07/02/2012 15:43 

Date: 

To: 

8132735093 GRAYROBINSON PA 

FAX TRANSMISSION 

GRAYIROBINSON 

ATTORNEYS AT LAW 

July 2, 2012 

201 N.FRANKLIN STREET, SUITE2200 

Posr OFI'ICE Box 3324 

TAMPA, FL 33602 

PHONE: 813-273-5000 

FAX: 813-273-5145 

Client-Matter Number: 372607-20 

Fax: No.: 

Stephanie McClain, Hearing Docket 

Clerk 

(202) 493-5142 

Phone No.: 

(202) 385-8229 

Federal Aviation Administration 

From: 

Subject: 

Charles Fletcher Phone: 

Braille Battery, In.c. 

Response, Request for Hearing and Request for Extension of Time 

Notice of Proposed Civil Penalty (HM) 

Case No. 201180700298 

Number of Pages with Cover Page: 8 

M.essage: 

PAGE 01/08 

Pursuant to your conversation. with my assistant, attached please find a copy my letter dated 

June 29, 2012 to Gerald A. Ellis, together with the Election of Rights on behalf of Braille 

Battery, Inc. 

These materials we sent to you via FedEx on Friday but were inadvertently sent to an incorrect 

address. You should be receiving the FedEx package this aftemoon or tom.onow morning. 

Please contact me wlth any questions. 

This facsimile message contains legally privileged and confidential information intended only for the individual or 

entity named above. lfthe reader of this message is not the intended recipient, or the agent responsible to deliver it 

to the intended recipient, you are hereby notified that any review, dissemination, distribution or copying of this 

commu.nication is prohibited. If this communication was received in error, please immediately notify us by 

telephone and return tbe original message to us at the address above via the U.s. Postal service. Thank you. 

lfo' YOU DO NOT RECEIVE ALL OF THI'; PAGES, PLEASE CALL 

LINDA WOOLARD AT (813) 273·5235 AS SOON AS POSSIBLE. 
07/02/2012 15:43 8132735093 

GRAYjROBINSON 

ATTORNEYS AT LAW 

Cl1arlcs Fletcher 

813·213-5]5] 

Cf.r.ARLES.FLETCimlt.(liJGRA Y-RoBrnsoN.coM 

VIA FACSIMILE (404) 305-5223 

AND U.S. EXPRESS MAlL 

Gerald A Ellis, Esq. 

Office o:fthe Regional Counsel 

Federal Aviation Administration 

P.O. Box 20636 

Atlanta, GA 30320 

Re: Braille Battery, Inc. 

GRAYRDBINSDN PA 

June 29,2012 

sun-. 2200 

201 N. F•ANKUN STRooT (33602) 

P.O. Box 33?.4 

TAMI?'A, FLORIDA 33601~3324 

m. S \3-?.73-5000 

FAX 813-273-514-5 

Response, Request for Hearing and Request for Extension, IJf Time 

N~Jtice of Proposed Civil Penalty (.HM) 

Case No. 201180700298 

Dear Mr. Ellis: 

PAGE 02/08 

FOR'!' l..AUDE.RDAI.l! 

jACKSONV/1./.P. 

Kcr W8sr 

LAKliLA.ND 

MJ;t.lJOUP.NE 

MIAMI 

NA?J.ES 

ORJ.ANVO 

TALUNA.t:SEB 

TAMPA 

Our firm rep1;eseu.ts Braille Battery, Inc. in connection with the above-referen.ce matter. We a:r:e 

in receipt of the Notice of Proposed Civil Penalty dated May 29, 2012 and received by Braille 

Battery on May 31, 2012 (the "Notice"). My client has elected to request a hearing and seek a 

consultation with yourself or other appxopriate officials in the FAA Regional Office. Please find 

attached the Electio~:~ of Rights. 

