SERVED MARCH 29, 2011 '•r-;TMENTOF 

2:5 1 

UNITED STATES DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D. C. 

FEDERAL AVIATION ADMINISTRATION, 

Complainant, 

V. 

FEDERAL EXPRESS, INC., 

Respondent. 

FAA DOCKET No. CP09NM0010 

(Civil Penalty Action) 

DMS No. FAA-2009-0721 

INITIAL DECISION 

OF ADMINISTRATIVE LAW JUDGE RICHARD C. GOODWIN 

Found: 1) Respondent violated 49 C.F.R. §§175.3, and §175.30(a)(2) and 

175.30(a)(3) as charged; 

2) Respondent is hereby assessed a civil penalty of $30,000. 

I. Background 

Complainant, Federal Aviation Administration, ("Complainant," "FAA," or "the 

agency") alleges that on or about August 22, 2007, agents of Respondent, Federal 

Express, Inc., ("Respondent" or "Federal Express"), a Part 121 air carrier, accepted 

and transported by air certain hazardous materials in violation of requirements of the 

Department's Hazardous Materials Regulations ("HMRs"), 49 CFR §§171-178. 

Federal Express is responsible, according to the charges, for accepting and shipping 

in air transportation two boxes of a certain sanitizing gel. The boxes each contained 

incorrect markings, the agency asserts, and lacked mandatory shipping papers. 

In its Complaint, as amended, of July 17, 2009, the agency charged Federal 

Express with violating 49 C.F.R. §§175.3, 175.30(a)(2) and 175.30(a)(3). Section 

175.3 prohibits a hazardous material ("hazmat") that has not been properly prepared 

for shipment to be offered, accepted, or transported in air transportation. Section 

175.30(a)(2) does not allow a hazardous material to be accepted for air 

transportation unless the aircraft operator ensures that the hazmat is described on a 
shipping paper in accordance with HMR requirements. Finally, §175.30(a)(3) 

prohibits the acceptance of hazmats in air transportation unless the aircraft operator 

ensures that such materials have been marked and labeled as required. Pursuant to 

49 U.S.C. §5123(a)(1), the agency asks for a total civil penalty of $37,500. 

Respondent acknowledged the facts underlying the charges. In its defense, it 

attempted to minimize or shift its responsibility. It also took issue with the proposed 

penalty. Federal Express argues that the amount the FAA suggests is higher than is 

warranted by the nature and extent of the infractions, particularly when the mistakes 

are weighed against the scope of the carrier's operations. Respondent concludes 

that the proposed penalty is "excessive" and should be "substantially reduced" (PostHearing Brief of Respondent, p. 14). 

A hearing was held on October 25, 2010, in Portland, OR. I determined that 

a wriften decision was reasonable and appropriate under the circumstances. The 

parties have each filed opening briefs, and Complainant, which has the burden of 

proof, has also filed a rebuttal brief.^ 

i find and conclude that Complainant proved the violations alleged. I further 

hold that the facts and circumstances of this case warrant an assessment against 

Respondent of $30,000. 

II. Discussion and Findings 

As stated above, the facts underlying Complainant's charges were not 

disputed. Respondent acknowledged that it accepted and placed in air 

transportation a shipment of two boxes of ha2iardous materials which were deficient 

under the HMRs in two respects: the packages each lacked an "ORM-D Air" marking 

typically necessary in these circumstances? and neither box was accompanied by a 

shipper's declaration (Tr. 134-35,170). These facts, I find, make out the violations 

charged. 

The testimony of FAA special agent Donald Stiger, which I found credible, 

proved the violations in any event. Agent S|i0W testified that on August 22, 2007, he 

and another agent were observing off-loading <;^rations in Medford, OR during a 

ramp inspection of Empire Airlines. The agents determined that Federal Express 

had tendered and shipped two fiber^oard boxes which were marked on both sides 

"Consumer Commodity ORM-D." ("ORM" i$ an «^Jthprjzed marking abbreviation 

standing for "other regulated material." 49 C.F.R. §172.308(b); Tr. 145-46). Neither 

box had the markings required for this shipment. Nor was either package 

accompanied by hazardous materials shipping papers. A Federal Express official at 

' Complainant's Brief will be designated as "Compl. Bi".", the Post-Hearing Brief of Respondent as "Resp. 

