lAWOFFICEOF HOZUBIN &MOBERLY 310KSTREET,SUITE405 ANCHORAGE,AK99501

TEL:(907)276-5297 FAX:(907)276-5291 

# '"'""'').**~on** 

### il \....; ,:.,-,_**~~** In the Matter of:

TGI FREIGHT 

### DEPARTMENT OF TRANSPORTATIONRECEIVED OFFICE OF HEARINGS 

## SEP

# t220!2 WASHINGTON,· DC 

## HEARINGDOCK T ) ) )FAA Docket No. CP10NM0012 )OMS NO. FAA-2010-1079

_______________)Judge RICHARD C. GOODW.IN

TGI FRIEGHT'S PRE-HEARING BRIEF On or about February 19, 2010, TGI Freight received from Parsons Corporation, along with other items, four manufacturers' combination packaging (shipping containers) of Pro-poxy 400 Epoxy resin. None of the packages either displayed a consume.r commodity label, as required by CFR-49 172.316 (a), or limited quantities markings, as required by 172.315. Further inspection found that the inner containers did display a WHMIS Class D, division 2 symbol that warns of possible poisonous reactions to a person who is repeatedly e'xp6set:l. tO small amoTfnts;·Dut th:ey "did'not display the·WHMIS Class B symbol for flammable/combustible material. In other words, the only marking indicated that the material may be irritating to the skin after prolonged exposure. This does not make it a hazardous material. It has been TGI Freight's experience that the presence of the Class D, division 2 symbol is a consumer warning and doesLAWOFFICEOF HOZUBIN &MOBERLY 310K STREET,SUITE405 ANCHORAGE,AK9950l

TEL:(907)276-5297 FAX:(907)276-5291 not equal DOT hazard class. Because of the absence of the required information, TGI Freight appropriately considered the Pro-poxy 400 to be a non-regulated item and shipped it as such.TGI Freight appropriately relied on the information provided by the manufacturer of the product. The outer packaging was not marked with a proper shipping name,

as required by 172.300/172.301, or UN/NA number in a diamond, as required by 172.315, for limited quantities by nonair transport. It was also not marked with Consumer Commodity, ORM-D. As shown by pictures already provided by TGI Freight, there are no markings or labels of any kind on the packaging for surface shipment. This is in direct violation of 49 CFR. Unitex, the manufacturer, has taken the position that because of the small quantity in the 9 oz. tubes, it does not require marking, labeling, or placement of WHMIS symbols. This is despite the fact that our research has shown that the exact

same product in larger 28 oz. tubes is labeled with multiple flammable warnings on the tubes. The fault for what occurred lies with the manufacturer and not TGI Freight. The manufacturer's response leads to concerns about how many shipments are being made daily, whether by highway, rail, water, or even possibly by aircraft, that are improper due to

In the Matter of TGI Freight Docket No. CP10NM0012 Page 2LAWOFFlCEOF HOZUBIN &MOBERLY 310KSlREET,SUITE405 the incorrectness of the marking of the material by the manufacturer. Additionally, there has been some criticism by the FAA of TGI Freight concerning this shipment for not consulting a material safety data sheet. The material safety data sheet is

an OSHA form referenced in CFR-29. CFR-49 does not require that TGI Freight refer to it as part of this process. TGI Freight acted appropriately based on the information provided to it on the manufacturer's shipping containers. Had the cartons or even inner containers been properly marked, labeled, or embossed with the WHMIS symbols, as required, TGI Freight would have properly declared them. TGI Freight did not knowingly violate any provision of USCA, chap. 51. DATED this

# ~ay of September 2012.HOZUBIN 

### &MOBERLY Freight

ANCHORAGE,AK9950t In the Matter of TGI Freight

TEL:(907)276-5297 Docket No. CP10NM0012 FAX:(907)276-5291 Page 3LAWOFFICEOF HOZUBIN &MOBERLY 310KSTREET,SUITE405 ANCHORAGE,AK99501

TEL:(907)276·5297 FAX:(907)276-5291 CERTIFICATE OF SERVICE I hereby certify that on the 5th day of September, 2012, a true and correct copy of the foregoing was mailed to the following: Original Plus 1 Copy Federal Aviation Administration 800 Independence Avenue, S.W. Washington, DC 20591 Attn: Hearing Docket Clerk, AGC-430 Wilbur Wright Building-Suite 2Wl000 One Copy Howard L. Martinf Jr. Regional Counsel, Office of Regional Counsel, AAL-7 Alaskan Region Federal Aviation Administration 222 W7th Avenue #14 Anchorage, AK 99513-7587 Cheryl M. Jones, Sr. Attorney Office of Regional Counsel Alaska Region Federal Aviation Administration 222 West 7th Avenue #14 Anchorage, AK 99513-7587 The Honorable Richard C. Goodwin, Administrative Law Judge U.S. Department of Transportation Office of Hearings, M-20 1200 New Jersey Avenue, S.E. East Building, Ground Floor, Room El2-320 Washington, DC 20590

Caro McNeese 9100/242/trial/pre-hear ng brief

In the Matter of TGI Freight Docket No. CP10NMOOi2 Page 4