U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

FEDERAL AVIATION ADMINISTRATION 

IN THE MATTER OF: 

FEDERAL EXPRESS CORPORATION 

Respondent. 

The Honorable Richard C. Goodwin 

) 

) 

) FAA Case No. 2014SW700042 

) (Civil Penalty Action) 

) 

) 

) FDMS no. 2014-0864 

) 

APR 2 4 20!5 

HEARING DOCI<ET 

RESPONDENT'S RESPONSE TO COMPLAINANT'S FIRST SET OF REQUEST FOR 

ADMISSIONS, INTERROGATORIES, AND REQUEST FOR PRODUCTION OF 

DOCUMENTS 

Respondent, Federal Express Corporation d/b/a FedEx Express ("Respondenf' or "FedEx 

Express"), by counsel and pursuant to 14 CFR § 13.220, hereby responds to the Complainant's First 

Set of Request for Admissions, Interrogatories, and Production of Documents: 

PRELIMINARY STATEMENT 

Respondent's investigation of the facts related to this case is ongoing, and it has not yet fully 

completed its discovery in this action nor completed its trial preparation. All of the responses 

contained herein are based only upon such information and documents as are presently available to 

and specifically known to. Respondent at the present time. Respondent states that further discovery, 

independent investigation, legal research and analysis may supply additional facts or documents, add 

meaning to the known facts or documents, and/or establish entirely new factual and legal 

conclusions, all of which may lead to substantial additions to, changes in and/or variations from the 

information .and documents herein set forth. 
The following responses are given without prejudice to Respondent's right to produce any 

subsequently discovered fact(s) or document( s) that it may later recall, learn about or locate. 

Accordingly, Respondent reserves the right (but specifically denies any obligation) to change any 

and all responses herein as additional facts or documents are ascertained, analyses are made, legal 

research is completed, and contentions are made. 

GENERAL OBJECTIONS 

1. FedEx Office and Print Services, Inc. ("FedEx Office") is a distinct operating 

company from Federal Express Corporation ("FedEx Express"). While FedEx Office accepts nonhazardous shipments on behalf ofFedEx Express and other carriers, FedExExpress cannot respond 

on behalf ofFedEx Office. Without waiving any rights or objections associated therewith, FedEx 

Express believes the following responses that relate to Fec!Ex Office are accurate based on 

information and belief. 

2. Respondent's fact investigation is ongoing, and it has not yet completed its discovery, 

claims analysis and trial preparation. Facts, documents and things now known may be imperfectly 

understood and, accordingly, such facts, documents and things may not be included in the following 

responses. Respondent reserves the right to refer to, conduct discovery with reference to, or offer 

into evidence at the time of trial any and all facts, documents and things notwithstanding the initial 

responses herein. 

3. Respondent objects to Complainant's Interrogatories, Request for Admissions and 

Production of Documents insofar as they seek the disclosure of information that is protected by the 

attorney-client privilege, the work product doctrine or any other applicable privilege. To the extent 

that Respondent inadvertently discloses information that may be protected from discovery llllder the 
attorney-client privilege, the work product doctrine or any other applicable privilege, such 

inadvertent disclosure does not constitute a waiver of any such privilege. 

3. The responses set forth below are provided without in any manner waiving: (1) the 

right to object to the use of any response for any purpose, in this action or any other actions, on the 

grounds of privilege, relevance, or any other appropriate grounds; (2) the right to object to any 

request involving or related to the subject matter of the responses herein; or (3) the right to revise, 

correct, supplement or clarifY any of the responses provided below, at any time. Respondent 

specifically reserves the right to supplement its responses. 

4. Subject to and without waiving these general objections, and subject to and 

without waiving the specific objections below, Respondent's responses are as follows to 

Complainant's Interrogatories, Request for Admissions and Production of Documents in 

accordance with Respondent's understanding of the fair meaning of those discovery requests: 

RESPONDENT'S RESPONSE TO COMPLAINANT'S FIRST SET OF 

REQUESTS FOR ADMISSION 

REQUEST NO. 1: On January 10, 2014 the customer service agent at the FedEx Office in 

Austin, Texas failed to inspect the shipment assigned airway bill tracking number 797609866023. 