Br.", and Complainant's Rebuttal Brief as "Compl. Rebut." 
the Medford airport opened the boxes. Each contained one case (twenty-four 

bottles) of 354-milliliter plastic bottles of Nexium Hand Sanitizing Gel ("Gel").^ 

The Gel had begun its journey in Baltimore. It had traveled to Respondent's 

Memphis hub and then was placed on a flight to Portland, OR. before the FAA 

agents observed the packages after the flight touched down in Medford. The 

packages had been destined for a customer of AstraZeneca Pharmaceuticals 

("AstraZeneca"), the original shipper, in Jacksonville, OR (Tr. 27-33, 46, 50-51, 77; 

Exhs. C-1, C-3, C-5). 

The Gel is described generically as an antibacterial hand gel. It is classified 

as a hazardous material on account of its alcohol content (Exh. C-6). The Gel's 

Material Safety Data Sheet indicates that it contains as much as 62% ethyl alcohol 

by volume (Exh. C-6). Its flashpoint is 74° Fahrenheit (23° Celsius). Agent Stiger 

testified that this item is properly classed as a Class 3 flammable liquid (Tr. 34, 71). 

It is formally categorized in the Hazardous Materials Table ("Table") as a Flammable 

Material in Packing Group III. Its UN identification number (which was lacking) is UN 

1170 (Tr. 52-53, 71; Exh. C-6; see Table following §172.101). 

Agent Stiger testified that an "ORM-D" marking on a box means that the 

material inside is hazardous (Tr. 29). As so marked, such goods are permitted to 

move by ground (Tr. 78). But the HMRs prohibit such packages to be flown aboard 

aircraft unless marked "ORM-D-Air" (Tr. 29, 64). These items had been, of course, 

travelling by air. Another deficiency agent Stiger noted is that a hazmat package 

marked ORM-D that is offered or intended for transportation by air must be 

accompanied by a shipping paper (49 C.F.R. §§172.200(a) and (b)). But there were 

no such papers (Tr. 64). In this situation, the pilot had been unaware that hazmats 

were on board his flight. Finally, agent Stiger noted that the bottles, which had 

screw-type caps, had not been securely held with a positive means of control as 

§173.27 of the HMRs requires.^ As such, this shipment could not have been 

reclassified as an ORM-D-Air shipment at all (Tr. 88-89). 

In view of the investigators' findings, the agency sent Federal Express a 

Letter of Investigation ("LOI") under date of August 27, 2007 (Exh. C-8; Tr. 56-57). 

The carrier answered that its employee responsible for loading the packages into the 

stream of air transportation "mistakenly did not notice" the ORM-D markings (Exh. C9). Senior safety manager Patrick Oppenheimer acknowledged in testimony that the 

ORM-D mark was a "red fl£ig." The errant mark should have alerted Federal 

Express to the possibility of "improperly offered" packages, he conceded (Tr. 130-

32). Respondent, then, failed in its duty to investigate - a duty which, if fulfilled, 

would have alerted it to the infractions. The agency additionally noted that the faulty 

^ Tr. 21-64; Exh. C-3. Federal Express suggested that the packages could be considered as one shipment, 

since they were consigned to the same customer. I do not agree. The packages were separate and had 

different tracking numbers. As such, they are properly considered to be two shipments. See Tr. 40, 93-94. 

^ Tr. 33; Exh. C-1, p. 1. 49 C.F.R. §173.27(d) states that "Stoppers, corks or other such friction-type 

closures must be held securely, tightly and effectively in place by positive means. Each screw-type closure 

on any packaging must be secured to prevent closure from loosening due to vibration or substantial change 

in temperature." 
i\^^;s^a3^tvitN^j-^-j-'._:i..-.,;ijvat,*iisbffi«L^ii!ti..^. 

marking which Respondent criticized as insufficiently prominent was adjacent to the 

bar code. The offending packages were scanned by Respondent acceptors at four 

locations - Baltimore, Memphis, Portland, OR, and Medford, OR. In these 

circumstances, Complainant contends. Respondent's personnel should have caught 

the mistake (Tr. 35, 40-41, 44-45). If Federal Express should have noticed the 

incorrect markings, then it possessed the constructive knowledge necessary for a 

finding of liability. Complainant adds (Compl. Br., p. 6). 

Against this background, I find that Respondent possessed the required 

constructive knowledge for a finding of HMR violations. 