Braille Battery would prefer to work cooperatively with FAA to resolve this matter without 1be 

time and expense of litigation, and in this light has requested consultation, in addition to 

protecting its rights by timely requesting a hearing under 14 C.F.R. § 13.16 and Pact 13 Subpart 

G. 

We believe the Notice is premised on incorrect and incomplete information that is material to 

whether there has, in fact, been any violation of the U.S. Department of Transportation 

("USDOT") Hazardous Materials Rules ("HMR"), whether it is apwopriate for the Federal 

Aviation Administration (the "FAA") to seek civil penaltl.es at this time, and the magnitude of a 

civil penalty, should any civil penalty be appropriate. 

As I arn sure you. are aware, the application of the USDOT HMR can be very complicated and it 

is not uncommon for the regulated oonununit:ies, regulators, and ev~;:n FAA administrative law 

judges to misapply these rules due to their complexity and the changJ;og products in the 

marketplace as technology progresses, For example, in a civil penalty appeal the FAA 

Administrator fal.llld that the civil penalties were imposed based on the mistaken belief that a 

www.gray"robinson. ~om 
07/02/2012 15:43 8132735093 

CRA YROBINSON 

PROI'F.iGSfONAl~ ASSOCIATION 

Gerald A. Ellis, Esq. 

June 29, 2012 

Page2 

GRAYRDBINSON PA PAGE 03/08 

regulated prodoct was banned from b:ansport on passenger aircraft, when in fact it was only 

banned i.n certain fonns. See h• the Matter ojVillamor Tabul.a, FDMS No. FAA-2008-0883. 

The Notice in this case is based on a similar misapplication of the USDOT HMR. 

Braille Battery is providing the most complete information it has been able to assemble withj.u 

the time available to respond to the Notice. We reqllest an extension. of time of an additional 

30 days to supplement the materials provided herein. · · 

Braille Battery disputes each alleged violation and the associated proposed penalties set forth in 

the Notice on the following grounds: 

J. Alleged violation is already subject to USDOT enforcement and has been resolved 

Please note that that Br.sille Battery has already been subject to eJJforcement by USDOT on this 

shipment and issu<:: under the USDOT :HMR. Specifically, USDOT has already sought and 

assessed negotiated penalties pursuant to 49 U.S.C. §5123(a) and 49 C.F.R. Chapter 172 for 

transport o£ a battery via Fec!Ex intended for lv.fr. Richa(d Purcell in Wadsworth; Ohio on March 

8,, 2012. See Pipeline and Hazardous Materials Safety Administration ("PHMSA") September 1, 

2011 Notice of Probable ViolatiQJ:l, Case No. 11-0095-BAT-SO, Addendum A, Speci.lic 

Allegations G.3.iii. at page 4 of7, a copy of which is attached. 

The penalties assessed were, in part, the rcsnlt of a report by FAA employee Mark Gentile 

regarding the March 8, 2011 shipment, the subsequent inspection on Apri112, 2011 of the Braille 

Battery Sarasota facility by USDOT official.s, and th.e PHMSA Notice of Probable Violation. 

All of these issues were addressed and resolved in the Compromise Agreement entered into 

betweim Braille Battery aud PMSHA. See attached Compromise Order, P.HMSA Case No. 11-

0095-BAT-SO. 

The penalties paid under this Compromise Agreement were for exactly the same event an.d as 

such the US DOT does not have the authority to seek additional penalties for these alleged 

violations ofUSDOT Hazardous Materials Regulations. 

IfF AA insists on seeking additional fines on this matter we request an. opportunity to discuss this 

with you directly via telephone or in person. In addition, we provide the following information 

for FAA's cons~deration, without conceding or otherwise accepting the validity of FAA's Notice 

or proposed civil penalties. Braille Battery reserves all n.ghts in thi.s regard. 
07/02/2012 15:43 8132735093 

GRAYROBINSONC 

PROFESSIONAL ASSot:!AT!ON 

Gerald A. Ellis, Esq. 

