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wE^^ARTkiEMT OF 

iiiAMbPORTATlON 

•"r:rr M OPtRATlOHS 

U.S. DEPARTT^'EEKT OF TRANSPORTATION ' 

FEDERAL AVIATION ADMINISTRATION,. ^. ^ -- -• qh 

OFFICE OF HEARINGS '-'^^^ '•^'^ I 1 i- .r 34 

WASHINGTON, D.C, 

In the MaLier oflvy Enterprises, Inc. 

2010SO700376 

Judge Not Assigned 

COMPLAINANT'S RESPONSE TO RESPONDENT'S MOTION FOR A MORE 

DEFINITE STATEMENT 

COMES NOW, the Federal Aviation Administration, (hereinafter "Complainant"), by 

and through its designated representative, the Regional Counsel for the Eastern Region, and his 

duly designated and authorized agents and responds to Respondent's Motion For a More Definite 

Statement in the abovc-captioned matter, ptirsuani to 49 C.F.R. §13.218(d) and 13.211(e). as 

follows, and requests the Motion be denied in all respects. 

STATEMENT OF THE CASE 

Complainani issued a Notice of Proposed Civil Penalty to Ivy Enterprises. Inc. (herein after 

''Respondent") on Septamber 16,2010. On September 15,2011, Complainant issued a Final Notice 

of Proposed Civjl Penalty and on September 28, 2011, Respondent submitted a written demand for 

a hearing. Complainant filed its Complaint pursuant Co Rule 208 of the Rules of Practice (14 

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C.F.R. 13.208) on October 3, 2011, and on November 1, 2011, Respondent filed a Motion for a 

More Definite Statement (hereinafter ''Respondent's Motion") puf^iiant to 14 C.F.R. 

§§ 13.218(f)(3). The factual allegations and findings of regulatory violation in the Complaint state 

as follows: 

II. 

1. On or about July 22, 2010, Ivy Enterprises. Inc. fTvy Enterprises") knowingly 

offered to United Parcel Service ("UPS") a fiberboard box ("shipment") 

containing hazardous materials for transportation by air. 

2. The shipment, assigned UPS tracking number IZ A05 365 04 9206 2020, was 

offered for UPS Saver Service. 

3. At all times mentioned herein, the shipment was not accompanied by a Shipper's 

Certification or Declaration of Dangerous Goods. 

4. On or about July 23, 2010, ground-handling personnel at the UPS sort facility in 

Louisville, Kentucky discovered the shipment leaking. 

5. The fiberboard box described in paragraph I contained twelve (12) inner 

fiberboard boxes ("inner boxes"). 

6. Inside each iimer box were two containers of (2) Kiss Artificial Nail Remover. 

7. Further investigation showed that due to a loose lid, the contents of one container 

had leaked into and through the fiberboard box. 

8. Kiss Artificial Nail Remover is classified as a hazardous material under the 

Department of Transportation Hazardous Materials Regulations (HMR) (49 

C.F.R. § 172.101). 

9. The proper shipping name of Kiss Ariificial Nail Remover is Acetone. It is in 

Hazard Class 3. Packing Group U, and has an. assigned identification number of 

UN1090. The proper label is FLAMMABLE LIQUID. 

10. Ivy Enterprises offered the shipment of hazardous material for transportation by 

air without shipping papers that included; 

(a) the assigned identification number prescribed for ca£h material; 

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(b) the proper shipping name prescribed for each material; 

(c) tlie hazard class prescribed for each material; 

(d) the packing group prescribed for each material; 

(e) the total net mass per package; pnd 

(f) the number and type of packages. 

11. Ivy Enterprises offered the shipment of hazardous material for transportation by 

air and failed to: 

(a) certify that the materials were in accordance with tlie MMR (49 C.F.R. §§ 

171, et se^.) by printing the cenification set forth in § 172.204(a) or § 

172.204(c)(1) of the HMR; 

(b) prepare the required certifications in duplicate; and 

(c) add the following statement to the certification: 

" 1 declare that all of the applicable air transport requirements have been 

met," 

12. Ivy Enterprises offered the shipment of hazardous materials for transportation by 

air and failed to: 

(a) maik the outer container with the proper shipping name of each hazardous 

material contained therein; 

(b) mark the outer container with the assigned identification number of each 

hazardous material contained therein; 

(c) mark the outer container with standard orientation markings; and 

(d) affix a FLAMMABLE LIQUID label to the outer container. 

