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Scott R. Morris 

FAA Office of Regional Counsel 

1601 Lind Ave., SW 

Renton, Washington 98057 

Telephone: 425/227-1417 

Facsimile: 425/227-1007 

••••-FARTWENTOF 

:;:^r'^PORTATIOM 

! rrr . -. r j '>. O 1 

3 1 

JAN 3 i 201t 

EARING DOCKE ^ 

UNITED STATES OF AMERICA 

FEDERAL AVIATION ADMINISTRATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

In the Matter of 

FEDERAL EXPRESS, INC. 

FAA DOCKET NO. CP09NM0010 

DMS NO. FAA-2009-0721 

FAA Case No. 2007NM700156 

COMPLAINANT'S BRIEF 

PROCEDURAL SUMMARY 

On July 17, 2009, the Complainant issued an Amended Complaint to which Respondent 

filed a timely Amended Answer. In its Answer, Respondent admitted to Section 1,11(1); (2); 

(3)(a), (b), and (f); (4); (5); and (6). Respondent denied the remaining factual allegations, as well 

as, denied the violations alleged, and raised two affirmative defenses. During discovery, 

Respondent admitted to the factual allegation in Section II(3)(c) and (f) of the Complaint. On 

June 22, 2010, the Administrative Law Judge (ALJ) set the hearing in this matter and it was held on 

October 25-26,2010. 

' See Responses to Request for Admissions 3,4, 5, and 6. 

^ See Responses to Request for Admissions 1 and 2. 

COMPLAINANT'S BRIEF - CP09NM0010, 2007NM00156 

FEDERAL EXPRESS 

Pag e 1 o f 15 

SCOTT R . MORRIS, FAA ATTORNEY 

TEL: 425.227.1417 ; FAX: 425.227.100 7 
*••'-- » 

•^J . 

^.Feds^y-Express Inc. (FedEx) is one;ofll3^4|||^|:^p3)t|jo air carrier.opfisra^»|f^ 

with operating revenues in excess of $100 i^dJMmk^'^I^A^v^pm 21,2007, a FedE}iiii|pl#ee -: • ^ 

accepted two separate shipments from Astri^b|;^^pM^|4^ Baltimore, Maiyland for 

transport in air commerce. Affixed to each|sh|^fli^^pl^^|f^lptrate FedEx shipping labels v^th 

unique tracking numbers.'* Also affixed to this shipEtient a* the time that the shipmeiats were 

offered were the transportation unique marking of ORM-D.^ Hazardous material shipping papers 

did not accompany this shipment. These shipme»|gl|?j^iscaianed at the sWpper'slfelilStibn by"^* 

the FodEx truck driver, placed on a FedEx thick and moved to. FedEx sorting facility near 

Baltimore, Maryland. These shipments then flew fissm Baltimore, Maryland to Memphis, 

Tennessee, where they were sorted again and the I^wl^ label affixed to this shipmenl was 

scanned &gain, and thereafter placed on another 4i)r«PSft« Hies* ^pments then flew^m 

MemphiSj Tennessee to Portland, Oregon. Uia(ift^'"<^fli|teiifaiy|'kbd sorting operation^ 

Portland, Oregon, the FedEx shipping label affixed l^'^ese'two separate shipments-Were 

scanned, then placed on a feeder flight 8677-22 opeg^S/d'hy Empire Airlines destinifed for 

Medford, Oregon.^ All told, each of these ^hipp«^-^?«^ scimhed by FedEx on ajt ll ^ four 

occasions prioF4a their .ajrival in Medford, J ./^- i^ : ho' r 

^ See Tr. at 67, lines 8-11. A Group I air carrier un(^r |1»| 

operating revenues in excess of $100,000,000. See %blt|£i 

Respondent's coimsel concedes this fact. See generc^ly^*^ 

* Tr. at 40, lines 2-10 ; Tr. at 49, line 20 - Tr. at 50,ilifl(s | | 

exainination that the two separate tracking numbers t|al^ ^ 

sep(arate shipments. Tr. at 93, lines 9 - 20. 

'Tr. at31,lines 9-12. 

* The location and events concerning these shipments; are sft 

generaZ/v, Tr. at 119-127. 