ANSWER: Respondent incorporates each of its General Objections above. Upon 

information and belief, FedEx Office does not accept any hazardous material, as defined in in 49 

C.F.R 171, et seq, on behalf ofFedEx Express. Therefore Respondent objects to this request in that 

it seeks to imply an obligation on FedEx Office to inspect hazardous material shipments pursuant to 

49 C.F.R 175.30. Further, nothing alleged in Complainant's complaint would give rise to an 

additional duty on behalf of FedEx Office to inspect the shipment. Respondent asserts that at no 

time, did employees ofRespondent or FedEx Office knowingly, as defined in 49 U.S.C. 5123 (a) (1), 
accept an improperlyprepared hazardous material shipment. Respondent admits that FedEx Office 

accepted the shipment with a shipping label without indication that it contained hazardous materials 

and that did not contain the required shipper's declaration or required hazardous materials markings 

or labels, at a FedEx Office location with signage stating that dangerous goods are not accepted at 

FedEx Office. 

REQUEST NO.2: On January 20,2014 the customer service agent at the FedEx Office in 

Austin, Texas failed to question the shipper concerning the contents of the shipment assigned airway 

bill tracking number 797609866023. 

ANSWER: Respondent incorporates each of its General Objections above. Upon 

information and belief, Denied. 

REQUEST NO.3: On January 10, 2014 the customer service agent at the FedEx Office in 

' 

Austin, Texas accepted a shipment with hazardous material indicators assigned airway bill tracking 

number 797609866023. 

ANSWER: Respondent incorporates each of its General Objections above. Upon 

information and belief, Respondent admits that the shipment in question was accepted by FedEx 

Office with a shipping label without indication that it contained hazardous materials and that did not 

contain the required shipper's declaration or required hazardous materials markings or labels, at a 

FedEx Office location with signage stating that dangerous goods are not accepted at FedEx Office, 

but denies that the shipment had hazardous material indicators. 

REQUEST NO.4: The shipment assigned ain\Tay bill tracking number 797609866023 was 

packaged inside of a non-specification fiberboard box. 

·ANSWER: Admitted. 
REQUEST NO. 5: Marked on the exterior of one side of the fiberboard box assigned 

airway bill tracking mnnber 797609866023 was the word "PAINT". 

ANSWER: Admitted. 

REQUEST NO. 6: Orientation Arrows were printed on the exterior of one side of the 

fiberboard box assigned airway bill tracking number 797609866023. 

ANSWER: Respondent admits that the shipment contained orientation arrows, but denies 

that the orientation arrows are hazardous materials orientation arrows prescribed by 49 CPR 

172.312. 

REQUEST NO. 7: Handwritten on the exterior of one side of the fiberboard box assigned 

airway bill tracking number 797609866023 was the language TFD-654N Freedom Fishing Blue A2888. 

ANSWER: Admitted. 

REQUEST NO.8: Printed on the exterior of one side of the fiberboard box assigned airway 

bill tracking number 797609866023 was the language "THIS SIDE UP". 

ANSWER: Admitted, assuming by "exterior of one side" Complainant means the top of the 

box. 

REQUEST NO.9: On January 10, 2014 the customer service agent at the FedEx Office in 

Austin, Texas accepted the shipment assigned airway bill tracking number 797609866023. 

ANSWER: Respondent incorporates each of its General Objections above. Upon 

information and belief, Respondent admits that FedEx Office accepted the shipment with a shipping 

label without indication that it contained hazardous materials and that did not contain the required 

shipper's declaration or required hazardous materials markings or labels, at a FedEx Office location 

with signage stating that dangerous goods are not accepted at FedEx Office. 
REQUESTNO.lO: On January 10, 2014the customer service agent attheFedEx Office in 

Austin, Texas allowed the shipment assigned airway bill tracking number 797609866023 into air 

commerce. 

ANSWER: Respondent incorporates each of its General Objections above. Upon 

information and belief, Denied, the shipment in question never traveled on an aircraft and was 

therefore never in air commerce. 

