transportation by air and failed to provide emergency response information. §172.602(b)(3)

### 12. Healthtex offered the shipment of hazardous materials for transportation by air and failed to provide an emergency response telephone number. §172.604(a)(3) 

### 13. Healthtex offered the shipment ofhazardous materials for transportation by air and failed to ensure that the hazmat employee responsible for preparing the shipment was properlytrained. §172.704(a)(l), (a)(2) and (a)(3) 

### 14. Healthtex offeredthe shipment ofhazardous materials for transportation by air and failed to use an authorizedpackaging for its transportation. 15. Byreason ofthe above, Healthtexviolated the following Department of Transportation Hazardous Materials Regulations (Title 49 ofthe Code ofFederal Regulations): (a) Section 171.2(e) in that Healthtex offered a hazardous material for transportation in commerce when the hazardous material was not properly classed, described, packaged, marked, labeled, and in condition for shipment. (b) Sections 172.200(a) and 172.202(a)(l) in that Healthtex offered a hazardous material for transportation and failed to describe the hazardous material on the shipping papers, including the identification number prescribed for the material as shown in Column 4 ofthe § 172.101 Table, inthe mannerrequiredby this subpart. (c) Sections 172.200(a) and 172.202(a)(2) in that Healthtex offered a hazardous material for transportation and failed to describe the hazardous material on the shipping papers, including the proper shipping name prescribed for the material in Column 2 of the §172.101 Table, in the mannerrequiredby this subpart. (d) Sections 172.200(a) and 172.202(a)(3) in that Healthtex offered a hazardous material for transportation and failed to describe the hazardous material on the shipping papers, including the hazard class or division prescribed for the material as shown in Column 3 ofthe§ 172.101 Table, in the manner required by this subpart. (e) Sections 172.200(a) and 172.202(a)(4) in that Healthtex offered a hazardous material for transportation and failed to describe the hazardous material on the shipping papers, including the packing group, in Roman numerals, prescribed for the material in Column 5 ofthe§ 172.101 Table, ifany, ofthe material covered by the description, in the manner required by this subpart.(f) Sections 172.200(a) and 172.202(a)(6) in that Healthtex offered a hazardous material for transportation and failed to describe the hazardous material onthe shipping papers, including the total net mass, per package, inthe mannerrequired bythis subpart. (g) Sections 172.200(a) and 172.202(a)(7) in that Healthtex offered a hazardous material for transportation and failed to describe the hazardous material on the shipping papers, including the number and type of packages (indicatedbydescription ofthe package). (h) Section 172.204(a) or (c)(l) inthat Healthtex offered a hazardous material for transportation and failed to certify that the material was offered for transportation in accordance with this subchapterbyprinting onthe shipping paper containing the required shipping description one ofthe certifications setforth inthispart. (i) Section 172.204( c)(2) in that Healthtex offered a hazardous material to an aircraft operator for transportationby air and failed to provide two copies ofthe certificationrequired inthis section. 

### G) Section 172.204(c)(3) inthat Healthtex offered for transportationbyair a hazardous material authorized for airtransportation and failed to add to the certificationrequired in this sectionthe following statement: "Ideclare that all ofthe applicable airtransportrequirements have been met." (k) Section 172.30l(a)inthat Healthtex 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 inthe §172.101 table. (I) Sections 172.300(a) and 172.312(a)(l) in that Healthtex offered a nonbulk combination package having inner packagings containing liquid hazardous materials for transportation and failed to properly pack the package ofliquid hazardous material with closures upward. (m) Section 172.400(a) inthat Healthtex 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 andinthis subpart. (n) Sections 172.600 and l72.602(b)(3) in that Healthtex offered for transportation a hazardous material and failed to present the emergency response information- (i) on a shipping paper; (ii) In a document, other than a shipping paper, that includes both the basic description and technical name ofthe hazardous material as required by §§ 172.202 and172.203(k), the ICAO Technical Instructions, the IMDG Code, or the TDGRegulations, as appropriate, andthe emergency response information required by this subpart (e.g., a material safety data sheet); or (iii) related to the information on a shipping paper, a written notification to pilot-incommand, or a dangerous cargo manifest, in a separate document (e.g., an emergency response guidance document), in a manner that crossreferences the description ofthe hazardous material onthe shipping paper withthe emergencyresponse information contained inthe document. (o) Section 172.604(a)(3) in that Healthtex offered a hazardous material for transportation and failed to provide a 24-hour emergency response telephone number which was entered on a shipping paper (i) immediately following the description of the hazardous material; or (ii) in a clearly visible location. (p) Sections 172.702(a) and 172.704(a)(l) in that Healthtex offered a hazardous material for transportation and failed to ensure that its hazmat employee training included general awareness/familiarity training designed to provide familiarity with the requirements of this subchapter and to enable the employee to recognize and identify hazardous materials consistentwiththe hazard communication standards ofthis subchapter. (q) Sections 172.702(a) and 172.704(a)(2) in that Healthtex offered a hazardous material for transportation and failed to ensure that its hazmat employee training included function specific training concerning requirements ofthis subchapter which were specifically applicable to the functions the employee performed. (r) Sections 172.702(a) and 172.704(a)(3) in that Healthtex offered a hazardous material for transportation and failed to ensure that its hazmat employee training included safety training concerning

- (i) emergency response information; (ii) measures to protect the employee from hazards associated with hazardous materials to which they may be exposed in the work place, including specific measures the hazmat employer has implemented to protect employees from exposure; and (iii) methods and procedures for avoiding accidents, such as the proper procedure for handling packages containing hazardous materials. (s) Section 173.203 in that Healthtex offered for transportation a package containing liquid hazardous material in Packing Group III when §172.101 of this subchapter specified that it be packaged under this section and failed to use non-bulkpackagings prescribed inthis section conforming to the general packaging requirements of subpart B of part 173, to the requirements ofpart 178 ofthis subchapter at the Packing Group I, II or III performance level, and to the requirements ofthe special provisions of Column 7 ofthe §172.101 Table.16. Pursuantto 49 U.S.C. Section 5123(a), Healthtex is subjectto a civil penalty not lowerthan $250 ($450 for training-related violations), nor greaterthan $50,000 ($100,000 if death, serious illness, severe injury, or substantial property damage results), for eachviolation of the Department ofTransportationHazardous Materials Regulations. 17. Underthe facts and circumstances ofthis case, a civil penalty of$40,500 is appropriate. WHEREFORE, the Agency, by counsel respectfully requests thatthe Administrative LawJudge enter an order thatRespondentbe assessed a civil penalty in the amount of$40,500. Respectfully submittedthis

## _..=.'f_ilt_ day ofMay, 2013.

# ~~ Attorney Office ofthe Regional Counsel PLEASE NOTE: Pursuant to Title 14 CPR Section 13.209(a), you are required to file a written answerto this Complaint, or a writtenMotion to Dismiss ifappropriate, not later than 30 days afterthe date shown onthe Certificate ofService which follows.CERTIFICATE OF SERVICE
I hereby certifythat a copy ofthe foregoing Complaint has been mailedthis date by Certified Mail, Return Receipt Requested, to the following: Hearing DocketClerk FAA, AGC-430, Suite 2W1000 Wilbur WrightBuilding 800 Independence Avenue, SW Washington, DC 20591 Natividad R. Elias President Healthtex Distributors, Inc. 3555 NW41 Street Miami, Florida 33142

# 11~~~ Dated (original + 1 copy)