' Tr. at 41, lines 13 - 15 and Tr. at 75, line 10 - Tr. at 76, line 

COMPIAINSNT's BRIEF - CP09NM0010, 2007NM00156 

FEDERAL EXPRESS 

Page 2 of 15 

|saaetion guidance is aii| ^ iairier with 

1^1$. 19448 under DeiGia^^. fWthcir, 

.^tement of FedEx coun||l)i 

Jli4. Agent Stiger reaffinii^ luring crosspackages meant that tiie^' Here two 

if €"2. See a/jo Tr. it 3t^% t See 

SCOTT R. MORRIS; .|yiA ATTORNEY 

TEL: 425.227.1417; FAX: 42%."227.1007 
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At Medford, Oregon, two Federal Aviation Administration Hazardous Material Special 

Q 

Agents were conducting inspections at the airport. As part of this inspection. Agent Donald 

Stiger gathered from the Medford, Oregon FedEx station the down-line information on what was 

expected to be on flights in-bound to the Medford, Oregon airport. He gathered that information 

so he could compare what air carriers stated would be arriving at the airport, and where this 

hazardous material was located on the aircraft, to what was actually on-board the aircraft upon 

arrival. The down-line information Agent Stiger gathered indicated that no hazardous material 

was aboard flight 8677-22.^° 

Once the aircraft arrived. Agent Stiger contacted the pilot to ascertain if the down-line 

information matched the pilot notification describing what hazardous material the pilot was 

aware were aboard their aircraft. The Notice to Pilot in Command (NOPIC) indicated that there 

were no hazardous materials aboard flight 8677-22." Agents Stiger and Kermy then observed 

the off-loading of flight 8677-22. During the off-loading operations, the Agents observed two 

packages marked ORM-D and this marking was located next to (about an inch from) the FedEx 

affixed shipping label during the off-loading operations of this aircraft. 

The ORM-D marking is a unique marking in the transportation industry to convey that 

material inside the shipment or package is hazardous.'^ However, this marking is not authorized 

for use on shipments in air commerce.''' Agents Stiger and Keimy observed these shipments 

'Tr. at22-23. 

'Tr. at24-25. 

'" Tr. 25, line 19 - Tr. at 26, line 1. 

" Tr. at 26-27. If hazardous materials are aboard an aircraft, the flight crew is required to have a NOPIC, shipping 

papers, and/or a combination of that which indicates what material is aboard it is proper shipping name, quantity, and 

location of hazardous material aboard the aircraft. Tr. at 28. 

'^ Tr. at 35; Tr. at 44, lines 10 - 14 and Exhibit C-3-1. 

" Tr. at 29, lines 4-7 and Tr. at 31, lines 9-12. 

'" Tr. at 29, lines 12 - 30, line 14. See also 49 C.F.R. 173.27. 

COMPLAINANT'S BRIEF - CP0 9NM0 010 , 20 07NM00156 

FEDERAL EXPRESS 

Pag e 3 o f 15 

SCOTT R . MORRIS, FAA ATTORNEY 

TEL: 425.227.1417 ; FAX: 425.227.100 7 
shipments^being off-loaded. The Medford, 

this discrepancy and proceeded to open theifr t«{iJ5 

Ketmy observed in each shipment 24-bottle5-^'' 

on manager had bcti0l^bsmd to 

\'^Qe^ opened^ Agi^il^l^an d 

alfdisaaeri'^ Agent^StiPltt&ieed 

that these bottles did not have a positive maJBitf ^msifeiS^SIB-Y6qtiired by49€.FiR|£§173.27.*^ 

As such, this shipment could not have been*eefa^;^||i!a^Wl©RM-D-AIR shipmtHti^ hi Agent 

Stiger's expert opinion, the classification of the m{i$iEl(ffi3^d\ikl have been ethanobWlc|tool 

solutions or ethanol, UNI 170, hazard class 3, Packing Otoup HI. 

18 

:3:at^:t:"' 

This case boils dovm to whether the "ORM^ii^iOiarkiags on the two boxes tv ^ 

sufficient to impart constructive knowledge ton iidEilKWt&esh^ments contained hflEEai-dous 

material and, if so, whether $37,500 is an aj^r<:^alfr)sa8i^n''for these yiolatitsns^ 

A. The markmeson each box ggveFed|x><i^iM^jpcl^^|i!lB^ thatlhesl 

contained hazardous materials. 