13. Ivy Enterprises offered. The shipment of hazardous tnaterials for transportation by 

air and failed to provide emergency response information. 

14. Ivy Enterprises offered the shipment of hazardous materials for transportation by 

air and failed to provide an emergency response telephone number. 

15. Ivy Enterprises offered tlie shipment of hazardous materials for transportation by 

air and failed lo ensure that the liazmat employee responsible for preparine the 

shipment was properly trained, 

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16. Ivy Enterprises offered the shipment of hazardous materials for transportation by 

air and failed to package it so there would be no identifiable release of hazardous 

material to the environment. 

17. Ivy Enterprises offered the shipment of hazardous materials for transportation by 

air and failed to ensure tlie closiue was secure and leakproof 

18. Ivy Enterprises offered the shipment of hazardous materials for transportation by 

air and failed to use an authorized packaging for its transportation. 

Ill 

By reason of the foregoing facts and circumstances. Respondent violated the following secTion(s) of 

the Department of Transportation Hazardous Materials Regulations: 

a. Section 171.2(e), which states that no person may offer or accept a hazardous 

material for transportaiion in commerce unless the hazardous material is properly 

classed, described, packaged, marked, labeled, and in condition for shipment as 

required or authorized by applicable requirements of this subchapter or an 

exemption or special permit, approval, or registration issued under this subchapter or 

subchapter A of this chapter. 

b, Section 172.200(a), which states that, except as otherwise provided in this subpart, 

each person who offers a hazardous material for transportadon shall describe the 

hazardous material on the shipping paper in the manner required by this subpart. * 

c. Section 172.202(a)(1), which states that the shipping description-of a hazardous 

material on the shipping paper must include the idcntilication number prescribed for 

the material as shown in Column (4) of the §172.101 table. 

d. Section 172.202(a)(2), which stales that the shipping description of a hazardous 

material on the shipping paper must include the proper shipping name prescribed for 

the material in Column (2) ofthe §172.101 table. 

e. Section 172.202(a)(3), which states that the shipping description of a hazardous 

material on the shipping paper must include the hazard class or division number 

prescribed for the material, as shown in Column (3) of the §172.101 table. The 

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subsidiary hazard class or division number is not required to be entered when a 

corresponding subsidiary hazard label is not required. Except for combustible 

liquids, the subsidiary hazard class(es) or subsidiary division nuniber(s) must be 

entered in parentheses immcdiftiely foUowing the primary hazard class or division 

number. In addition— (i) The. words "Class" or "Division" may be included 

preceding the primary and subsidiary hazard class or division numbers, (ii) The 

hazard class need not be included for the entry "Combustible liqirid, n.o.s." (iii) For 

domestic shipments, primary and subsidiary hazard class or division names may be 

entered following the numerical hazard class or division, or following the basic 

descripdon. 

Section 172.202(a)(4), which states that the shipping descripdon of a hazardous 

material on the shipping paper must include the packing group in Roman numerals, 

as designated for the hazardous material in Column (5) of the § 172.101 table. Class 

1 (explosives) materials: self-reactive substances; batteries other than those 

containing lithium, lithium ions, or sodium; Division 5.2 materials; and entries that 

are not assigned a packing group (e.g., Class 7) are excepted ftom this requirement. 

The packing group may be preceded by the letters "PC" for example "PG II". 

