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ATTORNtV GENtKAL OF TEXAS 

GREG ABBOTT 

.luly 8, 2011 

Icdcral Aviation Administration 

Aim: Hearing Docket Clerk, AOC-43a 

600 independence /\ve. SW 

Wilbur Wright Bldg, Sie 2W1000 

Washington DC 20591 

l''ia FedEx 0\'erm!zht 794954SS7538 

Re: FAA Docket No. CP09SO0014 

DMSNo. FAA-2009-1045 

FAA Case No. 2008SO700389 

l)c;ir Sir/Miidam: 

IT""- '" " /^ t tP*-

IVED 

JUL ! 1 2Di) 

HEARING DOCKET 

T-O 

> _ 

^~- en 

Lncloscd please llnd for filing in the above referenced case, the original Eind two (2) copie.s 

of the Respondent's Appeal Brief. 

Pk'iise file-m.-irk the additional copy provided and return to mc in the enclosed 

scll-addrcssed, stamped envelope. By copy ol'lhis correspondence, al! interested panics are 

being notified of tliis tiling. Thank you Ibr your courtesy m this mailer. 

Very Truly yours. 

'Xn:^ 

Cecilia Heriel 

l.,cgal Secretary to MICIIAEL C. CROWLGY. AA G 

r:NVlRONMENTAl., PROTECTION & ADMINISTro\TIVi:LAW DIVISION 

Ph: (512)475-4215 

[•a\: (512)320-0167 

Enclosure 

cc: Gerald A. Kllis. Ksq. li'a Fax (404) 305-5223 

Honorable Richard C. Goodwin Via Fax: (202) 366-7536 

FoSTOriMCl.: Box 1254S, AUSTIN. TEXAS 787 1 1-2548 TEL: (512)463-2100 

WtiB: WWW.OAG.STATE.TX.US 

.^1 /-.[/inl/ ):.J(,.'/,'iVi.--(( l>,:fi:;luiiih h.-ii'llnc.- l''ii,icJ„,i H^^yilcJ l'u!"-r 
07/15/201 1 13:42 FAX 2024935U 2 FAA ^ Dt-iS (^002/01 3 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, DC 

FAA DOCKET NO. CP09SO0014 

DMS NO. FAA-2009-1045 

FAA CASE NO. 2008SO700389 

FEDERAL AVIATION ADMINISTRATION, _ ^ _ 

ComplainanU O '^— •' ' ^ '\ ^ * ^ ^ ) 

TEXAS ARMY NATIONAL GUARD, M?.~ .HRIIM G DOCKE T 

R^ifpondent. 

RESPONDENT TEXAS ARMY NATIONAL GDARD^ S APPEAL BRIEF 

TO THE HONOR.A.BLE ADMINISTRATOR: 

NOW COMFS Respondent Texas Army National Guard (the ''Guard") by and through 

Greg Abbott, Attorney General of Texas, and the undersigned Assistant Attorney (iencraL 

and niesihis Appeal Brief with the AdiTiinisirator of tlie Federal Aviation Agency ("FAA"). 

and pursuant to 14 C.F.R. § 13.233(d) perfects its appeal of the initial decision of the 

Administrative Law Judge (ALJ) in the case, dated May 20, 2011. In support thereof, the 

Guiird would respectfully show the following: 

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L SUMMARY 

The Guard appeals the initial decision of the Administrative Law .ludge in this case, 

dated May 20, 2011, for the Ibllowing reasons: 

1. The FAA does [lot have jurisdiction to levy a civil penalty against the 

Guard. 

2. Alternaiivcly. that the civil penalty was not correctly determined. 

IL FACTUAL BACKGROUND 

This case arises from the mailing on July 3, 2008, of a package by UPS air freight that 

contained four 1-gallon n:ieial containers ol" Durant fJuraplex 800 Exterior Alkyd Flat. 

Respondent's Exhibit 1. !"hc package was mailed by SSG Anthony Jackson - lK36ih 

Fransporlation Company. Fort Bliss, IX - and was intended for SSG Lynclle Patterson, 

Armoo.'. Killeen, TX. Id. During the ilight from tCillcen to the UPS processing facility in 

Louisville, Kentucky, one of the containers came open and spilled the contents inside and 

outside of the box. kl No one was hurt, and no other packages were lost. /<:/. 