The FAA is entitled to a ruUng in itslfavor hohox^ the undisputed evidence lestablishes 

:-/" >.r-' 

that FedEx had constructive knowledge thatlthe boxts costtainM hazardous material. As such. 

('•- - ^ l-Xr V 

FedEx "knowingly" violated 49 C.F.R. §§ 175.3 (acs^tit'shipment which contains a hazardous 

maisrial that is not prepared in accordance ^ithlSilii^^^pl^iui'snaterial regulations), l1ll'5.30(a)(2) 

^ ' '•'•'-•''- ' , ^-.^-i^ . - ____ 

"''^ iit^iii££L; 

'^ Tr. at 32 and Exhibits C-3-2, C-3-3, C-4, and C-5. 

'* Tr. at 33; Tr. at 47 line 18 - Tr. at 48, line 8; and 

shotdd have known that the iimer packaging was fauli 

associated with the transport of this substance in air 

" Agent Stiger's opinion was verified by his convers; 

12 and TV. at i88,Hiifrl3 - Tr. at 89, line 19. 

" Tr. at 34, lines 8 -18; Tr. at 53 lines 6 - 14; and Tr, 

by thte substahce'k Material Safety Data Sheet (MSD 

accepted as an e:q>ert witness as to the applications o: 

5ce Tr. at 21. 

CJOMPIAINANT'S BRIEF - CP09NM0010, 2OO7NMO0156 

FEDERAL EXPRESS 

Pag e 4 o f 15 

,p;H|9>Jlajnant is not asserting t|^JF«]&c 

l ^ t in determining that levetMI&Ic 

ilj^^oo d of a leak. '•^r-^fy-^^ 

1. Tlie c|)M6ay|^i^^'Sted^ " ^ 

at'Stiger •^W!^m^'&^d' -'-'""'^ ' 

'•• SCOTT R. MoiiRls, Wtfi ATTORNEY 

TSL : 425.227.141-7 ; FAX: *ffi«.i27.100 7 
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(accepts hazardous material shipment that are not described on the shipping materials), and 

175.30(a)(3)(accepts hazardous material shipment that is not properly marked). 

Under 49 U.S.C. § 5123(a), a person knowingly violates a hazardous material regulation 

if "(A) the person has actual knowledge of the facts giving rise to the violation; or (B) a 

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

knowledge." In 1998, the Department of Transportation (DOT) published a formal interpretation 

that clarifies the above provision. 63 F.R. 30411 (1998). The DOT wrote: 

[a] carrier knowingly violates the HMR when the carrier accepts or transports a hazardous 

material with... constructive knowledge that a package contains a hazardous material 

which has not been packaged, marked, labeled, and described on a shipping paper as 

required by the HMR. This means that a carrier may not ignore readily apparent facts that 

indicate that.... a shipment actually contains a hazardous material governed by the 

HMR despite the fact that it is not marked, labeled, placarded, or described on a shipping 

paper as containing a hazardous material. 63 F.R. 30411 (1998). 

The FAA Administrator has held that this statute "requires inquiry and treats a person as 

possessing whatever knowledge inquiry would have produced." In the Matter Interstate 

Chemical Co., FAA Order No. 2002-29, 2002 WL 31957045 at *7 citing Contract Courier v. 

Research, 924F.2d 112, 114 (7* Cir. 1991).'^ 

FedEx is no stranger to the requirements of inspecting packages and the consequences of 

accepting and transporting ORM-D marked packages in air commerce. See F.A.A. v. Federal 

Express, FAA Docket No. CP98GL0021, 2000 WL 34229115 (D.O.T. 2000). hi the present 

case, the markings on each box were sufficient to indicate to a reasonable person that the 

shipments at issue contained hazardous material and must not be transported by air. The boxes at 

' ' In its comments regarding constructive knowledge, the Department of Transportation writes that, "In the case of an 

undeclared or hidden shipment, all relevant facts must be considered to determine whether or not a reasonable person 

acting in the circumstances and exercising reasonable care would realize the presence of hazardous materials. In an 

enforcement proceeding, this is always a question of fact, to be determined by the fact-fmder." 64 F.R. 30412. In 