]Ul).e 29, 2012 

Page3 

GRAYROBINSON PA 

,2. Notice of Proposed Civil Pe11alty misstates material facts 

PAGE 04/08 

A critical misstatement in the Notice is the incorrect identification of the type of. battery 

presented for shipment by Braille Battery on March 8, 2011. Braille Battery sought to ship a 

"lithiu,m,ion" battery not a "lithiwn'' battery. This i.s a substantial and materi.almisstatement. 

Subsequent allegations in the Notice stem. from the mistaken beli.efthat the battery at issue is a 

"lithium" battery. This dif.ferentiation is apparent from the product name: "Micro-Lite LithiumIon Battery." 

The Notice incorrectly identi£.es the battery presented for shipment as a "primary 

(nonrcchargeable) lithium battery or cell." This also a misstatement of a material fact. The 

battery presented for shipment was a scco!ldary (rechargeable) battery. 

These differentiations are important because HMR 49 C.F.R. § 172.102 special provisionAl 00 

expressly provides: "Secondary (~:echargeable) lithium batteries and cells are authorized aboard 

passenger carrying aircraft in packages that do not exceed a gross weight of 5 kg." The litbiumimJ. battery presented for shipment was under 3 kg. 

3. Proposed peualty exceeds statutory authority and does n.ot co1~sider all required factors 

As your notice states, 49 U.S. C. §5123(a) limits penalties to not greater than $55,000 peJ: 

violation. You have proposed a cjvj.J. penalty in the amount of $78,000, well above the statutory 

limit authorized in the U.S. Transportation Code for a HMR vlolati.on. No matrix, methodology, 

or other information is provided to articulate the a1.1thority or factual basis under which FAA is 

seeking either multiple or supplemental penalties. The Notice and our information indicate that 

there was no property damage or injury of any sort associated with the alleged violation. In fact, 

the battery at issue was not, in fact, transported as air freight, the packaging remained intact at all 

times and there is no indication that any material risk was ever posed to any person or any 

property. 

Under 14 C.F.R §13.J.6(c) FAA is required to consider: 

(1) The natrrre, circumstances, extent, and gravity of the violation; 

(2) With respect to the violator, the degree of culpability, any history of prior violations, 

the ability to pay, and any effect on the ability to continue to do business; and 

(3) Such other matters as justice may require. 

Tn the instant case, there was a single alleged action that is being cited by FAA. Each violation 

alleged was th.e result of a single allegedly mislabeled box; presented to FedEx in accordance 

with Fed.E:x:'s published requirements for shipping. In fact, Braille Batte.ry followed precisely tho 

published FedEx standards applicable for the battery at issue. Moreover, Braille Battery 
07/02/2012 15:43 8132735093 

GRAY ROBINSON 

PROFESSIONAL ASSOCIATION 

Gerald A. Ellis, Esq. 

June 29, 2012 

:Page 4 

GRAYRDBINSDN PA PAGE 05/08 

believed they had complied with the applicable hazardous materials shipping requirements under 

USDOT HRM rules and guidelines. 

Bra.ille Battery does not have atiy enforcement or compliance history vv'ith FAA.. As such Braille 

Battery should be treated first time violator under 14 C.F.R_ §l3.16(c). 

Moreover, the fine is excessive conside,ing the gravity of the violation and any alleged 

culpability by Braille Battery. Other published decisions regarding alleged mislabeling of 

hazardous materials for a.ir transport have resulted in civil penalties from $3,750 to $50,000. 

One of these cases was for transport of79 drums of hazardous materials. The comparison of79 

drums of hazardous materials to a single 3 kg battery product is obvious. A proposed penalty of 

$78,000 is simply not proportionate to the alleged violation. In another case when the FAA 

Administrator. determined. that the product was not, in fact, completely bann<:>d. from passElllger 

a,ircrafts, the civil penalty was reduced dramatically. See In the Matter ofVillamor Tabula, 

FDMS No. FAA-2008-0883. As indicated above, the Notice is based on the mistaken bel.iefthat 

the battery at issue is banned fi;om passenger aircrafts. 