On July 22, 2008. upon learning of the incident, Cathleen Gruetzner, a civilian 

employee of the Guard in charge of Guard mail operations, contacted SSG Jackson, and 

informed him of what had occurred. See Gnietzner hearing testimony, and Respondent's 

Fxhibii 1. Gruetzncr sent phoios of the spilled paint to SSG Jackson, and instructed him to 

meet with a UPS representative who would be sent to his location to provide a refresher 

course in handling and packaging dangerous materials. Id .lackson was also instructed to 

contact ihe closest IJPS .store to learn the proper way to Fill out a IlazMat form. Id 

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By July 28, 2008, Grtietzner and the Deputy Commander of the Guard headquarters 

at Camp Mabr\'. in Austin, Texas, determined: 

1) to require that all Texas Guard Mail Managers/Clerks and Campus Ship 

Operators access the UPS website for inlormation about transporting 

hazardous materials, 

2) to require mail handlers to attend a UPS seminar within their areas for 

instruction regarding transport of hazardous materials, 

3) to train all Guard llazMat personnel in accordance w/ihe UPS 

Seminars, and train mail handlers as backup to insure that the 

knowledge is passed on. 

4) to keep the Mail Operation Supervisor and the Armor}'Mail Managers 

aware of new mail handlers, to preserve the institutional knowledge, 

and 

5) to update the Mail Handlers SOP with respect to HazMat shipping 

requirements. Id. 

A private L^PS seminar was ordered to be set up in the El Paso Armories and FMS 

shop? the next day, and other classes were ordered to be conducted around the state, and that 

U'PS HazMat material be placed in the Mail Handlers SOP for quick reference. Id. 

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After July of 2008, the Guard sent the following to Texas armories: 

1) HazMat Transportation SecuritN- Awareness training modules. 

2) HazMat Familiarization & Safety in Traiisportation bulletin, 

3) Texas Military Forces Hazardous Waste «fe Hazardous Materials 

Management training Scries, 

4) HazMat Training for Non-cerlitying Officials, 101 Mail Handlers v2, 

and 

5) SOP for Mail Handlers, w/a section added for HazMat shipping, fhcsc 

materials included a training disc. The mailroom ops book included a 

section that was added regarding HazMat deliveries. Respondent's 

' Lxhibit2. 

III. PROCEDURAL BACKGROUND 

The FAA issued a Notice of Proposed Civil Penalty to the Guard on Februar>' 27. 

2009- alleging \i^ violation.^ of 49 CFR Parts 17], 172, and 173, all resulting from the 

shipment sent on July 3. 2008. and proposing a civil penalty of $33. 950.00. Tr. 12. Fhe 

Guard answered on March 30. 2009, and from ihe outset, did not contest the liability 

allegaiiuns. llie FAA requested training documentation from the Guard, which was provided 

on June 10- 2009. IV.7. Ihe documents sent included the activities of Ms. Gruetzinan and 

the Guard, described above. Respondent's Exhibit 1. Also provided was a summary of 

Guard activity in this area since July of 2008. Respondent's E.xhibit 2. 

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With no reply, or any comments concerning the materials provided it by the Guard, 

the ['AA, issued the Final Notice of Proposed Penalt>' on October 14.. 2009. fhe notice 

restated the allegations of the propo.sed civil penally of Febniar>' 27. 2009. 'fhe amount of 

the proposed penalty was reduced to S3O,U0O.0O. The FAA continued to seek, this amount 

because it found the materials to be ''insufficient to meet the relevant training requirements 

of 49 CFR §172.700, et. scq.^' Tr. 43-50. On January 4, 2011, a hearing was held by the 

ALJ. and on May 20, 2011, the ALJ issued his initial decision. 

IV. FIRST OBJECTION TO DECISION 

N o .JURISDICTION TO IMPOSE CJVTl. PF.NALTIES ON RESPONDENT. 

49 us e ijt- 5123 and 46312 authorize civil penalties for hazardous materials 

violations. 49 USC § 46301(a)(t) states "A person is liable . . .for acivil pennlt}' . . ." 49 

u s e §5102(9)(A) excludes ''. . . a depanmeni, agency, or instrumentality of the 

Government" from the definnion of'person.'' 

1 he Texas Guard is not a "person" subject to the proposed civil penalty because it is 

"a federal agency, despite its status as a state office, because of the federal nature of the 

employees [that it] supervises and the substantive federal law that governs [its] duties." 

NeSmiih V Fulton. 615 F.2d 196. 198 (5"' Cir. 1980). Its civilian employee, Grucizncr, is 

recogrnzcd a federal employee under 32 USC § 709. 