REQUEST NO. 11: The shipment assigned airway bill tracking number 797609866023 

leaked. 

ANSWER: Admitted. 

REQUEST NO. 12: The shipment assigned airway bill tracking number 797609866023 

leaked during the sorting operation at the Federal Express Regional Sort Center located at Fort 

Worth Alliance Municipal Airport in Fort Worth, Texas. 

ANSWER: Admitted. 

RESPONDENT'S RESPONSE TO COMPLAINANT'S FIRST SET OF 

INTERROGATORIES . 

INTERROGATORY NO. 1: Identify the name, address, telephone number, and position of 

each person answering or assisting in answering these interrogatories. 

RESPONSE: 

Greg Stofko 

Senior Attorney 

1700 Pennsylvania Ave., NW 

Suite 950 

Washington, DC 20006 

202-393-9285 
Allan H. Horowitz 

Senior Cmmsel 

McKenna, Long & Aldridge 

1900 K St., NW 

Washington, DC 20006 

202-496-7500 

David Littlejohn 

Dangerous Goods Advisor 

Federal Express Corporation 

3670 Hacks Cross Road 

Memphis, TN 38125 

(901) 434-9567 

Robert Teutsch 

Managing Director, Regulatory and Commercial Transactions 

Three Galleria Tower 

13155 Noel Road, Suite 1600 

Dallas, TX 75240 

214-550-7587 

INTERROGATORY NO.2: IdentifY by name, address and telephone numbers all persons 

who have personal knowledge of your affirmative defenses alleged in your Answer. 

RESPONSE: 

Greg Stofko 

Senior Attorney 

1700 Pennsylvania Ave., NW 

Suite 950 

Washington, DC 20006 

202-393-9285 

Allan H. Horowitz 

Senior Counsel 

McKenna, Long & Aldridge 

1900 K St., NW 

Washington, DC 20006 

202-496-7500 

David Littlejohn 

Dangerous Goods Advisor 
Federal Express Corporation 

3670 Hacks Cross Road 

Memphis, TN 38125 

901-434-9567 

Pat Oppenheimer 

Senior Manager, Corporate Safety 

Federal Express Corporation 

3670 Hacks Cross Road 

Memphis, TN 38125 

901-434-9563 

Thomas Lopez 

Managing Director, Corporate Safety 

Federal Express Corporation 

3670 Hacks Cross Road 

Memphis, TN 38125 

901-434-9587 

Respondent further states that its fact investigation and trial preparation are ongoing, and 

discovery is not yet complete. Accordingly, Respondent reserves the right to amend and/or 

supplement this response if it identifies any additional individual with personal knowledge of 

Respondent's affmnative defenses. 

INTERROGATORY NO.3: Identify by title, date, author, present custodian and content 

all documents obtained by you or in yom possession relating to the assertions in Federal Express 

Corporation's Answer, Including affirmative defenses. 

RESPONSE: Respondent incorporates each of its General Objections set forth above. 

Respondent objects to this request on the grounds that it seeks information that is neither relevant 

nor reasonably calculated to lead to the discovery of relevant evidence, it is overly broad, unduly 

burdensome, not sufficiently limited in relevant type, time or geographic scope, and not reasonably 

calculated to lead to the discovery of admissible evidence. Respondent further objects to this request 
to the extent that it seeks the disclosure of information that is protected by the attorney-client 

privilege and/or the work product doctrine. 

Subject to and without waiving these objections, Respondent identifies as follows the 

responsive, non-privileged documents in its possession, custody, or control to the extent such 

documents exist and can be located in the exercise of reasonable diligence and without undue 

burden: 

All documents below are in possession of Respondent's Counsel. 

