U.S. Department Eastern Region 1 Aviation Plaza 

of Transportation Regional Counsel Jamaica, NY 11434 

Telephone: 718 553-3272 

Federal Aviation Facsimile. 718 995-5699 

Administration 

OCT 3 20'n 

CERTIFIED MAIL - RBTURN RECEIPT REQUESTliD 

Federal Aviation Administralion 

800 Independence Avenue, S.W. QQ^ \ \ 2011 

Washington, D.C. 20591 

Attn: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building- Room 2014 

HEARING DOCKET 

AITN: HEARING DOCKET CLERK 

Re: In the Matter of l\y Enterprises, Inc. 

Docket No. 2010SO700376 /^J)\d^'Pt\)^Pr(l{^- ODSia 

Enclosed herein please Hnd a copy of a request for hearing and the original and one copy of 

the FAA's Complaint in the above-entitled action for Uling, together with proof of service 

upon the Respondent. 

'fhe FAA requests that the hearing in this matter be held in the New York City, New York 

area, and expects that the hearing will last one day. 

Please address all communications for the Federal Aviation Administration to the attention 

of Jeanine C. Golimcr, Office of the Regional Counsel, 1 Aviation Plaza Jamaica, NY 

11434. 

Sincerely, 

Alfred R. Johnson, Jr. 

Regional Counsel 

Bv: 

; _rjj 

Jeanine C. Gotimer / ^j !r^-JO-5^ 

/\ttomey ..^ S'^ S 

r^c:^^ 

Enclosures "' ~^^~^ 

'•S~ 

cc: AEA-700 
RUSKINMDSCOUFALTISCHEKPC. 

Counselors at Law 

Writer's Direct Dial: (516)663-6589 

Writer's Direct Kax: (516)663 6789 

Writer's F.-Mail: abateman@rmrpc.com 

VIA FEDERAL EXPRESS 

September 27, 2011 

Hearing Docket Clerk 

Hearing Docket, Federal Aviation Administration 

800 Independence Avenue, S.W., Room 924A 

Washington, D.C. 20591 

Attention: Hearing Docket Clerk 

Re: Docket No.: 201050700376 

To Whom It May Concern: 

This Firm represents Ivy Enterprises, Inc., the Respondent in the above-matter. We are in 

receipt of a Final Notice of Proposed Civil Penalty dated September 16, 2011. 

On behalf of Wy Enterprises, Inc., we hereby request a formal hearing in accordance with 

Section 13.16 of the Federal Aviation Regulation in this matter. We request that the hearing be 

held in New York. Please find enclosed a completed Hearing request form as well. 

Sincerely, 

ALEXANDER G. BATEMAN, JR. 

For the Firm 

AGB:rlm 

Enc. 

cc: Ivy Enterprises, Inc. 

Regional Counsel for the Eastern Region i / 

RECEIVED - AEA-007 

SEP 2 9 2011 

LTS 
U.S. DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMFNIS'FRATION 

OFFICE OF HEARINGS 

WASHINGTON. D.C. 

In the Matter of Ivy Enterprises, Inc. 

2010SO700376 

Judge Not Assigned 

COMPLAINT 

The Federal Aviation Administration (FAA), by counsel, hereby Hies its Complaint, 

pursuant to Rule 208 of the Rules of Practice (14 C.F.R. 13.208), and states as follows: 

I 

Respondent, Ivy Entei-prises, hic, was advised through a Final Notice of Proposed Civil 

Penalty that the FAA proposed to assess a civil penalty in the amount of $73,500. On 

September 29, 20) I, Respondent submitted a written dcjiiand for a hearing. 

II 

1. On or about July 22. 2010, h ^ Enterprises, Inc. ("Ivy Enterprises") 

knowingly offered to United Parcel Service ("Ul'S'') a Fiberboard box 

(''shipment'') containing hazardous materials for transportation by air. 

2. The shipment, assigned UPS tracking number \Z A05 365 04 9206 2020, 

was offered for UPS Saver Service. 

J . At all times mentioned herein, the shipment was not accompanied bv a 

Shipper's CertiHeation 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 ilbcrboard box described in paragraph 1 contained twelve (12) inner 

fiberboard boxes ("inner boxes"). 