If any violation ofHMR occurred it was not due to a lack of effort or interest in complying with 

HMR Braille Battery has invested significant resources to ensure that its products ~ shipped 

safely, and any violation would be due to an ambiguity as to the appropriate classification ofits 

products, efforts to meet both domestic and international regulations, an.d/or efforts to comply 

wJ.th the shipping requirement oftb.e carrier FedEx. The lack ofintent of the respondents in civil 

penalty cases have been cited by ALJs a:n.d the FAA Administrator as a basis for reducing 

penalties based lack of significant culpability. Said another way, when the evidence indicates the 

respondent did not-intentionally violate the HMR, the civil penalty should be significantly 

reduced. 

Also of importance is that Bra.ille Battery has engaged in significant corrective action after the 

Aplil IZ, 2012 USDOT inspection referenced above. Braille Battery worked with PHMSA to 

correct all of the indentif1ed deficiencies. Bra.ille Battery has an ongoing effort to ensure 

continued compliance with the HM::R and all requirements of connnercial can:l.ers such as FedEx. 

Braille Battery can provide additional evidence of this corrective action if granted the requested 

30-day extension oftime to supplement this response. 

Finally, the proposed penalty of$78,000 will adversely impact the ability of Braille Battery to 

continue to do business. Attached is Braille Battery's Balance Sheet from the first quarter of 

2012. Bra.ille Battery can provide additional evidence of its financial condition ifgrauted the 

requ.ested 30-day extension of time to supplement this response. As you will be able to discern 

J}om the balance sheet, Braille Battery does not have the ability to pay a penalty of $78,000 and 

meet its financial obligations n..ecessary to continue as on ongoing business conce:m. Please note 
07/02/2012 15:43 8132735093 

GnAYROJl!NSON 

PROFESSIONAl. ASSOCIATION 

Gerald A. Ellis, Esq. 

June 29, 2012 

Page 5 

GRAYROBINSON PA PAGE 05/08 

that all provided fln.ancial inform~ttion is confidential business information and not subJect 

to public disc.losure under the Freedom of Information Act. ' 

4. Proposed Notice of Civil Penalty does not provide legally suffiCient .notice 

The proposed Notice of Civil Penalty simply states that a penalty of $78,000 i.s proposed. There 

is no explanation. of how that number was calculated, how that proposed penalty is justified or 

apportioned between the alleged HMR standards );e[erenced in the Notice, or what statutory or 

other factors we,e considered when calculating the proposed civil penalty. Without more 

specific information regarding the method of c:;tlculation or assessment of the penalties consistent 

with the HazliLrdous Materials Trlll;lsport Act, 14 C.F.R. §13.16(c), or other USDOT rules or 

applicable gui.dmcc documents, we are unable to evaluate the proposed civil penalty or make 

any meaningful counteroffer at this time. We request an extension qf time to malte a 

counteroffer for at least 30 days, lll;ld until such time as FAA makes this infonnation available to 

Braille Battery. 

I look foxward. to discussing this matter with your further. Please contact m.e at your earliest 

availability to discuss resolution of this matter. 

CF/Imw 

Attachments: 

Sincerely, 

Charles Fletcher 

1. Election of Rights on behalf of Braille Battery (via facsimile and U.S. Express Mail) 

2. Notice of Proposed. Civil Penalty dated May 29, 2012 (via U.S. Express Mail) 

3. PHMSA Notice of Probable Violation dated September 1, 2011 (via U.S. Express Mail) 

4. Compromise Order, PHMSA Case No. 11-0095-BAT-SO (via U.S. Express Mail) 

5. Braille Battery Balance Sheet (via U.S. Exp,ess Mail) 

cc: FAA Hearing Docket (w/ :;ttlachments) (via FedEx) 

#3261341 vj 
B7/B2/2B12 15:43 8132735093 GRAYROBINSON PA 

Pml'hl\TMBNl' or TRAliS~Olt'l'I\TIO~· 

FEDI'!!V,T, JWI;>.T~ON ADM!IIISTRilTION 

ATLP.I'l'l'A, GJ;:ORGTA 

Of.:l;ice- o-f ti1e R.e g~.onal. Counsel 

Federal A'ttiati.on Adm.i.nisttatiol! 

