lAW OFFICE OF 

HOZUBIN 

&MOBERLY 

310 K STREET, SUITE 405 

ANCHORAGE, AK 99501 

TEL: (907) 276-5297 

FAX: (907) 276-5291 

'"'""' '). ~on il \....; ,:.,- ,_ ~~ 

In the Matter of: 

TGI FREIGHT 

DEPARTMENT OF TRANSPORTATIONRECEIVED 

OFFICE OF HEARINGS SEP t 2 20!2 

WASHINGTON,· DC 

HEARING DOCK 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 does 
LAW OFFICE OF 

HOZUBIN 

&MOBERLY 

310 K STREET, SUITE 405 

ANCHORAGE, AK 9950 l 

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 2 
LAW OFFlCE OF 

HOZUBIN 

&MOBERLY 

310 K SlREET, SUITE 405 

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 3 
LAW OFFICE OF 

HOZUBIN 

&MOBERLY 

310 K STREET, SUITE 405 

ANCHORAGE, AK 99501 

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 W 7th 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