6. hiside each inner box were two containers of (2) Kis.s Arlificial Nail 

Remover. 

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

container had leaked into and through the fiberboard box. 

8. Kiss Arlificial Nail Remover is classillcd 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 Arlificial Nail Remover is Acetone. U is 

in Hazard Class 3, Packing Group II, and has an assigned identification 

number of UN1090. The proper label is FLAMMABLE LIQUID. 

10. \vy Enterprises offered the shipment of hazardous material for 

transportation by air without shipping papers that included: 

(a) the assigned identification number prescribed for each material; 

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

(c) the hazard class prescribed for each material; 

(d) the packing group prescribed for each material; 

(e) the total net mass per package; and 

(f) tiie number and type of packages. 

II. Ivy Enteiprises offered the shipment of hazardous material for 

transportation by air and failed to: 

(a) certify that the materials were in accordance with the HMR (49 

C.F.R. §§ 171, ct seq.) by printing the certi llcation set forth in § 

172.204(a) or § 172.204(c)(1) of the HMR; 

(b) prepare the required cciiifications in duplicate; and 

(c) add the following statement to die certification: 
" I declare that ail of the applicable air transport requirements have 

been met." 

12. \\y Enterprises offered the shipment of hazardous Jtiaterials for 

transportation by air and failed to: 

(a) mark 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. h j Enterprises offered the shipment of hazardous materials for 

transportation by air and Atilcd 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 Enteiprises offered the shipment of hazardous materials for 

transportation by air and failed to ensure that the hazmal employee 

responsible for preparing the shipfnent was properly (rained. 

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 the closure was secure and 

leakproof 

18. Ivy Enterprises offered the shipment of hazardous materials for 

transportation by air and tailed 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 Flazardous Materials Regulations: 

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

material for transportation in comnieree 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 pemiit, approval, or registration issued 

under this subchapter or subchapter A of this.chaptcr. 

b. Section 172.200(a), which states that, except as othei-wise provided in this 

subpart, each person who offers a hazardous material for transportation 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 idenlification 

number prescribeti for the material as shown in Column (4) of the §172.101 

table. 
d. Section 172.202(a)(2), which states that the shipping description of a 

hazardous material on the shipping paper must include the proper shipping 

name prescribed for the material in Cohmin (2) of the ijl72.)0! 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 materia), as shown in Colunin (3) of the 

§}72A0] table. The suhsidiaiy hazard class or division number is not 

required to be entered when a con'csponding subsidiary hazard label is not 

required. Except for combustible liquids, the subsidiai-y hazard elass(es) or 

subsidiary division number(s) must be entered in parentheses immediately 

following the primar)' hazard class or division number. In addition-- (i) The 

words "Class" or "Division" may be included preceding the primar)' and 

subsidiaiy hazard class or division numbers, (ii) The liazard class need not be 

included for the entry "Combustible liquid, n.o.s." (iii) For domestic 

shipments, primaiy and subsidiai*}' hazard class or division names may be 

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

basic description. 
f. Section 172.202(a)(4). which states that die shipping description 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-reaciive substances; 

balteries 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 from this requirement. The packing group may be 

preceded by the letters "PG" for example "PG II". 

g. 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 ol" radioactive material 

must be shown by activity. The following provisions also apply: (i) For empty 

uneieaned 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 must be shown. Wlicre the kits contain only liquids, or solids and 

liquids, 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 (2.2 pounds); (iii) For dangerous 
goods in machineiy or apparatus, the individual total quantities 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 must be shown; (v) For cylinders, total quantity 

may be indicated by the number of cylinders, for example," 10 cylinders;" (vi) 

For items where "No Limit" is shown in Column (9A) or (9B) of the § 

172.101 table, the quantity shown must be the net mass or volume of the 

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 states that the shipping description of a 

hazardous materia! on the shipping paper must include the number and type 

of packages must be indicated, 'fhe type of packages must be indicated by 

description of the package (for example, "12 drums"). Indication of the 

packaging specification number ("IHl") may be included in the description 

of the package (for example, "12 IHl drums" or "12 drums (UN lAl)"). 