In its defense. Federal Express stated that the original shipper, AstraZeneca, 

had not offered hazardous materials to it by air before. AstraZeneca had always 

offered such shipments by ground. As such, the carrier argued. Respondent's 

employees were not disposed to determine the nature of the packages' contents 

(see Resp. Br., p. 2). AstraZeneca additionally failed in its own duty to infonn 

Federal Express, either orally or in writing, that the shipment was a dangerousgoods ("DG") shipment." Mr. Oppenheimer testified that shippers "have a 

responsibility to notify us that they are shipping dangerous goods..." (Tr. 125). 

Finally, Respondent's answer to the LOI stressed that the ORM-D markings were 

"minimal" in size; they were visually insufficient to alert its personnel. The carrier 

added that it has been actively seeking regulatory changes (Exh. C-9; see also Tr. 

148-49). 

III. Penalty 

We now turn to the issue of civil penalty. 

A. Factors 

Determination of an appropriate civil penalty involves a number of factors. 

The decisionmaker must weigh "the nature, circumstances, extent, and gravity of the 

violation[s]," and, with respect to the violator, "the degree of culpability, any history of 

prior violations, [and] the ability to pay" as WQil as "other matters that justice requires" 

(49 U.S.C. §5123(c); see Tr. 62). The principal elements in this analysis are the 

nature of the respondent's conduct and the totality of the circumstances. 

Envirosolve, LLC, FAA Order No. 2006-2 (February 7, 2006), p. 13. 

The Administrator has provided policy guidance for agency employees to 

follow when recommending an appropriate oivlj penalty in hazardous-materials 

cases. They are contained in its published Penalty Guidelines ("the guidelines"). 

The guidelines, found in FAA Order 2150.3A, assess all relevant statutory criteria, 

including mitigating and aggravating circumstances. The guidelines further aid 

Complainant's penalty determination through a Sanction Guidance Matrix. The 

Matrix sets out specific penalty ranges for each input, cross-referencing such factors 

* The term "dangerous goods," as used in the International Civil Aviation Organization (ICAO) Technical 

Instructions, is interchangeable with the term "hazardous material," as defined in 49 C.F.R. §171.8. 
as the nature of the respondent (for example, whether it is a business which 

"regularly" offers hazmats) and the relative risk of harm posed by the goods involved. 

Complainant's sanction determination nevertheless does not reflect merely a fixed 

mathematical computation. The table is intended to indicate the Administrator's 

"general views" about the civil penalty ranges appropriate for different types of 

violations. Folsom's Air Service, Inc., FAA Order No. 2008-11 (November 6, 2008), 

2008 WL 4948488, p. 13. Nor are the guidelines binding. Each situation, being 

dependent on so many variables, is unique. "Evaluation of the case," the FAA has 

emphasized, "is based on the totality of the facts and circumstances."^ 

An administrative law judge ("ALJ") is not required to follow the guidelines. 

The guidelines are intended for agency personnel, and ALJs are not agency 

personnel. Folsom's, supra, p. 14. ALJs make decisions independently, and the 

ALJ determines (subject to agency review) whether a civil penalty is to be assessed, 

and if so, in what amount. The Guidelines nonetheless must be respected as an 

expression of agency sanction policy. They represent an effort to produce 

consistent results in similar cases. The Administrator has asserted the power to 

impose the agency's sanction policy on appeal if an ALJ assesses a civil penalty that 

is not consistent with the Guidelines. Warbelow's Air Ventures, Inc., FAA Order No. 

2000-3 (February 3, 2000), p. 20; Northwest Airlines, FAA Order No. 1990-37 

(November 7, 1990), pp. 8-10. 

Additional factors inform the determination of an appropriate civil penalty. Air 

carriers are held to a high duty of care. Indeed, they are obligated to perform their 

services with "the highest possible standard of care." See, e.g., Folsom's, supra, p. 

16. This degree of care devolves from carriers' responsibility to assure, to the 

maximum extent possible, the safety and well-being of their passengers, crew, and 

others involved in transportation by air. 

Hazardous materials require particular attention because they are dangerous 

by their very nature. The risk of harm must be kept to an absolute minimum in view 

of the possible grave consequences of error. Carriers of dangerous goods such as 

Federal Express are expected to conform to the highest standards of care and, 

concomitantly, must answer in appropriate measure if they fall short. 