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The Fifth Circuit more recently reviewed why and how the National Guard of a state 

is an executive agency in Lipscomb. Et al. v. National Labor Kelaiion.s Auihonn\ 333 F.3d 

61 I. 619 (5'''Cir. 2003). This decision affirmed the district court's determination that the 

•T)epartment of Defense is an 'executive department,'"-because the "Dcpanment of the 

Army consists ot'the Regular Army, the Army National Guard of the United States, the Army 

National Guard while in service of the Unites States . . . See 10 USC §3602(b)-(d) .. . the 

Army National Guard of the United States is the reserve componeni of the Army that consists 

in relevant pait of the 'federally recognized units and organizations of the Army National 

(juard.'i'te 10 USC § 10105."/fl'.iTie appellate court affirmed the district court's conclusion 

that the Mississippi Army National Guard, as a subset of the Mississippi National Guard, was 

"an clement of the .Army National Guard of the United States, and hence falls within the 

definition" of a federal agency. Id. 

fhe Texas Army National Guard is ''an element of the Army National Guard of the 

United Slates'" under 10 USC § 10105. fhe civilian employee in charge of the Guard's 

mailing policies and procedures. Gructzner, is a federal employee. 32 USC § 709. And the 

holding in Lipscomb means that when SSGT. Jackson mails a parcel from Fort Blis.s' to 

SSG f. Patterson at Fort Hood, the mailing is between members of "federally recognized 

units and organizations of the Army National Guard." Lipscomb, 333 F.3d al 619. fhe 

federal agency to which their ''units and organization.s'' belong - the Department of the 

Army-is not a ''person" subjecuo Ihe civil pcnalr>' recommended by the ALJ. and the FAA 

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does not have subject matter jurisdiction to order such penalties. 

In (he aliernarive to the jurisdictional objection above, the Guard asserts the following: 

V. SECOND OBJECTION TO DECISION 

A. Determination of an appropriate civil penalty for hazardous materials 

violations. 

49 USC *;§ 5123,463 12 and 49 CFR §13.16(c) authorize civil penalties for hazardous 

muierials violations. The factors to be considered w'hen such penalties are impo.^ed: 

]} The nature, circumstances, extent and gravity of the violation, 

2) the degree of culpability of the violator. histor>' of prior violations, 

ability to pay, and any effect of the violator's ability to continue in 

business, and 

3) other matters as justice may require. Neither the proposed nor the 

proposed final notice discuss these factors. 49 CFR §13.16(c). 

Guidelines for Civil Penalties are found at 49 CFR Part 107. Appendix A. The first 

pan of the guidelines lists baseline amounts/ranges for frequently cited violations. For 

example, an undeclared shipment of hazardous materials without shipping markers, markers 

or labels, i?. $15,000.00 and up. The penalty^ amounts for the other 17 violations listed in the 

Final Notice ranee from S800.00 to $6,000.00. 

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"fhe second part of the guidelines identifies the genera] criteria u-sed to make initial 

determinations of civil penalties. The deiermination is to be made on the basis of the criteria 

set our in 49 CFR §13.16(c). fhcii. the determination is to be adjusted by considering "alt 

other evidence concerning the nature, extent, circum.siances and gravity of the alleged 

violation: degree ofculpabilir\', histors'of prior violation, ability to pay, effect of tlie penalr>' 

on the ability to continue to do business, and such other matters as justice may require (a 

major component of which is corrective action taken by a respondent to prevent a recurrence 

olsimilar violations.)"' The importance of corrective action is that it "may reduce a penalty 

up to 25% ... [tjhe t\vo factors in determining the penalty reduction arc the extern and timing 

of the corrective action . . . [and] mitigation will be determined on the basis of how much 

corrective action was taken and when it was taken. Systemic action to prevcni future 

violations is given greater consideration that action simply to remedy violations identified 

during the inspection." 49 CFR Part 107, Appendix A. 

B. The guard's prompt and extensive corrective actions require that a les.ser 

amount be imposed as a civil penalty. 

1. The Guard's Corrective Action Was Prompt and Extensive 

The ALJ relied extensively on the decision Wdrowu Neon Sign Corporation, FA.A. 

Order No. 1996-26 (August 13- 1996) to suppon the determination of a penalty of S30, 

000.00. A more recenl and appropriate case would be .Atlas Frontiers. LLC, FAA Order No. 

2010-10 (June 16, 2010). Atlas involved a hidden shipment of a gasoline engine containing 

gasoline that could have been sent by air. The owners of Atlas conducted a slide show nine 

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months after the lad as ''corrective action." TTic penally Ibr Atlas was $12,000, and was 

recommended by the same ALJ as in the instant case. The Guard's acceptance of 

responsibility, and its immediate and far reaching actions to correct the siuiation, could not 

contrast with any more force with the laggard and ineffective attempts of Atlas at corrective 

action. Yet. not only did the ALJ recommend a penalty less than half of what was proposed 

in this case, the Administrator alTuTned the decision. A fifteen year old case does not lend 

the instghi that one from last year does. 