• Releasable portion of FAA Investigative File, including but not limited to: 

o FAA Letter of Investigation dated January 17,2014 

o FedEx Express Response to Letter of Investigation, dated February 6, 2014, 

including attachment 

o Statement ofF AA Special Agent Anthony Jimenez 

o Package photographs, dated January 15,2014 

o Copy of the shipper's shipping label, dated January 10,2014 

• 2014 FedEx Express Service Guide, including FedEx Express Terms and Conditions 

• FAA Order 2150.3B Compliance and Enforcement Program 

• E-mail dated February 10, 2014 between Heidi McAuliffe of the American Coatings 

Association and David Littlejohn of FedEx regarding regulated vs. non-regulated 

paint 

• E-mail exchange dated September 24, 2014 between Kim Shannon of AkzoNobel 

Coatings and David Littlejohn ofFedEx regarding regulated vs. non-regulated paint 

• FedEx Express Informal Conference Presentation 
Respondent further states that its fact investigation and trial preparation are ongoing, and 

discovery is not yet complete. Accordingly, Respondent reserves the right to amend and/or 

supplement this response if it identifies any additional documents relating to Federal Express 

Corporation'§ Answer and Affirmative Defenses. 

INTERROGATORY NO.4: IdentifY the name, address, telephone number, and specialty 

of each person you expect to call as an expert witness at trial, and for each expert identified, state the 

subject matter of his or her testimony and the substance of the facts and opinions to which the expert 

' 

is expected to testifY. 

RESPONSE: Respondent has not yet identified any expert witness but will amend and/or 

supplement this response if it identifies any expert witness. 

INTERROGATORY NO.5: Explain the factual basis for each denial in Federal Express 

Corporation's Answer to Complainant's complaint. 

RESPONSE: FedEx Express denies that any of its employees knowingly, as defined in 49 

U.S. C. 5123 (a) (1 ), accepted the improperly prepared hazardous material shipment in question. The 

shipment in question was tendered without the required hazardous material markings, labels or 

documentation. The shipment was not in UN specification packaging, did not include a UN number, 

did not have any of the required hazard labels, and did not include a shipper's declaration. The 

shipment in question, as it appeared to FedEx Express employees, was completely consistent with a 

non-hazardous shipment. The word "paint" printed on the side of the box as referred to in 

Complainant's complaint, Section I paragraph 3, is not a word that is synonymous with hazardous 

material and could refer to a variety of paints that are not regulated by the Hazardous Materials 
Regulations. In addition, the orientation arrows referred to in Complainant's Complaint, Section I 

paragraph 3, are not in conformance with the hazardous material regulations, specifically section 49 

C.F .R. 172.312. Further, the shipment in question was dropped off at aF~dEx Office facility, which 

per policy and FedEx Express terms and conditions does not accept hazardous materials on behalf of 

FedEx Express. Additionally, the FedEx Office facility had signage prominently posted to indicate 

that it does not accept dangerous goods. Finally, the shipper utilized automated FedEx software to 

generate their shipping label and affirmed that this shipment did not contain hazardous materials, an 

affirmation that FedEx Express is entitled to rely upon. Had the shipper properly indicated that their 

shipment contained hazardous materials during the preparation of their shipping label, the label 

would have indicated that the shipment contained a regulated commodity. Therefore, there is no 

duty for a reasonable person acting in these circumstances to further inquire into a shipment that, by 

its appearance and given all the relevant facts and circumstances, is consistent with a non-hazardous 

shipment. 

INTERROGATORY NO.6: Identify the names, addresses and phone numbers of each and 

every FedEx employee involved in the acceptance of the shipment on January 10, 2014 at the FedEx 

Office in Austin, Texas. 

RESPONSE: Respondent incorporates each of its General Objections above. Upon 

. information and beliefthe employees at FedEx Office who were involved in accepting the shipment 

are: 

Taler Kaufinan 

Center Manager 

Austin TX IH 35 at Slaughter 

9500 S Interstate 35 

Suite L550 

Austin, TX 78748 

512-292-1262 
Darell Moore 

Center Consultant 

Killeen TXUS 190 W 

2309 E Central Texas Expy 

Suite 300 

Killeen, TX 76543 

254-690-5584 

The Fec!Ex Express courier who retrieved the shipment from Fec!Ex Office was: 

Steven R. Worsham 

Courier 

5 811 Techni Center Dr. 