B. Complainant's Position 

Complainant has asked for a levy of $37,500. It bears the burden of proving 

the appropriateness of this amount by a preponderance of the evidence. Phillips 

Building Supply, FAA Order No. 2000-20 (August 11, 2000), p. 8. 

' FAA Policy on Enforcement of the Hazardous Materials Regulations: Penalty Guidelines, 64 Fed.Reg. 

19443, 19444, 1999 WL 226610 (F.R.) (April 21, 1999), also published on April 14, 1999, as Change 26, 

Appendix 6, to FAA Order 2150.3A. FAA Order 2150.3A may be found at www.airweb.faa.gov and was 

submitted in pertinent part in this proceeding as Exhibit C-10. 

By Order 2150.3B, effective October 1,2007, the agency issued new sanction guidelines superseding the 

old. Since the actions involved in this matter occurred prior to the effective date, Order 2150.3A remains 

applicable. See 72 Fed.Reg. 55853 (October 1, 2007). 
Complainant argues that the substances involved in this case could have 

proven dangerous. The agency's penalty guidelines place this type of flammable 

liquid in packing group III in the medium-lri|k category of the penalty matrix, which is 

known as Category "B." Category B mateifiils are materials that "may not pose an 

immediate threat to the safety of a flight, histqsn cause death or injury to persons 

due to unintended releases in aircraft cabin areas, and potential damage to aircraft 

structures over a longer period of time,..." TTiey are given moderate weight for 

assessment purposes (64 Fed.Reg. 19443, 19449 (April 21, 1999); Exh. C-10, p. 7; 

Tr. 60-62). Respondent's marking and notification violations created a serious risk of 

peril, the agency says. The rules' prohibition of air carriage represents a 

determination that these products, as shipped, were too dangerous for air travel. 

The agency also determined for assessment purposes that Federal Express was in 

the category of the largest air carriers (as rrieasured by annual operating revenue), 

and therefore would be considered a "Orouip 1" carrier. Finally, Complainant 

accounted for a mitigafing factor: an entity dther than the violator prepared the 

shipment (Tr. 63, 67, 97-98; Exh. 10, p. 6). 

The agency also looked at Respondent's violation history. Between 2004 and 

2007, Federal Express was assessed civil penalties on five occasions and 

underwent eighteen administrative actions. The fines that the agency levied ranged 

from $3,000 to $12,000 (Exh. C-11; Tr. 64-66). 

The agency concludes that its proposed assessment of $37,500 is 

appropriate and reasonable, and even low. In .support of its conclusion, it stated that 

it considered for sanction purposes that each papkage Respondent tendered 

constituted one violation. Thus the FAA countiS^d just two violations in total ~ 

although it had proven three violations per package, or six altogether (Tr. 67-68). 

Additionally, in the end the agency did not factor in the carrier's violation history, 

although it might have (Tr. 69). It explained that its proposal was in the middle of 

the lowest and highest recommended sanation for two §175.30(a) violations. 

The range suggested by the Sanction Guidance Table for one §175.30(a) 

violation committed by a Group 1 carrier, such as Federal Express, is $5,000 to 

$27,500 (Exh. C-10, p. 6). The range for two violations, then, is $10,000 to $55,000. 

Assessing for a total of six violations produces a range of $30,000 to $165,000. The 

agency's proposed assessment of $37,500, it points out, is between either of those 

ranges.^ It argues that this amount easily CQI^IC^ have been greater. Taking all 

factors in consideration, including cQrrectlyf.i^ption undertaken by Respondient, 

Complainant asserts that $37,500 is an appfpj^ate assessment. A fine in 9 lesser 

amount would not constitute a sufficient deterrent to a carrier of Respondent's size, it 

contends (Compl. Br., p. 13). 

C. Respondent's Position 

In its defense. Respondent stressed that the number of violations was small 

when measured against the scope of its operation. Federal Express, by any 

* Tr. 67-69. Respondent's witness also stated that the agency's proposed penalty of $37,500 is exactly 

between $10,000 and $55,000. Tr. 69. This is incorrect. The midway point is $32,500. 
measure, is a large enterprise. It is a global business. Senior safety manager 

Patrick Oppenheimer testified that the carrier handles about 30,000 dangerousgoods packages every day (Tr. 115). 