Abbreviations may be used for indicating packaging types (for example, 

"cyl," for "cylinder") provided the abbreviations arc commonly accepted and 

reeoiinizable. 
i. Section 172.203(0, \vhich states that when a package containing a hazardous 

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

transportation aboard passenger-canning aircraft, the words "Cargo aircraft 

only" must be entered after the basic description. 

j . 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 for 

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 

eertillcation contained in paragraph (a)(1) of this section or the certilleation 

(declaration) containing the language contained in paragraph (a)(2) of this 

section. 

k. Section 172.204(c)(1), which states that certilleation containing the following 

. language may be used in place of the certification required by 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 cauiage 

by air according to applicable national govemmcnla) regu)alions. 

i. Section i 72.204(c)(2), which states that each person who offers a hazardous 

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 172.204(c)(3), which states that effective October 1, 2006, each 

person who offers a hazardous material for transportation by air must add to 

the certification required in this section the following statenient:'T declare 

that all of the applicable air transport requirements have been met." (i) Each 

person who offers any package or overpack of hazardous materials for 

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 otherwise in.a 

condition lor tran.sport as required by this subehaptcr; (C) The articles or 

substances are packaged in accordance with all the applicable air transport 

requirements, including appropriate types of packaging that conform to the 

packing requirements and the "A" Special Provisions in §172.102; inner 
packaging and maximum quantity per package limits; the compatibilit)' 

requirements (see, for example, §173.24 of this subchapter); and requirements 

for closure for both iiijier and outer paekagings, absorbent materials, and 

pressure dilTercntial in §173.27 of this subchapter. Other requirements may 

also apply. For example, single paekagings may be prohibited, inner 

packaging may need to be packed in intermediate paekagings, and certain 

materials may be required to be transported in paekagings 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 

transport vehicle containing the hazardous material in the manner required by 

this subpart. 

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

subchapter, each person who offers a hazardous material for transportation in 

a non-bulk packaging must mark the package with the proper shipping name 

and identification number (preceded by "UN" or "NA," as appropriate) for the 

material as shown in the §172.101 Table. Identification numbers are not 

required on paekagings that contain only ORM-D materials or limited 
quantities, as dellned in §171.8 of this subchapter, except for limited 

quantities marked in accordance with the marking requirements in §172.315. 

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

each non-bulk combination package having inner paekagings containing 

liquid hazardous materials, single packaging lilted with vents, or open 

en'ogenic recepiacic 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 l)ic aiTOws 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 of the 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 w)io oJ')ers for ininsportation or transports a hazardous material tn 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 subpart. (J) 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 ni3 (640 cubic feet), unless placarded in accordance with 

subpart F of this part; (3) A portable tank of less than 3785 L (1000 gallons) 

capacity, unless placarded in accordance with 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 overpack, 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. 

r. Section 172.600(a)- which states 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 

facilities where hazardous materials are 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-liour emergency response 

telephone number (ijic)uding the area code or inlemational access code) lor 

use in the event of an emergency involving the hazardous material. The 

12 
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 of the hazardous material 

being shipped and has comprehensive emergency response and incident 

mitigation infoniiation for that material, or has immediate access to a person 

who possesses such knowledge and infortiiation and (3) Entered on a 

shipping paper, as follows: (i) Imniediatcly 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, 'fhis provision may be used 

only if the telephone number applies to each hazardous material entered on 

the shipping paper, and ii' it is indicated that the telephone number is for 

emergency response infortiiation (for example: EMERGENCY 

CONTACT:^-=*=^). 

I. Section 172.702(a), which states thai a hazinat 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 faniiliarit}' 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. 

V. Section I72.704(a)(2)(i), which states that, except as othenvise 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 arc specifically applicable to the 

functions the employee perfonns. 

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

safety training concerning (i) Emergency response infoniiation required by 

subpart G of part 172; (ii) Measures to protect the employee from the hazards 

associated with hazardous materials to whicli they may be exposed in the 

work place, including specific measures the hazmat employer has 

implemented to protect employees from exposure; and (iii) Methods and 

procedures for avoiding accidents, such as the proper procedures for handling 

packages conlaininu hazardous materials. 