As noted in § 13.16(c) and Appendix A. corrective action is critical in determining a 

civil penalt)' for violation of hazardous materials shipping regulations. The Guard learned 

of the incident on July 22, 2008, and took a series of actions. SSGT Jackson was apprised 

of his mistakes in shipping the paint. He was instnicted to access the UPS w'cbsite. and meet 

with a I'PS representative to insure that no fiiturc deliveries would violate FAA rules. Less 

than a week later, Ms. Gruetzncr met with the second in command at Camp Mabr\' to 

determint how to implement corrections across Texas to prevent future violations -systemic 

corrections. The action taken was specific, identifying all mail handlers, and requiring them 

to attend seminar regarding the proper shipment of hazardous material. A year later, her 

followup demonstrated ihe extent of the corrective action had been taken, and that the 

corrections were still in effect. The Guard's effons comport with the criteria of Appendix 

A: "mitigation will bedelennined on the basis of how much corrective actionwas taken, and 

when it was taken. Systemic action lo prevent fiiture violations is given greater consideration 

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than action .=;imply to remedy violations .. ." 

2. The Guard's Hazardous Materials Training Complies With The FAA's 

Own Requirements. 

As noted above, training is a signi Meant component of the Guard's corrective actions. 

The FAA contends that the Guard's "materials were insufficient to meet the relevant training 

requirements of 49 CFR .^J72.700 el seq." As shown above, this contention is not correct. 

The Guard's activities are directed to three goals: general awareness of hazmat requirements, 

function-specific training, and training directed lo safet)' concerns. See 49 CFR tjl72.704. 

'fhe actions of the Guard fulfill the requirements of the section, and also the requirement of 

§• 172.702 that hazmat employers assume responsibility for the training of hazmar employees. 

fhe email and letter from the FAA that the training was insufficient doe.s not specify how or 

where the insufficiencies were perceived to exist. By contrast, the Guard has demonstrated 

the specific goal.^ of its trailing programs, and how il has implemented ihe needed 

corrections. 

3. The Civil Penalty' Should Be Reduced Because The Guard Took Extensive 

and Prompt Corrective Action. 

The matrix used by the FAA to determine penalties, along with the comments 

reg-irding its application, strongly suggest that the penalty should be reduced. With respect 

to the elements of 49 CFR §l3.16(c)(2), the Guard has assumed responsibility for its conduct 

from the outset. It has no history of previous violations. In contrast to the Atlas Frontiersca^c. siipr<\^ and by the criteria of Appendix D, mitigation should be applied to the penally. 

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and "a single penalty for multiple counts or days of violation'" of less than i3U, 000.00 is 

appropriate. 

VL CONCLUSION. 

I he Guard i:^ not a "'peison'" upon which the FAA may levy a civil penally. In the 

alternative, the Guard would also show that il assumed responsibility from the outset for 

violations of the 1- A A regulations, li quickly corrected matters with respeci lo SSG lackson, 

and quickly and extensively introduced system wide remedies as well. The changes are still 

in elfect. Fortunately, no person was hurt, and no property damaged as a result of the 

incident. The training given by the Guard complies with the requirements of the FAA. and 

these aclions w^arrant ihe imposition of a penalty of less than 530^000.00. 

Respectfully submitted, 

GRCG ABBOTT 

Attorney General of fexas 

DANIFL T.HODGE 

First Assistant Attorney General 

BILL COBB 

Deputy Attorney General for Civil Litigation 

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BARBARA B. DEAN F 

Chiel\ Environmental Protection 

Administrative Law Divisi(Mi 

and 

tc^^ 

tCKALLCCROWLl 

State Bar No. 05170300 

ASSIS'IANT ATIORMI-V GEN1£1<AF 

OhriCti OF TKE M-iXAS ATTORNHV GENFRAL 

RNV'TL. PKOTFCI JON ik. AD.MiN. LAW DIVISION 

P. O. Box 12548 

Austin,'fexas 78711-2548 

Ph: (512) 475-4208 

Fax:(512)320-0167 

Email; michacl.crowley@oag.state.tx.u-S 

CERTIFICATE OF SERVICE 

1 hereby certify that a true and correct copy of the above and forgoing Appeal Briel 

has been sent via facsimile on this the 8"" day of July 2011» to the following counsel o\ 

record: 

Gerald A. flllis. Attorney 

U.S. Department of Transportation 

Office of the Regional Counsel. Southern Region 

Federal Aviation Administration 

P.O. Box 20636 

Atlanta. Georgia 3U320 

Ph. (404.) 305-5200 

Via Facsimile (404) 305-5223 

Assistant Attor/iey General 

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