Section 172.202(a)(6), which states that the shipping description of a hazardous 

material on the for transportation by aircraft, the total net mass per package, must be 

shown unless a gross mass is indicated in Columns (9A) or (9B) of the §172.101 

table in which case the total gross mass per package must be shown; or, for Class 7 

materials, the quantity of radioactive material must be shown by activity. The 

following provisions also apply: (i) For empty uncleaned packaging, only the 

number and type of packaging must be shown; (ii) For chemical kits and first aid 

kits, the total net mass of hazardous materials miist be shown. Where the kits contain 

only liquids, or solids and Uquids, the net mass of liquids within the kits is to be 

calculated on a 1 to 1 basis, i.e., 1 L (0.3 gallons) equals 1 kg (22 pounds); (iii) For 

dangerous goods in machinery or apparatus, the individual total quantifies or an 

estimate of the individual total quantities of dangerous goods in solid, liquid or 

gaseous state, contained in the article must be shown; (iv) For dangerous goods 

transported in a salvage packaging, an estimate of the quantity of dangerous goods 

per package nmst be shown; (v) For cylinders, total quaatiiy may be indicated by the 

number ofcylindcre, for example, "10 cylinders;" (vi) For items where "No Limit" is 

shown in Column (9A) or (9B) ofthe § 172.101 table, the quantity shou-n must be 

the net mass or volume ofthe material. For articles (e.g., UN2800 and UN3166) the 

quantity must be the gross mass, followed by the letter "G". 

h. Section 172.202(a)(7), which stales that the shipping description of a hazardous 

material on the .shipping paper must include the number and t)pe of packages must 

be indicated. The type of packages must be indicated by description of the package 

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(for example, "12 drums")- Indication of the packaging spectficarion number 

("IHl") may be included in the description of the package (for example, "12 IHl 

drums" or "12 dnims (UN lAl)"), Abbreviations may be used for indicating 

packaging types (for example, "cyl." for "cylinder") provided the abbreviations are 

conunonly accepted and recognizableSection 172.203(f), which states that when a package containing a hazardous 

material is offered for transportation by air and this subchapter prohibits its 

transportation aboard passenger-canying aircraft, the words "Cargo aircraft only" 

must be entered after the basic description. 

Section 172.204(a), which states that, except as provided in paragraphs (b) and (c) of 

this section, each person who offers a hazardous material tor transportation shall 

certify that the material is offered for transportation in accordance with this 

subchapter by printing (manually or mechanically) on the shipping paper containing 

the required shipping description the certification contained in paragraph (a)(1) of 

this section or the certification (declaration) containing the language contained in 

paragraph (a)(2) of this section. 

k. Section 172.204(cXl), which states that certification containing tlie following 

language may be used in place of the cenification required b>' paragraph (a) of this 

section; I hereby certify that the contents of this consignment are fully and 

accurately described above by proper shipping name and are classified, packed, 

marked and labeled, and in proper condition for carriage by air according to 

applicable national governmental regulations. 

Section 172,204(.c)(2), which states that each person who offers a tiazardous material 

to an aircraft operator for transportation by air shall provide two copies of the 

certification required in this section. (See §175.30 of this subchapter.) 

m. Section l72.2Q4(c)(3), which states that effective October 1, 2006, each person who 

offers a hazardous material for transportaiion by air must add to the certification 

required in this section the following statement;"! declare that all ofthe applicable 

air transport requirements liavc been met" (i) Each person who offers any package 

or overpack of hazardous materials tor transport by air must ensure that: (A) The 

articles or substances are not prohibited for transport by air (see the §172.101 

Table); (B) The articles or substances are properly classed, marked and labeled and 

otheTT,vise in a condition for transport as required by this subchapter; (C) The articles 

or substances are packaged in accordance with all the applicable air transport 

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requiremcnTs, including appropriate types of packaging that conform to the packing 

requiremcntfi and the "A" Special Provisions in §172.102; inner packaging and 

maximum quantity per package limits; the compalibiUty requirements (see, for 

example, §173.24 of this subchapter); and requirements for closure for both inner 

and outer packagings, absorbent materials, and pressure differential in §173.27 of 

this subchapter. Other requirements may also apply. For example, single packagings 

may be prohibited, inner packaging may need to be packed in intermediate 

packaginga, ind certain materials may be required to be transported in packagings 

meeting a more stringent performance level. 

n. Section 172.300(a), which states that each person who offers a hazardous material 

for transportation shall mark each package, freight container^ and uansport vehicle 

containing the hazardous material in the marmer required by this subpart. 