Mr. Oppenheimer testified in detail about Respondent's dangerous-goods 

operation. It is an extensive infrastructure carefully attuned to the carrier's 

responsibilities as a major handler and transporter of such goods. The carrier places 

at least two dangerous-goods specialists at every acceptance location. Someone is 

on call 24 hours a day to answer hazmat questions and to respond to problems 

which may come up. Further, anyone involved in Federal Express' chain of transport 

must undergo initial and recurrent training in order to become and stay familiar with 

regulators' detailed and complex requirements. Periodic alerts update employees on 

new developments (see generally Tr. 104-26). 

Mr. Oppenheimer also pointed out that Respondent took corrective action 

after the discovery of its mistakes. It counseled involved employees and reeducated those and others. It notified the original shipper, AstraZeneca, and refused 

to take any DG shipments from that company until it had provided proof of training 

(Tr. 84-85, 144; Exh. C-9). 

And Respondent asserts that AstraZeneca, the original shipper, shares in the 

blame. It was AstraZeneca which applied the bar code stickers; placed the 

packages on the pallet; and placed the pallet on the trailer for shipping (Tr. 143). 

AstraZeneca failed to notify Respondent in any manner - whether in writing or orally 

- that the shipments at issue contained dangerous goods. Federal Express (as 

seen) also asserted that the ORM-D label was insufficient in size (I.D., p. 4; see also 

Resp. Br., p. 4). Although the boxes had been scanned at four locations, machine 

scanning had been available - making Complainant's point about the proximity of 

the "ORM-D" label to the bar code of less significance.^ 

Respondent also noted that neither of the boxes leaked or caused any harm 

(Tr. 79; Resp. Br., p. 11). The packaging had remained intact (Tr. 79). Finally, the 

carrier pointed out that the Gel, far from being a specialized or unusual product, is a 

consumer item which typically could be purchased off the shelf at a grocery store 

(Tr. 79-80). The implication apparently is that the product could have been shipped 

as a consumer commodity, a category which in a proper case warrants penalty 

mitigation under Complainant's standards (see Resp. Br., p. 10). 

D. Decision 

I have decided to assess a total civil penalty of $30,000. I find and conclude 

that this amount reflects the totality of the circumstances surrounding the offending 

shipments and appropriately achieves Department policies. 

Any package containing hazardous materials which fails to conform to the 

HMRs introduces an unacceptable element into the stream of air commerce. In this 

' Tr. 76. The witness nonetheless acknowledged that the packages had been scanned by hand in Portland 

on at least two occasions. Tr. 132. 
«Xi«ssai->:<s.«:."c i , 

case the flammable items, by their very nature, risked particular peril to the flight. 

The violations presented a significant threatt to the safety of air transportation. These 

facts and circumstances warrant an appropriate fine. 

Another consideration in determining the penalty amount is Respondent's 

size. The agency's policy is to place "a relatively equivalent deterrent effect on each 

air carrier."^ As such, "[wjhen the violator is a large company rather than a small 

company," the Administrator has sdkj, "^the ^i&rtatty may need to be correspondingly 

larger to achieve the same deterrent effect." Toyota Motor Sales, USA, Inc., FAA 

Order No. 94-28 (September 30,1994), p. 11. Federal Express, as a carrier in the 

largest category by any measure, must be subject to a fine containing a deterrent 

factor appropriate to its size. The penalty Should represent something greater in 

effect than simply a cost of doing business. 

Respondent's contention in mitigation that its violations are relatively small in 

number when measured against the scope €f the carrier's operafions, and that such 

circumstance warrants a commensurately small punishment, is rejected. It simply is 

not a relevant consideration. The carrier's obligation to confomn to the laws 

governing the handling and transportation of dangerous goods is the same as any 

other entity. The large number of hazardous materials carried by Federal Express 

carries with it a concomitant responsibility. When it fails in that duty, it must answer 

appropriately. The volume of its operations simply is beside the point. 

I also give no weight to Respondent's argument that no leak or other 

potentially troublesome result flowed from Bs failure to properiy mark the packages. 

These are fortuitous circumstances which do hot warrant mitigation. Indeed, harm 

resulting from any of the shipments would Itave constituted an aggravating factor 

(Exh. C-10, p. 3 (64 Fed.Reg. 19443,19445 (April 21,1999)); see also Tr. 94-96). 