COMPLAINANT'S BRIEF - CP0 9NM0010, 20 07NM00156 

FEDERAL EXPRESS 

Pag e 5 o f 15 

SCOTT R . MORRIS, FAA ATTORNEY 

TEL: 425.227.1417 ; FAX: 425.227.100 7 
•••?!»,".'''<••"•"' 

W w 

issue had the words "ORM-D" and "ConsuiNrji6?dl^Bi|fei^<>n two sides, SeeMo^sm^Bto 

Complainan<!s Request for Admissions 3-^ , Wid^i^i^vl^BS^lmB^^^ 

Agent's statement). These markings were iinaiB)lilli^^^8|l^;«Q the FedEx(l^l^l^ ^ 

Admit #3-6, Photos, mspector affidavit.) "4)i^*4ii|b»|*fcwWati<m^f 

Material." 49 C.F.R. § 172.308. ORM mat|Brial^thl*^«ttt-|ife^shipped by air requires^ 

designation "ORM-D-AIR" rather than merely ''QVi3i4:*m'49 C.F.R. § 172.316(a)Cl|. "The 

package prominently stated ' ORM-D,' which is a haaSatddns material mark - and a plainly 

inaccurate one. That marking signifies grotindititia^llliioiai^and the packages of iii^|«va s in 

the process of air shipment." F.A.A. v. Federal> Exp^0SS,^AADockct No. CP9SQ^0!^,2OOO 

WL 34229115, *3 (D.O.T. 2000) (hiitial Decision o^ttageKolko). Despite the maifeiap on both 

sides of the boxes that indicated that the sWj)m<^ts<^ll^'!quirii:fyfor transport in afciiM 

FedEx tran^wrted the shipments on flights |roi«®#|tedp«l4i|r5flanditoMemi*^ 

and fi-om Mesmphis, Tennessee to Portland, •0«^5©8St^i«'?B'.<'> ;* r nMiy. =. -

If FedEx had exercised reasonable c4reJit^i^(fe|^i!|iMin,'l(?ould havein(tBt#d^^ether 

the shipments contained hazardous material^. The fl^ifj^^l'tt^eiMr. sufficiently cons^SrtSc^ 

eno^jgh to al«rt FedEx that the boxes contai49#|a^|||^jii^g6lMained,- a hassafdil^j^i^al. 

SiriipiyhatdSMie marking "ORM-D"as aJhjsS^i^^P^^l^^S^Miat) markiiyg^fead of 

itself is a sufficient indication to meet the requirefmSB^^IrfjijaiS^^ knowledge. y&&^ F.A.A. v. 

Federal Expr^s, FAA Docket No. CP98Gl4)fi^i^^^^529115^ *2-*3 (©.QlTJfOOG). 

hi its answer, FedEx repeatedly note| il^^igi|ifctofl|ie:ffORM-D" lahel4S»<#jse it 

believes that the term "ORM-D" does not in^^|^,|^^^^( ^ of hazardous nif^teriJllg 

— , ^ H-* 

I^^ i tiiat there were no sh4^pHE||p^>ers 

"^al, 

i '•'"'' SCOTT R. MoRnii/fftA ATTORNEY 

TEt: 425.227.1417 ; PAX: Sa^S;227.1007 

the present case, tiiere is no dispute regarding the ms^jos^ 

associated with the boxes, and that the boxes contained lii 

COMPLAINANT'S BRIEF - CP09NM0010, 2007NM00156 

FEDERAL EXPRESS 

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prominently enough. See Answer at II. 3.c., 4., 5., and 6. FedEx's criticism of the label has been 

reviewed, and responded to, by the DOT. See 71 FR 14586 at 14592-93. This is not the 

appropriate forum for FedEx's criticism of this marking nor does its advocacy against the 

marking absolve it fi-om abiding by the present hazardous material regulations. Also in its 

Answer, FedEx claims that the shipper of these boxes, AstraZeneca, had never previously offered 

shipments by air. (Answer 3.c.). Assuming for purposes of argument that this is true, this would 

not absolve FedEx of the requirement that it had to examine the boxes and exercising reasonable 

care when it discovered the "ORM-D" markings. Respondent's argument fails because the 

transportation unique marking was literally within an inch of the documents that its employees 

had to visually look at to scan for purposes of tracking the document, a document that its 

employees had to look at on several occasions. 