P r 0.~ Eo-~ 2Q·6~!S 

l'.tlant~, 81\ .30320 

r .. te.,hone; 

Fac.sind.l": 

(4041 305-5200 

{404) 305-5223 

011n,; June 28, 2012 

PAGE B7/BS 

.Iu ::CeJ?lY to your l\lo~ice o·f P..rop:o.sed C.1.viJ. l?enaltYr ,T. ele.ct to pt'o·ce-~d .;;;,..$ 

.ind.i.cated by my clieok ma"Jc beside ttlc n.u:uber"d )oo~aqr.,ph(a) be.low: 

l. [ ] J: h~l:-.,b;l' submit the amol.lnt of t~"' proposed aiv.l.l p"n.~;u:y wJ.th t..he 

underst.andlllg: tha.t an o-..r.de.r ae:se;ssi.Ilg a c·iV'iJ.. pQ.tHtlty w:t11 be .i$st1ed in. t:ha.t 

amount .rithout :Ellrtl'>eT. noti~e. I OND.t:RST..!<I'ID TH'AT I !1.!\VE Wll.l:VED ~·l?.J:C:lH:!r TQ 1>, 

I~tt;l£1, 

2. t J :r. have pa.id tha: p;r.opm::led civJ.l pE!n4lt:Y· with ~ cred:i.t oartJ. ove.t" the: 

Intazne·t at t:J·~e fo~lowd . .ng: 1-1\ili:::J.:i..ten http~l,/www.pay .. gov. 

J: unde:;rs:t.and th~t an o.:cder assessin-g .a c..:J~v:U pen.alty wiJ.l be: l.&.s1usd in. the. 

amount t;Hhout. fu.rth'"' n.otice. I m:.so. Olml"!<STANil ~'ll>T ); >!M. Wli."CV'mo: MY <>WET 

TO A llEAAlNG, 

3. f.xl· ! hereby submit e.v-ictence. ond information, demo~.stra:tinq l:hat a v:i,olatio.n: Of th~ :r,egulati.ons did not occU!: a.s a .. llt::!g¢d. or that Uta ~l11.ount of 

tha pE!.n;;:~,.t ty .is nut: Y,a:t~anted. by tba cire:um,s.f:ance:~ ~ 1. tmbgRSl'J&ND ~HAT CROOSJ;;NG 

THIS OZ1'PJ:WT W:tl:.L !.<[0:>! l\.li'lrJ;)CT w.t RIG~ <W 1\ BEAB,J;NG, · 

1. (XJ I he:t.7eby submit J~n.fo,rm;r.d:ion ~.r1d :rec::o.:r:ds shol1'ing that I am 

£inanda.U~y unable to pay the propo<e.d ci1til """'"l.ty, OJ:' that paym<>n1: of !:he 

pena1ty Watlld P:t'I'JV~nt m~ frQln. aontin'l1it'J.g in businesF.( ~ :r. TJNDJtR.-STA-.1>1:0' 'I!liz.I..'J! 

CHOOSXN!l' !!!!!IS OFl'ION Wl:LL l:!O!l' :/U;'lflllGT' l-!Y ll.:CGH!ll <rQ A HEAAil'l<a. 

