1 

### RESPONSE BRIEF: JANUARy 30, 2016 

# vED UNITES STATES DEPARTMENT OF

# TRANSPOO~~~ . . • / OFFICE OF HEARINGS FEB- 

## It 

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WASHINGTON, D.C. 

## HEARING DOCKET

FEDERAL AVIATION ADMINISTRATION ) Complainant, v. D & M CUSTOM INJECTION MOLDING CORPORATION, Respondent. 

### ) ) ) 

### ) ) ) FAADOCKET NO, CPllGLOOO (Civil Penalty Action)

FDMS No. FAA- 2011-0679



### RESPONSE BRIEF TO INITIAL DECISION OF ADMINISTRATIVE LAW JUDGE RICHARD C. GOODWIN Initial Finding: Respondent was assessed a civil penalty of$110,000 I. Background The Respondent stipulates tothe Background as provided by Hon. Judge Goodwin in his decision ofDecember 13, 2012. II. 

### Penalty Determination The decision by Hon. Judge Goodwin held for an $110,000 assessment against the Respondent. 

### A. Factors in the Determination The Respondent stipulates that Hon. Judge Goodwin has appropriately defined the factors to be used inhis determination.

B. 

### Circumstances ofthe Incident2 TheRespondent stipulates to the details ofthe incident as provided by Hon. Judge Goodwin. 

### C. Decision- Request for Further Reduction 1. Complainant's arguments The Respondent stipulates to details ofComplainant's arguments as provided by Hon. Judge Goodwin. 

### 2. Respondent's arguments The Respondent stipulates tothe details oftheRespondent's arguments as provided by Hon. Judge Goodwin. 

### 3. Ruling and request for further reduction The Respondent respectfullyrequests that the Administrator ofthe FAAreview the arguments provided herein and further reduce the penaltyto $25,000 in consideration ofthe mitigating factors that were improperly considered and the additional background provided withthis filing. Hon. Judge Goodwin found that theRespondent failed to meet the standard of demonstrating that the Respondent was unable to pay the initial assessment ofa $168,000 civil penalty, but determined that a reduction ofthe penalty to $110,000 was appropriate and warranted bythe totality ofthe circumstances inthe context ofthe statutory factors, being substantial without having anunduly punitive character and suitably accounting for boththe aggravating and the mitigating factors involved inthe case. However, the Respondent respectfully requests that the Administrator dutifully and appropriately consider the role ofthe Chinese manufacturer inthis matter as a mitigating factor. The manufacturer improperly and intentionally changed the specifications ofthe productthat the Respondent was shipped.3 The manufacturer improperly and intentionally mislabeled the shipping documents that were used to convey the products from their country oforigin- The Peoples' Republic ofChina. The manufacturer improperly and intentionally mislabeled the shipping materials that were used 

### to convey the products from their country oforigin- The Peoples' Republic ofChina. The manufacturer improperly and intentionally mislabeled the shipping materials that wereused 

### to convey the products from their country oforigin- The Peoples' Republic ofChina. Boththe Claimant and the Hon. Judge Goodwin assert that it is neither credible nor a significant mitigating factor that the Respondent was unaware ofthe presence of hazardous materials in the productthat it was asked to "assemble." As Respondent has pointed out numerous times- its assembly activity did not involve the placing ofthe lithium batteries- the hazardous materials- into the product. The batteries had been preinstalled in China- at the point ofmanufacture and the nature oftheir chemistry was not readily or apparently discernible. ForRespondent to gain knowledge ofthe presence ofa hazardous material would have required initial disassembly- an activity specifically outside the nature and the scope ofits responsibilities and contractual obligations. In retrospect it would appear that there was intention onthe partofthe Chinese manufacturerto obscure the nature ofthe product. Finally, the context ofthis engagement and the economic environment that the Respondent was operating in the spring and summer of2009 must be considered. Respondent was experiencing a significant downturn in its activities and revenues as many ofits primary customers were adversely affected bythe business to business recession and manufacturing "slow-down" that was well documented. This engagement was on a trial basis and was accepted in a good faith attempt to generate sustainable new business in a challenging business climate. Unfortunately, no such good faith was shown4 by the Chinese manufacturer, who clearly went out ofits wayto obscure the nature ofthe productsthey shipped to the US for completion by the Respondent. Respondent believes that the current finding ofan $110,000 civil penalty significantly overstates the Respondents culpability and understates the clear responsibility ofthe manufacturer. Respondent understands its responsibility as the shipper ofthe assembled product, but believes that it is inthe best interests ofthe responsibility ofthe FAA and its constituency to consider and document the role ofthe manufacturer. However, given the nature ofits authority, the only tangible way in which it can do this is by further reducing the Respondent's penalty by virtue ofthis important mitigating factor. Any other action would, in effect, reward the manufacturer for their bad faith and intentional acts. Therefore, the Respondent respectfully request a further reduction to an amount no more than $25,000. Respectfully Submitted,

### '/~**-\=4L>5-~** 

# ' Michael Teofilovich, President D&M Custom Injection Molding Corp. Dba D&MPlastics Corporation 150 French Road Burlington, IL 60109