03/15/2013 09:01 FAX 3107256816 AWP-7 

To: 

Company: 

Phone: 

Fax: 

From: 

Title: 

Date: 

Description of 

item being 

transmitted: 

Hon. Richard C. Goodwin 

Office of Hearings, M-20, US DOT 

(202) 366-7536 

Courtney Adolph 

Attorney 

3115113 

Complatnt ' s Mot1on to Deem 

Allegations Admitted and Motion 

for Decision, or in the alternative, 

Motion to Limit the issues at 

Hearing to Sanction, In the 

Matter of ChemSystems, Inc., 

FDMS No. FAA-2012-0911 

FAA Docket No. TBD 

Federal Aviation 

Administration 

Office of the Regional Counsel, AWP7.4 

PO Box 92007 

Los Angeles, CA 90009-2007 

Telephone: (:;310) 725-7128 

Facsimile: (31 0) 725-6816 

Email: Courtney.Adolph@faa.gov 

Facsimile 

Total Number of pages including the 

cover page: 8 

D PER YOUR REQUEST D FOR YOUR REVIEW 0 PLEASE COMMENT 

D FOR COORDINATION D HARD COPY TO FOLLOW VIA US MAIL 

NOTES/COMMENTS; 

cc: Heeting Docket Clerk, AGC-430 (Ho.rd copy to follow in the U.S. mail) 

(202) 493-5142 

Robett Fling, Esq. (Respondenfs Coun.sel) (Hard copy to follow in the U.S. mflil) 

(281) 727-0082 

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_()3/15/2013 09:01 FAX 3107256816 AWP-7 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF :HEARINGS 

WASHINGTON, DC 

Jn the Matter of ChemSystems, Inc., 

Respondent. 

FAA Docket No.: TBD 

FDMS No.: FAA-20l2-0911 

FAA Region: Weste.-n Pacific 

Judge: Richard C. Goodwin 

COMfLAlNANT'S MOTION TO l>EEM ALLEGATIONS ADMITTED AND 

MOTION FOR DECISION OR, IN THE ALTERNATIVE. MOTION TO LIMIT THE 

ISSUES AT HEARING TO SANCTION 

To: Hon. Richard C. Goodwin, Administrative Law Judge, and to ChemSystems, inc., 

("Respondent") by and through its attorneys: 

COMES NOW, the Regional Cotmsel of the Westem-Pacific Region of the :federal 

Aviation Administration (FAA), by cotmsel, files this Motion to Deem Allegations Admitted 

and Motion for Decision, pursuant to sections 13.218(a) and (f)(S), and 13.209(f) of Title 14 

of the Code of Federal Regulations. In the altemative, Complainant moves to have the 

hearing limited to th.e amount of the sanction. This motion is based on the fact no answer has 

been filed by Respondent. 

The Complaint was filed and served on Respondent on November 23, 2012. It 

alleges: 

1. On or about August 4, 2011, Shannon Wooten, an employee of ChemSystems, 

offered a shipment to Federal Express ("FedEx"), for "express saver" delivery from 

Houston, Texas to consignee Heritage Bomanitc, Fresno, California (referred to 

hereinafter as "shipment") on air waybill number 493062658064. 

2. The shipment included one fiberboard box containing four ( 4) one-gallon containers 

of "Chromastain Ember." 

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3 "Chromastain Ember" is a hazardous material, in accordance with the Hazardous 

Materials Table in Title 49 of the Code of Federal Regulations (49 C.P.R.), Section 

172.101. It is a corrosive liquid, acidic, inorganic, n.o.s. (Hydrochloric Acid), and has 

an Identification No. UN3264, Hazard Class 8, Packing Group III. 

4. ChemSystems offered the shipment for air transportation in commerce when it was 

not properly packaged and in condition filr shipment as required or authorized by 

applicable requirements in Subchapter C of Chapter l of 49 C.F .R-, or an exemption 

or special permit, approval, or registration issued under Subchapter C or Subchapter 

A of Chapter I. To wit: 

a. The four ( 4) containers possessed no positive means of closure and the 

fiberboard box was not designed, constructed, maintained, filled its C<mtents 

so limited, and closed, under conditions normally inci.dent to transportation to 

prevent a release of the hazardous material. 

b. The necessary hazardous materiai markings were not visible on the exterior of 

the shipment box. 

c. Hazardous material labels were not visible on the exterior of the shipmeot 

box. 

d. The shipping papers did not include any classi:5cation or description of the 

materials being shipped. 

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ChemSystems offered the shipment when emergency response information, 

conforming to 49 C.F .R. part 172, subpart G, was not immediately available for use at 

all times the hazardous material was present. ChemSystems offered the shipment 

when it did not provide an emergency response telephone number for use in the event 

of an emergency involving the hazardou:; rnaterial. 

6. As described above, Chern Systems was a hazmat employer, and Shannon Wooten, 

was a hazmat employee, as those terms are defined in 49 C.P.R. section 1 71 .8. 

Shannon Wooten offered the shipment fi)r air transportation when s/he did not have 

recurrent general awareness/familiarization, function-specific, security awareness, 

safety, etc. training in accordance with subpart H of part 172 of 49 C.F.R. 

On or about August 8, 2011, FedEx transported the shipment by ground from 

Hanston, Texas to its sorting facility in Oakland, California, where the shipment was 

found to be leaking. 

The Complaint seeks an Order Assessing civil Penalty of $154,000. 