5. [ ) . ! he.teby >;e9uest tha.~ tll" ):)J;"opo~~d civi;L pena.lty b" assesSed j,n 

t:ll;. a&ottnt: of $ and I ·•'ubmit the raMons far. the r.edu<::ticn af 

th.:t p:ropo$ecl 'ltn~ttnt, 1\:!:1:" :!1l;:QUES~ GON'S):'l'ro!!:ES W. A~N~ X!lli!I' :ur !NilS ()~R 

XS l\CCJilB!rED Ill:( !t'!IE;. J?i!J1. 1 AN OJWER l'>SS'ElSSnl'G CIVII,. P>lNl\L!!:X: IN !!:l'll!: ll!>ml!NT ;!; lll\YJJ: 

S,eECI':IrtlliO MAY B)l: ISSD;lill.l· w,I:!l!I:(()O'!l! ~ll:!;R l)!O!I'X9E !).~ I WAI.\I);J l>lr llc!GllT :J:O. A 

am~. :rF ~fY OFJl'liU< Ill N"aT ACCHlli"l'ED, :t tnmERS.TAl:m· m nrGll'l! :r!o A !Jl;;iiRJ:IlG m~.r. 

liiO!l! m: .<~Jl'EE<JTEI>. 
07/02/2012 15:43 

6.. a. informaJ~ 

below. :t: 

HEAI<ING. 

8132735093 GRAYRDBINSON PA PAGE 08/08 

[XJ I ht3;ce.by requ~:!lt to discuss th.:i.s ltla:tter ip per~m~ at f.l):l 

qOhf.erenc:e w~.th an att.c:c:ney f.:LOJ:tt yo·Ur o.ffide at the J,ocattort chet:.ked 

ONDE:ru;= Tl!A:E csoos= :E!US OPTTOJ<r WU,t. l<O!l! JI,J;'nlCT MY IUGBT !1'0 A 

Check one: 

[ J O;f;"fice of: the. HGgianal Co\J.nsel in Atlanta. Geor~j-a 

[XJ !flight Standard" Dist.d.ct Oftl.ce in Tampi!, Flouda 

(Sc"' Atta.che·d r.i~t of a·soo Offices.) ( 1 Of:Eiue o£ the lteg;i.onal Counsel :l.n 

(See Attached List of R$g:l.ooal Offi"c--,e"'s,--.'"") 

b~ [ ) 't hereby :t"e~uest ill te:teLJhon:t.o :i.nfonaal confe.r~nce. P.H:tase 

cal-1 rna at th'C' mJr.'tbeX' listed b.t->J.ow t:o ma .. kE!- a.:r.r.en.qements .fo.r the c.o-nf~r.en~e-

____ . ____ ., ___ T'~Le-phon.e numbe:t" to call :for- c:onfer.-eo.ce 

., • [Xl ! her~by reqUest "- hearing in accord"oqe witJ1 s,_,l,.,art G of P.art l3 

of !:!"<" Federal Av!.ation T<egulatiotl• IH C.l!'.ll.. 131 Subpart G) with the 

Un.d:$,stendin<J tb"t. o. Compl.<dnt will b., filed. I reqoeot that the lJsaring: be 

haJ.d: !.n· ...J:ampa, Florida . ;t am sencliDg thi,; >:-equ.6~t both to. tha F.AA 

~·tto.rneY ;.ind tit! the Ha.arin9 Docket,. F.ed~rr;:~·J. A'i.t'iat.i.on A.cirrt.tnistr.a.i:::ian,. a·oo 

!rld.ependence A_,n:~nt~er St.V. r R.ooro 92.<.1.1\.r ~a.6l:J..:ing~.o1l.r OC, 2059.1.r. A'tte·ntion ~ He~A;-,in.g 

l:locke t Cler·k. 

Signatttre: 

Braille Battery, Inc. 

6935 ).5th Street East, Suite \ l5 

Sa~;asota, PL 34243 

941·312-5047 

Charles R- Fletcher, Esq. clo GrayRobinson, P .A. 

201 N. fumklin Street, Suite 2200 

Tampa, PL 33602