0. Section 172.301(a)(1), which states that, except as otherwise provided by this 

subchapter, each person who offers a hazardous material for transportation in a nonbulk packaging must mark the package with the proper shipping name and 

identitlcation number (preceded by "UN" or "NA," as appropriate) for the materia! 

as shourn in the §172.101 Table. Identification numbers are not required on 

packagings that contain only ORM-D materials or limited qtiantities, as defined in 

§171.8 of this subchapter, except for limited quantities marked in accordance with 

the marking requirements in § 172.315. 

Section 172.312(a)(2), which states that, except as provided in this section, each 

non-biilk combination package having inner packag^^es containing liquid hazardous 

materials^ single packaging fitted with vents, or open cryogenic receptacle intended 

for the transport of refrigerated liquefied gases must be legibly marked with package 

orientation markings that are similar to the illustration shown in this paragraph, on 

two opposite vertical sides of the package with the arrows pointing in the correct 

upright direction. The arrows must be either black or red on white or other suitable 

contrasting background and commensurate with the size ofthe package. Depicting a 

rectangular border around the arrows is optional. 

q. Section 172.400(a), which states that except as specified in §172,400a, each person 

who offers for transportation or transports a hazardous material in any of the 

following packages or containment devices, shall label the package or containment 

device with labels specified for the material in the §172.101 Table and in this 

stibpart. (1) A non-bulk package; (2) A bulk packaging, other than a cargo tank, 

portable tank, or tank car, with a volumetric capacity of less than 18 m3 (640 cubic 

feet), unless placarded in accordance with subpart F of this parr, (3) A portable tank 

of less than 3785 L (1000 gallons) capacity, unless placarded in accordance with 

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subpart F of this part; (4) A DOT Specification 106 or 110 multi-unit tank car tank, 

unless placarded in accordance with subpart F of this part; and (5) An ovcipack, 

freight container or unit load device, of less than 18 m3 (640 cubic feet), which 

contains a package for which labels are required, unless placarded or marked in 

accordance with §172..'512 of this part 

Section 172.600(a), which stales that, except as provided in paragraph (d) of this 

section, this subpart prescribes requirements for providing and maintaining 

emergency response information during transportation and at facihtics where 

hazardous materials arc loaded for transportation, stored incidental to transportation 

or otherwise handled during any phase of transportation, 

s. Section 172.604(a), which states that a person who offers a hazardous material for 

transportation must provide a 24-hour emergency response telephone number 

(including the area code or inlemational access code) for use in the event of an 

emergency involving the hazardous material. The telephone number must be (1) 

Monitored at all times the hazardous material is in transportation, including storage 

incidental to transportation; (2) The number of a person who is either knowledgeable 

ofthe hazardous material being shipped and has comprehensive emergency response 

and incident mitigation information for that material or has immediate access to a 

person who possesses such knowledge and information and (3) Entered on a 

shipping paper, as follows: (i) Immediately following the description of the 

hazardous material required by subpart C of this part; or (ii) Entered once on the 

shipping paper in a clearly visible location. This provision may be used only if the 

telephone number applies to each hazardous material entered on the shipping paper, 

and if it is indicated that the telephone number is for emergeaicy response 

intbrmoTion (for example; EMERGENCY CONTACT:***), 

t. Section 172,702(a), which states that a hazmal employer shall ensure that each of its 

hazmat employees is trained in accordance with the requirements prescribed in this 

subpart 

u. Section 172.704(a)(1), which states that hazmat employee training shall include the 

following: Each hazmat employee shall be provided general 

awareness/familiarization training designed to provide familiarity with the 

requirements of this subchapter, and to enable the employee to recognize and 

identify hazardous materials consistent with the hazard communication standards of 

this subchapter. 