Austin, TX 78721 

281-876-4131 

Respondent further states that its fact investigation and trial preparation are ongoing, and 

discovery is not yet complete. Accordingly, Respondent reserves the right to amend and/or 

I 

supplement this response if it identifies any additional persons involved. in the acceptance of the 

shipment. 

INTERROGATORY NO.7: IdentifY the names, address and phone numbers of each and 

every Fec!Ex employee who failed to inspectthe shipment on January 10, 2014 at the Fec!E!' Office 

in Austin, Texas. 

RESPONSE: Respondent incorporates each of its General Objections above. Upon 

information and belief, Fec!Ex Office does not accept any hazardous material, as defined in in 49 

C .F .R 171, et seq, on behalf ofF edEx Express. Therefore Respondent objects to this request in that 

it seeks to imply an obligation on Fec!Ex Office to inspect hazardous material shipments pursuant to 

49 C.F.R 175.30. Further, nothing alleged in Complainant's complaint would give rise to an 

additional duty on behalf ofFec!Ex Office or Fec!Ex Express to inspect the shipment. Respondent 
asserts that at no time, did employees of Respondent or Fec!Ex Office lmowingly, as defined in 49 

U.S.C. 5123 (a) (1), accept an improperly prepared hazardous material shipment. For employees 

involved in the acceptance of the shipment, see answer to Complainant's Interrogatory Number 6. 

INTERROGATORY NO. 8: I~entifythe names of each and every employee in tbe Fec!Ex 

Office in Austin involved in this incident who received tbe following training: 

(a) General awareness/familiarization training; 

(b) Function-specific training; 

(c) Safety training; 

(d) Security awareness training; 

(e) In-depth security training; 

(f) Any other hazardous material training. 

RESPONSE: Respondent incorporates each of its General Objections above. Upon 

information and belief, the Fec!Ex Office in Austin is not a hazmat employer and none of its 

employees are hazmat employees as defined in 49 CRF 171.8, and therefore not subject to the 

training requirements ofthe Hazardous Materials Regulations. In response to Interrogatory 8 (f), 

botb Fec!Ex Office employees Kaufman and Moore received Dangerous Goods Assessment training 

and Dangerous Goods Handling training. 

INTERROGATORY NO. 9: Identify the dates tbe employees in the FedEx Office in 

Austin received training referred to in Interrogatory No. 6. 

RESPONSE: Respondent incorporates each of its General Objections above. Upon 

information and belief, Kanfi:nan completed Dangerous Goods Assessment on November 20, 2012 

and December 5, 2013 and Dangerous Goods Handling on February 11, 2014; Moore completed 
Dangerous Goods Assessment on November 17,2012 and January 15,2014 and Dangerous Goods 

Handling on February 20,2014. 

INTERROGATORY NO. 10: If your responses to each Request for Admission served is 

not an unqualified admission, then state all facts which you base your response to each and every 

qualified admission of Complainant's First Set of Requests for Admission. 

RESPONSE: See response to Complainant's Interrogatory Number 5. 

INTERROGATORY NO. 11: State the names, addresses and telephone numbers of all 

persons who have knowledge of the facts which you base your response to each and every qualified 

admission of Complainant's First Set of Request to Admit Facts. 

RESPONSE: See response to Complainant's Interrogatory Number 2. 

INTERROGATORY NO. 12: Identify all documents and other tangible things that 

support your response to each Request for Admission in Complainant's First Set of Request to 

Admit Facts. 

RESPONSE: Respondent incorporates each of its General Objections set forth above. 