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Complainant sent a cover 1 etter with the Complaint. That letter stated: 

NOl'E l'O RESPONDENT: SECTION 13.209 OF THE CP RULES OF 

PRACTICE REQUIRE THAT A WRITTEN ANSWER TO THE COMPLAINT BE 

FILED NOT LATER THAN 30 DAYS AFTER SERVICE OF THIS COMPLAINT 

AS AN ALTERNATIVE TO FILING AN ANSWER, A MOTION MAY BE FILED 

PURSUANT TO SECTION I3.208(D) [sic] OR SECTION l3.218(F) [sic] ('A) OF 

THE RULES OF PRACTICE. (Emphasis in original.) 

Section 13.209(a) of Title 14 of the Code of Federal Regulations [14 C.F.R. section 

l3.209(a)] requires a respondent to file an answer no later than thirty (30) days after service. 

Ptirsuant to section 13.21 1, the date of service is the date on the proof of service, and after 

s':rvice by mail, an additional five (5) days is added to the prescribed period for a response. 

i•,ccordingly, an answer was due on December 28, 2012, which is thirty-five (35) days after 

November 23, 2012 (the date the Complaint was served). 

To date, no answer has been received by Complainant. Respondent has not requested 

an extension oftime in which to file an answer, and there are no apparent circumstances that 

would constitute good cause ±or a failure to file. In view of the above, Complainant moves 

tl1at the allegations in the complaint be deemed admitted. As a result, there is no genuine 

issue of material fact and the Complainant is en1itled to a decision as a matter of [aw. 

Complai.nant's motion is appropriate. Respondent offered an tmdeclared shipment of 

141004 

four ( 4 ), one-gallon containers of hydro lie acid Jor transportation by air from B ouston, Texas, 

to Fresno, California. Respondent failed to properly package and prepare the shipment in 

yiolation of Subchapter C of Chapter I of Title 49 of the Code ofFede1:al Regulations. 

Specitlcally, Respondent did not provide positive means of closure of the four (4), one-gallon 

containers of hydrolic acid. Likewise, Respondent did not use a fiberboard box that was 

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designed, constructed, maintained, filled its contents so limited, and closed, under conditions 

normally incident to transportation to prevent a rdease of the hazardous material in violation 

of sections 173.24(b) and 173.27(d), for example', such as a leak-proof liner. Respondent 

ai1so failed to properly mark and label the shipment in violation of sections 172.300(a) and 

172.400(a). Respondent did not include any classification or description of the hazardous 

material on the shipping papers in violation of section 172.200(a). Further, Respondent 

offered the shipment when Respondent did not provide emergency response information in 

accordance with subpart 0 of part 172 of Title 49, and when it did not provide hazanious 

material training for its hazardous material employees in conformance with subpart H of part 

1 72 of Title 49. 

Section 13.209(t) of the Rules of Practice [14 C.f.R. Section 13.209(£)] states: "A 

person's failure to file an answer without good cause shall be deemed an admission to the 

truth of each allegation contained in the complaint." (Emphasis added.) Complainant moves 

the Administrative Law Judge to issue an Order Assessing Civil Penalty in the amount of 

$154,000.00. Alternatively, Complainant moves that the hearing be limited to the issue of the 

amount oftlle sanction. 

The sanction requested in this case is appropriate. The FAA's publicly avaihtble 

sanciion guidance matrix for hazardous material violations is contained in Figure C-1 of 

Appendix C of fAA Order 2150.3B. Respondent's website states that Respondent, ''offers 

integral and dry-shake colors as well as topping compmmds, overlays, acid stains, solvent, 

and water-based dyes, bonding agents, liquid and powder release agents and sealers."' 

Respondent manufactures at least some if not most of those materials. As ofthe date of this 

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motion, Respond<;:nt also offers a link of Material Safety Data Sheets of the products it uses. 

Under this sanction guidance, the FAA concluded that Respondent is a business entity that 

regularly offers, accepts, or transports hazardous materials. 

The shipment of hydro lie acid exceeded th.e quantity limitations for transportation on 

passenger-carrying aircraft, which also constitutes an aggravating factor under the sanction 

guidance. FAA Order2150.3B, Appx. C, para. 8(b)(2), p. C-6. Pursuant to these culpability 

factors, a figure in a higher amount of the moderate range is appropriate. A moderate weight 

is assigned to this case because hydrolic acid is a "category B" material. I d., at pa,a. 8(b )(1 ). 

Respondent committed seven (7) of the eight (8) offense categories (shipping papers, 

markings, labeling, packaging, training, emergency response information, and release into the 

envhomnent). Id., Flg. C-1, p. C-12. Under the FAA's sanction guidance analysis, a 

business entity that regularly ;ffers, accepts, or transports hazardous materials ordinsrily is 

subject to a civil penalty in the range of between $10,000.00 to $32,500.00 tor each ofTense 

category violated. Id. Given that Respondent asserts that it is a small business conc<,m, the 

FAA believes that a civil penalty slightly higher than the mid-point range of$22,000.00 is 

a1Jpropriate for each offense category violated. Accordingly, a civil penalty amount of 

$\54,000.00 (7 X $22,000.00) is appropriate for the violations in this case. 

Complainant's choice of sanction in th.is case as it is not arbitrary, capricious, or 

otherwise not according to law." Complainant has selected a civil penalty well within the 

rMge indicated in the matrix for hazardous materials violations under FAA Order 2150.3B, 

p,_ppendix C, Figure C-J_ 

1 '}ee http://www.chemsystemsinc.net. 2 '}ee, 49 U.S.C. § 44709(d)(3) 

5 

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Based on the foregoing, Complainant is entitled to a decision in its favor that 

Respondent committed the violations charged and should be assessed a civil penalty of 

$154,000.00. In the alternative, the only issue appropriate for the hearing is the amOlmt of 

the civil penalty. 

Respectfully submitted, 

NAOMI TSUDA 

Regional Counsel 

By:~ CQe)TAdOillh 

General Attorney 

Dated: March 15,2013 

6 

141007