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Section 172.704(a)(2)(i), which states that except as otherwise provided, each 

hazmat employee shall be provided function-specific training concerning 

requirements of this subchapter, or exemptions issued under subchapter A of this 

chapter, which are specifically applicable to the fiinctions the employee performs. 

w. Section 172.704(a)(3), which states that each hazmat employee shall receive safety 

uaining concerning (i) Emergency response information reqtiircd by subpart G of 

part 172; (ii) Measures to protect the employee from the hazards associated with 

hazardous materials to which they may be exposed in the work place, including 

specific measures the hazmat employer has implemented to protea employees from 

exposure; and (iii) Methods and procedures for avoiding accidents, such as tlie 

proper procedures for handling packages containing hazardous materials. 

X. Section 173.202(a), which states that when §172.101 of this subchapter specifies that 

a liquid hazardous material be packaged tmder this section, only non-bulk 

packagings prescribed in this section may be used for its transportation. Each 

packaging must conform to the general pacliaging re<5uirements of subpart B of part 

173 to the requirements of Part 178 of this subchapter at the Packing Group I or II 

perfonuance level (unless otheiwise excepted), and to the particular requirements of 

the special provisions of Column 7 of the §172.101 Table. 

y. Section 173.24(b)(1), which states that, each package used for the shipment of 

hazardous materials imder this subchapter shall be designed; constructed, 

maintained, filled, its contents so limited, and closed, so that under conditions 

normally incident to transportation, except as otherwise provided in this subchapter, 

there uiU be no identifiable (without the use of instruments) release of hazardous 

material to tlie environmenr. 

z. Section 173.24(f)(I)(i), which states that closures on packagings shall be so 

designed and closed that under conditions (including the effects of temperature, 

pressure and vibration) normally incident to transportation except as provided in 

paragraph (g) of this section, tliere is no identifiable release of hazardous materials to 

the environment from the opening to which the closure is applied. 

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STATEMENT OF TIIE ISSUE 

I. Whether the Complaint Gives Respondent Sufficient Notice of the Facmal 

Allegations, Legal Allegations, and Proposed Civil Penalty 

ARGUMENT 

I. The Complaint Providesjlespondent Sufficient Notice Of The Facta Alleged, the 

Regulatory Violations, and the Proposed Ci"vil^enaltY 

Under the FAA'S Rules of Practice in FAA Civil Penalty Actions, 14 CFR Section 

13.208(c): 

A complaint shall set forth the facts alleged, any regulation allegedly violated by the 

respondent, and the proposed civil penalty in sufficient detail to provide notice of any 

factual or legal allegation and proposed civil penalty. (14 CFR Section 13.208(c)) 

This standard for the sufficiency of a complaint incorporaies the concept of "notice 

pleading". (See, In the Matter of Gerald W Keller, Order Denying Motion to Dismiss 

Complaint, FAA Docket No. CP06GL0007 (2006)). The complnint is, therefore, sufficient if it 

simply provides Respondent with notice ofthe factual and legal allegations it will have to meet 

to avoid assessment of a civil penalty. 

The instant complaint satisfies the requirements of notice pleading and Re.ipondcnl's 

Motion for a More Definite Statement should be denied. Specifically, the instant complaint puts 

Respondent on notice of the dnte of alleged violations; the acts which constitute the alleged 

violations; the legal authority under which Complainant is proceeding; and the civil penalty 

Complainant is seeking. 

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Under Hazardous Materials Transportation Act, (HMTA), the governing statute, a person 

acts knowingly when the person has acmal knowledge ofthe facts giving rise to the violation; or 

a reasonable person acting in the circumstances and exercising reasonable care would have that 

knowledge.(49 U.S.C. § 5123(a)(l)CA)). Knowledge is also an element of a violation ofthe 

Department of Transportation, Hazardous Materials Transportation Regulations, (DOT HMR), 

(49 CFR 171 et. seq;49 CFR l7M(g)), 

The Board pointed out. In the Matter ofRiverdale Mills Corporarion, FAA Order 2003-