Respondent objects to this request on the grounds that it seeks information that is neither relevant 

nor reasonably calculated to lead to the discovery of relevant evidence, it is overly broad, unduly 

burdensome, not sufficiently limited in relevant type, time or geographic scope, and not reasonably 

calculated to lead to the discovery of admissible evidence. Respondent further objects to this request 

to the extent that it seeks the disclosure of information that is protected by the attorney-client 

privilege and/or the work product doctrine. 
Subject to and without waiving these objections, Respondent identifies as follows the 

responsive, non-privileged documents in its possession, custody, or control to the extent such 

documents exist and can be located in the exercise of reasonable diligence and without undue 

burden: 

• Releasable portion ofF AA Investigative File, including but not limited to: 

o FAA Letter of Investigation dated January 17, 2014 

o FeclEx Express Response to Letter oflnvestigation, dated February 6, 2014, 

including attachment 

o Statement ofF AA Special Agent Anthony Jimenez 

o Package photographs, dated January 15,2014 

o Copy of the shipper's shipping label, dated January 10,2014 

o Package tracking printout for airway bill tracking number 797609866023 

• 2014 FeclEx Express Service Guide, including FedEx Express Terms and Conditions 

• E-mail dated February I 0, 2014 between Heidi McAuliffe of the American Coatings 

Association and David Littlejohn of FeclEx Express regarding regulated vs. nonregulated paint 

• E-mail exchange dated September 24, 2014 between Kim Shannon of AkzoNobel 

Coatings and David Littlejohn of FeclEx Express regarding regulated vs. nonregulated paint 

• FedEx Express Informal Conference Presentation 

• Statements of Taler Kaufinan and Darrel Moore, dated January 27,2014. 

Respondent further states that its fact investigation and trial preparation are ongoing, and 

discovery is not yet complete. Accordingly, Respondent reserves the right to amend and/or 
supplement this response if it identifies any additional documents that support Respondent's 

response to Complainant's Request to Admit Facts. 

INTERROGATORY NO. 13: State the name, address and telephone number of the 

person( s) who has each document or thing that supports your response to each Request for 

Admission in Complaint's First Set of Request to Admit Facts. 

RESPONSE: All documents referred to in Complainant's Interrogatory l3 are in possession 

of Respondent's Counsel. 

INTERROGATORYN0.14: Explain the factual basis for each denial in Federal Express 

Corporation's Answer to Complainant's complaint. 

RESPONSE: See response to Interrogatory Number 5. 

RESPONDENT'S RESPONSE TO COMPLAINANT'S FIRST REQUEST 

FOR PRODUCTION OF DOCUMENTS 

REQUEST TO PRODUCE NO. 1: Produce all documents supporting Respondent's 

answers to Complainant's First Set ofinterrogatories. 

RESPONSE: Documents identified in response to Interrogatories Number 3 and 12 and not 

already in the Complainant's possession (e.g. FAA enforcement file) are produced at Attachment l, 

along with the FedEx Office employee's training certificates for the courses referenced in 

Respondent's response to Interrogatory 8. Respondent further states that its fact investigation and 

trial preparation are ongoing, and discovery is not yet complete. Accordingly, Respondent reserves 
the right to amend and/or supplement this response if it identifies additional documents responsive to 

this request. 

REQUEST TO PRODUCE NO.2: Produce all documents supporting Respondent's 

answers to Complainant's First Set of Requests for Admission. 

RESPONSE: See documents identified and produced in response to Request to Produce 

Number 1. Respondent further states that its fact investigation and trial preparation are ongoing, and 

discovery is not yet complete. Accordingly, Respondent reserves the right to amend and/or 

supplement this response if it identifies additional documents responsive to this request. 

REQUEST TO PRODUCE NO.3: Produce any expert report intended to be used at trial. 

Pursuant to Federal Rule of Civil Procedure 26 (a)(B), the report shall contain a complete statement 

of all opinions to be expressed and the basis and reasons therefore; the data or other information 

considered by the witness in forming the opinions; any exhibits to be used as a summary of or 

support for the opinions; the qualifications of the witness, including a list of all publications authored 

by the witness within the preceding ten years; the compensation to be paid for the study and 

testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by 

deposition within the preceding four years. Any expert report in possession of Respondent or its 

counsel and any documents containing the information required by Federal Rule of Civil Procedure 

26 ( a)(B), whether in the form of a report, letter, or otherwise, should be produced in response to this 

demand whether or not it presently conforms to the Federal Rules cited above. 