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

specifies that a liquid hazardous niaterial be packaged under this section, only 

non-bulk paekagings prescribed in this section may be used for its 

transportation. Each packaging must confomi to tlie general packaging 

requirements of subpart B of pat1 173 to the requirements of Part 178 of this 

subchapter at the Packing Group I or II perfoniiancc level (unless othei-wise 

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 (hat, each package used for the shipment 

of hazardous materials under this subchapter shall be designed, constructed, 

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

normally incident to transportation, except as othenvise provided in this 

subchapter, there will be no identifiable (without the use of insiiuments) 

release of hazardous material to the environment. 

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

designed and closed that under conditions (including the effects of 

temperature, pressure and vibration) nonnally incident to transportation 

except as provided in paragraph (g) of this section, there is no identi/labic 

15 
release of hazardous materials to the environment from the opening to which 

the closure is applied. 

IV 

1. Pursuant to 49 U.S.C. §5123(a) of Chapter 51, Title 49 of the United States Code of 

Transportation, 49 U.S.C.§5123 Respondent is liable for a civil penalty of not less 

than $250 ($450 for training violations), nor greater than $50,000 ($100,000 if 

death, serious illness, severe injury, or substantial property damage results), for 

each of the violations alleged. 

2. Under the facts and circumstances of this case, a civil penalty of $73,500 is 

appropriate. 

WI-IEREFORE, the FAA, by counsel, respectfully requests that the Administrative 

Law Judge enter an order that Rcspondcjit be assessed a civil penalty in llie amount of 

$73,500. 

Respectfully submitted, 

Alfred R. Johnson, Jr. 

Regional Counsel 

By: jPUt-^^^L^ ( ^ 

Jeanine C. Gotimer 

ttomey 
Federal Aviation Administration 

I Aviation Plaza 

Jamaica, NY 11434 

718 553-3272 

718 995-5699 

NOTE: 

The Rules of Practice for this proceeding are set forth in Part 13, Subpart G, of 

the Federal Aviation Regulations (14 C.F.R. Part 13). 

The Rules of Practice provide that Respondent must file a written answer to 

this Complaint, or a written Motion to Dismiss if appropriate, not later than 30 days 

after the date shown on the Certificate of Service. A general denial is deemed a 

fnilure to file an answer (Section 13.209(e)). 

17 
U.S. DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

OFFICE OF HEARINGS ^^^ 1I'20I 1 

WASHINGTON. D.C. HEARJWG DOCKET 

In the Matter of lv\' Enterprises, Inc. 

20!0SO700376 

Judse Not Assigned 

NOTICE OF APPEARANCE 

Complainant, Federal Aviation Administration, hereby notifies the United States 

Department of fransportation. Office of Hearings, and the Respondent, pursuant to 14 

C.F.R. §13.204(b),that it shall be represented in the above-stated action by the following 

attorney: 

Jeanine C. Gotimer 

Federal Aviation Administration 

OfUce of Regional Counsel 

1 Aviation Plaza 

Jamaica, NY 1 1434 

Telephone: 718 553-3272 

Facsimile: 718 995-5699 

All communications, notices, pleadings or documents are respectfully requested to be 

forwarded as follows: 

Jeanine C. Gotimer 

Federal Aviation Administration 

Office of Regional Counsel 

I Aviation Plaza 
Jamaica, NY 

Telephone; 

Facsimile: 

1434 

718 553-3272 

718 995-5699 

Respectfully submitted, 

Alfred R. Johnson, Jr. 

Reoional Counsel 

By: JMM^ U 4 ^ Dated: "^^/ A 

Jeanine C. Gotimer / 

CERTlFICA'fE OF SERVICE 

1 hereby certify that on this day copies of the foregoing Notice of Appearance were placed 

in the United States mail, postage prepaid. Certified Mail - Return Receipt ficqucsted 

addressed as follows: 

Alexander G. Batenian, Jr. Esq. 

Ruskin Moseou Fallischek P.C. 

1425 Re.xCorp Plaza 

East Tower - 15th Floor 

Uniondale, NY 11556 

Federal Aviation Administration (Original and one copy) 

800 Independence Avenue, S.W. 

Washington, D.C. 20591 

Attn: Hearing L^icket Clerk, AGC-430 

Wilbur Wriaht Buildina- Room 2014 

Date: 

L\]\\ 1 R. 

Marianna Percro 

Paralegal Specialist 

Federal Aviation Administration 

Office of Regional Counsel 

I Aviation Plaza 

Jamaica. NY 11434