10; Docket No, CP98NE0017 (September 12, 2003) that the knowledge may.be actual or 

constructive and explained that a person must have known the ^facts giving rise to the violation" 

and that'" ...knowledge of the law is unnecessary; persons are liable even if they do not know 

they are breaking the law" See Riverdale Mills Corn.. FAA Order No. 2003-10 . p. 5 (Sept. 12, 

2003); Scott R ."^mallmp, FAA Order No. 94-31 ; p. 7 (Oct. 5, 1994) 

Contrary to Respondent's contention, Complainant is not required ro set forth the legal 

standard of knowingly in its factual allegations. Rather, it is only required to allege facts that 

establish the regulator^' violation. Further, the Rules of Practice do not require Complainant to 

set forth its evidence in detail in the complaint. The knowledge standard of the HMTA is clear 

and the complaint contains fact^ alleging that Respondent violated this standard. It is enough 

that the complaint simply alleges thai Respondent acted knowingly when it offered a shipment of 

hazardous maierial for transportation by air. Paragraph II, subparagraph I of the complaint 

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.•states: "On or about July 22, 2010, Ivy Enterprises. Inc. ("Ivy Enterprises") lorowtngly offered 

to United Parcel Service ("UPS") a fiberboard box (''shipment") containing hazardous 

materials for transportation by air." As the AJ explained in his Order Striking Affirmative 

Defenses and Amending Caption ofthe Case, In The Matter of KMC Acquisition Corporation 

d/b/a/Kirkhill Manufacturing Company', FAA Docket, No,CP08SO0004, DMS No. FAA-200S0235 (August 6: 2008); "It is difficult to conceive of any plainer way to allege the mens rea 

required to state a violation ofthe IOVLC 

CONCLUSION 

The complaint in the instant matter specifically alleges that Respondent acted knowingly 

when it offered hazardous material for air transportation and sets forth detailed supporting facts 

for its allegations. Paragraph II, subparagraphs 1-18 specifically and definitely allege the facmal 

allegations sufficient to support the alleged regulatory violations plead in the complaint. If 

proven, these facts support a conclusion that Respondent violated the regulations set forth in the 

complaint. Further, by virtue of Respondent''s motion setting forth the standard ofthe law, it is 

clear that Respondent understands the issue and is able to answer the complaint and is afforded 

tlie oppormnity to justify its conduct dtmng the course of the litigation. (See Aloha Airlines, Inc. 

V. Civil Aeronautics Board, 598 F. 2d. 250, 262 (DC Cir. 1979, (quoting NIRB v. Mackey Radio 

(£ Tel Co., 304 US 333, 350 (1938'): Flying Food GrouD> Inc. v. NLRB. 471 F, 3d 178, 183 (DC 

Cir. 2006). 

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WHEREFORE, Complainant respcctfiilly requests that Respondent's Motion be denied. 

Respectfully submitted, 

Alfted R. Johnson, Jr. 

Regional Counsel 

Bv: hiCS^Q-^ ^ 

Jeanine C, Gotimer 

Attorney 

Federal Aviation Administration 

1 Aviation Plaza 

Jamaica, NY 11434 

718 553-3272 

Fax 718 995-5699 

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CERTIFICATE OF SERVICF. 

I hereby certify that on this day copies of the foregoing Complainant's Response to Respondent's 

Morion For More Definite Statement were sent by First Class Mail and by Facsimile addressed as 

follows: 

Federal Aviation Administration (Original and one copy) 

800 Independence Avenue, S.W. 

Washington, D.C. 20591 

Atm: Hearing Docket Clerk, AGC'430 

Wilbur Wright Building - Room 2014 

(FAX) 202-366-7536 

Alexander G. Batcman, Jr. Esq. 

Ruskin Moscou Faltischek P.C. 

1425 RexCoip Plaza 

East Tower -15ih Floor 

Uniondale, NY 11556 

(FAX) 516-663-6601 

Date: ^^" ^ ' ''' ' 

Lisa Hooks 

Paralegal Specialist 

Federal Aviation Administration 

Office of Regional Counsel 

1 Aviation Plaza 

Jamaica, NY 11434 

CI •^. r.lAi m 

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