RESPONSE: Respondent has not yet identified any expert report, but will amend and/or 

supplement this response if it identifies any expert. 
REQUEST TO PRODUCE NO.4: Produce a copy of each exhibit that Respondent intends 

to introduce into evidence at trial. 

RESPONSE: Please see documents produced at Attachment 2. Respondent further states 

that its fact investigation and trial preparation are ongoing, and discovery is not yet complete. 

Accordingly, Respondent reserves the right to amend and/or supplement this response if it identifies 

additional documents responsive to this request. 

Respectfully submitted, 

Federal Express Corporation 

"':~~:~/· ' .~;~-"-·""'~~· By: , ~ r-.:!:Y~· · Grevtdtko 1

( 

Attorney for Respondent 

1700 Pennsylvania Ave., NW 

Suite 950 

Washington, DC 20006 

(202) 393-9285 

greg.stofko@fedex.com 
CERTIFICATE OF SERVICE 

I hereby certify that the foregoing document has been sent via Federal Express to the 

following: 

Mr. James Archier, Attorney 

Federal Aviation Administration 

Office of the Regional Counsel 

2601 Meacham Boulevard 

Fort Worth, Texas 76137 

Dated this 29th day of January, 2015 . 

By: . ~_&zf;yt!ord ,;y/ ,.·- i ·"' 

GregStofko / 

Atmmey for Respondent 

1700 Pennsylvania Ave., NW 

Suite 950 

Washington, DC 20006 

(202) 393-9285 

greg.stofko@fedex.com 
U.S. DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

OFFICE OF HEARINGS 

WASHINGTON, DC H 

In the Matter of 

Federal Express Corporation 

Respondent 

THE HONORABLE RICHARD C. GOODWIN 

U.S. Administrative Law Judge 

FAA DOCKET No. NOT ASSIGNED 

FAA Case No. 2014SW700042 

(Civil Penalty Action) 

FDMS No. FAA 2014-0864 

COMPLAINANT'S RESPONSE TO RESPONDENT'S FIRST SET OF REQUESTS FOR 

ADMISSION 

NOW COMES, the Federal Aviation Administration (hereinafter 

"FAA") by and through the undersigned pursuant to Rule 13.220 of 

Subpart G-Rules of Practice in FAA Civil Penalty Actions, as 

guided by the applicable Federal Rules of Civil Procedure (F.R. 

Civ. P. 360 and hereby responds to Respondent, Federal Express 

Corporation's First Set of Requests for Admissions as follows: 

Request for Admission No. 1: The shipment with air waybill 

tracking number 797609866023 was not accompanied by the shipping 

papers required by the Department of Transportation Hazardous 

Materials Regulations (HMR) . 

Admit. 

Request for Admission No. 2: The shipment with air waybill 

tracking number 797609866023 was not marked with the assigned UN 

number required by the HMR. 

Admit. 

Request for Admission No. 3: The shipment with air waybill 

tracking number 797609866023 was not labeled with the hazard 

label required by the HMR. 

Admit. 
Request for Admission No. 4: Numerous paints are offered 

for transportation, including transportation by air, that are 

not classified as hazardous materials under the HMR and, 

therefore, are not regulated by the HMR. 

Cannot Admit or Deny. The information known is 

insufficient to enable the FAA to admit or deny. A reasonable 

inquiry has been made. The FAA does not maintain data on the 

amount of paints offered for transportation, including 

transportation by air, that are not classified as hazardous 

materials under the HMR and therefore, are not regulated by the 

HMR. 

Request for Admission No. 5: The word "Paint" can refer to 

materials that are not classified as hazardous materials under 

the HMR and, therefore, are not regulated by the HMR. 

Admit. 

Request for Admission No. 6: Acceptance of a package 

marked with the word "Paint," but without any hazardous material 

shipping papers, marks, or labels, and not in UN specification 

packaging, is not a violation of the HMR. 

Denied. 

Request for Admission No. 7: Acceptance of a package 

marked with the word "Paint," but without any hazardous material 

shipping papers, marks,. or labels, and not in UN specification 

packaging, does not warrant a civil penalty at the top of range 

of the FAA's matrix for air carrier and other aircraft operator 

violations set for the in FAA Order 2150.38, Appendix C, 

Sanctions Guidance Hazardous Materials Enforcement. 