Nor do I think that the carrier's correctlva action warrants a reduction in an otherwise 

reasonable civil penalty. Respondent's actions, while commendable, are not the 

kind of systemic change that the Administrator requires in order to lower an 

otherwise reasonable assessment. See, e.g., Sdven's Paint & Wallpaper Co., FAA 

Order No. 2001-6 (May 16, 2001), p. 6. Additionally, the fact that the original 

shipper, AstraZeneca, failed to notify the carrier of the presence of dangerous goods 

does not warrant mitigation. Federal Exprei^ had a separate duty to inspect the 

packages that it had accepted for air transport -^ a duty that could not be shared or 

delegated. 49 C.F. R. §175.30; see Compl: Rebut., p. 2. The fact that AstraZeneca 

may also bear responsibility for the infractions simply is not relevant to the 

determination in the instant matter. Federal Express was independently and fully 

responsible under the HMRs for pennitting these packages to enter the stream of air 

transportation. 

Finally, civil penalties levied in other cases may be a relevant consideration. 

Comparisons must be hedged, however. As the Administrator has noted, "It is often 

' FAA Order No. 2150.3A, Appendix 1, p. 103, quoted in Folsom's Air Service, Inc., FAA Order No. 2008-

11 (November 6,2008), p. 13. While the agency's expression was, strictly speaking, directed toward the 

Federal Aviation Regulations ("FARs"), the same policy comidi^ations behind the expression make it 

equally appHcable to the HMRs. 
difficult to compare sanctions across cases because there are so many variables 

involved in each case." Alika Aviation, Inc., FAA Order No. 1999-14 (December 22, 

1999), p. 12, n. 20 quoted in Folsom's Air Service, Inc., FAA Order No. 2008-11 

(November 6, 2008), p. 21. Addifionally, base penalty amounts have been raised 

periodically over the years, and have been adjusted upward from time to time to 

account for inflation. The maximum civil penalty for a single violation of 49 U.S.C. 

§5123(a), the penalty statute under which Complainant brought this case, was raised 

from $25,000 to $30,000 in 2002, and then to $50,000 for violations occurring after 

August 10, 2005. See 14 C.F.R. §13.305 (showing changes in minimum and 

maximum penalty amounts). It is useful to note, nonetheless, the decision in the 

noted cases. Like the present matter, they involved two nonconforming units. The 

Respondent in Toyota Motor Sales, USA, Inc., was fined $50,000 for an undeclared 

shipment of two "wet" automobile batteries. FAA Order No. 94-28 (September 30, 

1994). The respondent in Midtown Neon Sign Corporation, FAA Order No. 1996-26 

(August 13, 1996) was fined $25,000 for an undeclared (and leaking) shipment of 

two 1-gallon cans of paint. 

I have considered all other arguments advanced by both parties. Those not 

discussed are rejected as without merit. 

In weighing the all the facts and circumstances, I find and conclude that a civil 

penalty assessment of $30,000 is warranted. This amount appropriately reflects the 

nature of the risk to air transportation safety created by Federal Express, while giving 

appropriate weight to other salient factors. 

The carrier allowed into the stream of air commerce flammable liquids 

considered so perilous that they were prohibited from traveling by air (see Tr. 97-98). 

It should have noticed the errant markings but did not. The carrier violated three 

HMRs. The risk of harm that Respondent brought to air transportation was 

signiflcant. 

In mitigation, it is noted that it was a different entity, the original shipper, 

which prepared the shipment and performed the initial loading. Respondent also 

had not been notified of the shipment's hazardous nature - a circumstance which, 

while not excusing its performance, is an appropriate mitigating factor. 

The assessment also is designed to achieve deterrence in view of both the 

standard of care under which Respondent operates and its size. Air carriers are 

held to the highest duty of care when handling dangerous goods, and the fine must 

be designed to cause Federal Express, which carries a great amount of hazmats (if 

not a greater amount than any other carrier) to sufficiently appreciate that fact. 

In sum, I find that the civil penalty in the amount of $30,000 will achieve the 

statutory purpose of promoting compliance with the HMRs and deterring Respondent 

and entities in a similar position. It appropriately accounts for the factors the statute 

and agency policy directs in fixing the assessment. 
10 

Respondent Federal Express Corporation is hereby assessed a civil penalty 

of $30,000 for violations of the HMRs 49 C.F.R. §§175.3, 175.30(a)(2) and 

175.30(a)(3), as stated in this Initial Decision,' 

Sdwin 

administrative Law Judge" 

Attachment - Service List 

! 

' This decision may be appealed to the Administrator of the FAA. The notice of appeal must conform to 

sections 13.210,13.211(e) and 13.233 of the Rules o£ Practice, which require that a notice of i4}peal 1) be 

filed not later than 10 days (plus an additional five days If mSfuled) fi^m flie service date of this decision, 

and 2) be perfected with a written briefer memorandiun hiOtlat^ than 50 days (plus an additional five, if 

mailed) from the service date of this decision. The notice of i^>peal and brief or memorandum must either 

be a) mailed to the Federal Aviation Administratipn, 8Q0 Jods^i^ence Avenue, S.W., Washington, DC 

20591, Attn: Hearing Docket Clerk, AGC-430, Wilbur Wri^t Budding—Suite 2W1000, or b) delivered 

personally or via expedited courier service to the Federal Avi|tipn Administration, 600 Independence 

Avenue, S.W., Wilbur Wright Building—Suiti 2WI005. Wffiihington, D.C. 20591, Attn: Hearing Docket 

Clerk, AGC-430. A copy of the notice of appeal ahdbtief or memorandum also must be sent to agency 

counsel. Service upon the presiding judge is optional. 
FAA Docket No. CP09NM0010 

(Civil Penalty Action) 

SERVICE LIST 

ORIGINAL & ONE COPY 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, DC 20591 

Attention: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building - Suite 2W1000' 

ONE COPY 

Courtney E. Felts, Respondent's Counsel 

Stafif Attorney, Federal Express, Inc. 

3620 Hacks Cross Road 

Building B, 3''' Floor 

Memphis, TN 38125-8800 

TEL: 901-434-8632 

FAX: 901-434-8283 

Lawrence W. Bierlein, Respondent's Counsel 

1101 30* Street, NW, Suite 500 

Washington, DC 20007 

TEL: 202-625-8355 

FAX: 202-625-4363 

Scott R. Morris, Complainant's Counsel 

Attorney, Office of the Regional Counsel 

Northwest Mountain Region, ANM-7 

Federal Aviation Administration 

1601 Lind Avenue, S.W. 

Renton, WA 98057 

TEL: 425-227-1417 

FAX: 425-227-1007 

The Honorable Richard C. Goodwin, Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E. 

East Building Ground Floor, Room El2-320 

Washington, DC 20590 

TEL: Attorney-Advisor 202-366-2139 

Legal Assistant 202-366-5121 

FAX: 202-366-7536 

' Service was by U.S. Mail. For service in person or by expedited courier, use the follovsang address: 

Hearing Docket, Federal Aviation Administration, 600 Independence Avenue, S. W., Wilbur Wright Buildmg -

Room 2014, Washington, DC 20591, Attention: Hearing Docket Clerk, AGC-430. 
FAA Docket No. CP09NM0010 

(Civil Penalty Action) 

SERVICE LIST 

ORIGINAL & ONE COPY 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, DC 20591 

Attention: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building - Suite 2W1000' 

ONE COPY 

Courtney E. Felts, Respondent's Counsel 

Staff Attorney, Federal Express, Inc. 

3620 Hacks Cross Road 

Building B, 3^'' Floor 

Memphis, TN 38125-8800 

TEL: 901-434-8632 

FAX: 901-434-8283 

Lavwence W. Bierlein, Respondent's Counsel 

1101 30* Street, NW, Suite 500 

Washington, DC 20007 

TEL: 202-625-8355 

FAX: 202-625-4363 

Scott R. Morris, Complainant's Counsel 

Attorney, Office of the Regional Counsel 

Northwest Mountain Region, ANM-7 

Federal Aviation Administration 

1601 Lind Avenue, S.W. 

Renton, WA 98057 

TEL: 425-227-1417 

FAX: 425-227-1007 

The Honorable Richard C. Goodwin, Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E. 

East Building Ground Floor, Room El2-320 

Washington, DC 20590 

TEL: Attorney-Advisor 202-366-2139 

Legal Assistant 202-366-5121 

FAX: 202-366-7536 

' Service was by U. S, Mail, For service in pa^p or by expedited courier, use the following address: 

Hearing Docket, Federal Aviation Admiiustration,,6TO Ic^S^pwwieoce Avenue, S. W., Wilbur Wright Building -

Room 2014, Washington, DC 20591, Attention: ttearan| tfoScet Clerk, AGC-430.