Objection. Complainant objects to this request on the 

basis of deliberative process. 

Request for Admission No. 8: 

commerce that is not regulated by 

regulated by the HMR. 

There is more paint in 

the HMR than there is paint 

Cannot Admit or Deny. The information known is 

insufficient to enable the FAA to admit or deny. A reasonable 

inquiry has been made. The FAA does not maintain data on the 

exact amounts of paint that travels in commerce that is not 

regulated by the hazardous material regulations. 

2 
Request for Admission No. 9: Orientation arrows commonly 

are marked on packages that contain materials that are not 

classified as hazardous materials under the HMR. 

Cannot Admit or Deny. The information known is 

insufficient to enable the FAA to admit or deny. A reasonable 

inquiry has been made. The FAA does not maintain data on the 

number of packages traveling in commerce with or without 

orientation arrows. 

Request for Admission No. 10: The words "This End Up" 

commonly are marked on packages that contain materials that are 

not classified as hazardous materials under the HMR. 

Cannot Admit or Deny. The information known is 

insufficient to enable the FAA to admit or deny. A reasonable 

inquiry has been made. The FAA does not maintain data on the 

number of packages traveling in commerce with the language "This 

End Up" that are not hazardous materials under the HMR. 

Request for Admission No. 11: The blue orientation arrows 

that are marked on one vertical side of the package with air 

waybill tracking number 797609866023 do not comply with the 

requirements of 49 C.F.R. § 172.312. 

Admit. 

Request for Admission No. 12: The air waybill with tracking 

number 797609866023 (IOP number 4 in the FAA's Enforcement 

Investigative Report) did not contain a notation "ADG," "IDG," 

or "ICE," in the lower right box. 

Admit. 

Request for Admission No. 13: During the period of January 

1, 2009, through January 9, 2014, except for this matter, the 

FAA has not initiated and pursued civil penalty action against 

an air carrier for improperly accepting for transportation an 

undeclared shipment of paint in cases factually similar to the 

case in this proceeding. 

Objection. The FAA objects to this request on the basis of 

relevance. This request is not relevant because the FAA does 

not enforce cases against air carriers for accepting undeclared 

shipments. 

3 
Respectfully submitted this 12ili day of March 2015. 

ERIC E. ANDERSON 

Regional Counsel 

Southwest Region 

By: ~=-· ~~~~~------------ ~ es Archier, 

/. Agency Attorney 

/ Federal Aviation Administration 

Office of the Regional Counsel 

Southwest Region 

2601 Meacham Blvd., 

Fort Worth, Texas 76137 

(817) 222-5074 

4 
CERTIFICATE OF SERVICE 

Re: Federal Express Corporation, FAA Case No. 2014SW700042 

I hereby certify that on March 12, 2015, I have sent via 

Federal Express an executed original and one copy of 

Complainant's Response to Respondent's First Set of 

Interrogatories, Requests For Admissions and Requests For 

Production of Documents addressed as follows to: 

TEL: (202) 393-9285 

FAX: (202) 628-0654 

Mr. Greg G. Stofko 

Senior Attorney 

Regulatory Affairs 

Federal Express Corporation 

1700 Pennsylvania Avenue, N.W. 

Suite 950 

Washington, DC 20006 

EMAIL: greg.stofko@fedex.com 

TEL: (202) 496-7356 

Allan H. Horowitz 

McKenna Long & Alridge LLP 

1900 K Street, NW 

Washington DC 20006 

EMAIL: ahorowitz@mckennalong.com 

5 
ERIC E. ANDERSON 

Regional Counsel 

Southwest Region 

o.f F ~~' 

By: //f .{.X'jll4 

ames Archier, 

Agency Attorney 

ederal Aviation Administration 

• Office of the Regional Counsel 

Southwest Region 

2601 Meacham Blvd., 

Fort Worth, Texas 76137 

(817) 222-5074 

6 

Dated: March 12, 2015