FedEx has previously made the argument that it has no duty to look at all sides of a 

package or to otherwise discover the incorrect markings. This argument was soundly rejected. 

As that ALJ correctly stated, "[t]he risk of harm posed by improperly marked, labeled, or 

packaged hazardous materials is substantial; the HMRs, furthermore, underscore the strong 

public policy favoring properly transported hazardous materials. The burden of inspection, on 

the other hand is relatively small." F.A.A. v. Federal Express, supra, at *4. 

B. The Proposed Sanction is Supported bv the Facts and the Administrator's Sanction 

Guidance Set Forth in FAA Order 2150.3A. 

From the outset, the Complainant acknowledges that it has the burden to justify the amount 

of civil penalty it seeks. In the Matter of Luxemburg, FAA Order 1994-18 (Jvme 22, 1994). To 

fiilfill this obligation the Administrator has published sanction guidelines in 64 Federal Register 

COMPLAINANT'S BRIEF - CP09NM0010, 2007NM00156 

FEDERAL EXPRESS 

Pag e 7 o f 15 

SCOTT R . MORRIS, FA A ATTORNEY 

TEL: 425.227.1417 ; FAX: 425.227.100 7 
;

!«»|j:w;w 

19443 - 19450 (April 21,1999).^° hi the O 

a $37,500 ci'Pilpenalty. In this case, the sanfei 

the Administrator's sanction guidance.^* 

entitled to substantial deference in assessing 

1 ^ 

ihat the Respdfiiiifii^eiKssessed 

ate but fiiUy^s^|;ii!^^'tmder 1 

Ifhed ^'[a]n stsdrnMsm^dsa^mc^is 

ipjfepriateforaTwoiil^sofits J 

regulations. The agency's choice of a sanctic«felB«iPif|i^^pte^Wned tinless itis tJB#tePanted in 

law or without justification in fact." NL IruhisttieSril^^lOept: d/TransportathM^f^X B.2d 141, 

144 (D.C. Cir. 1990). 

Complainant's sanction determinati(:|i#ll|^Mp|^l|i^flect a fixed mathti|iill6al 

computation but considers a multitude of factoK-^iilirtS^^I^ walked tte ALJ thiougff ftte 

Administrator's sanction guidance pointing dutildA^i^^ijritO'leH^atlhe nature, ci|icudi#nces, 

extent, and gravity of the violation.^^ As to the wei^ites»dl«rt©<i^iwth each factor »(^ttiii that 

guidance^ '^the Complainant maintains' relat4r^^d«iiil@|^ls^$fi3^on:in.^efem^^ 

final ag^egate weight in proposmg the level Q^siili^^i^0^yMtHe Matter of Wti^i^ArLuker, 

Jr., FAA Docket No. CP09SW0008,2010 

Yoder Granting Complainant's Motion for ^iS^ 

Theiisk category for this substance a4 » 

CatiBgory B.^ This warrants a moderate W( 

containing forty-eight (48) bottles, and fortunately 

^^2010) (OrderiofCWef Judge 

;:^:. 

^lUnmabie IkixM vi«^IUsk> • 

itijb^eparate sh^iirteVolved 

dainageor] 5ns or 

^° It is iniportantto recall ttat the Administrator creatid . 

sanations. Se« 64 fed. Reg. 19443. Therefore, it is i*e| 

effecdye date ofliis guidance. 

^' "^e n sanation is an issue, die law judge is expectid ^ 

pendty selected, ^etilier or not the penalty is reduce<l[.'' 

the law judge's sanction decision." In the Matter ofTiiydta 

89966 (Sept. 30, 1994)(citingto 5 U.S.C. §557(c)). 

ij-.-'lyi:!: 

toVovide consist^cy?iii|^g«Qcy's 

w«re imposed ii)i^ca£^^||i^^^ the 

itioij of the amquBit^ ^ civil 

e Act xeo^^'W^^Muoi. 

^,lne., YkK Order No. ^tr^iA^kifL 

5e« Tr. at 60 - 69. 

Tr. at 62, lines 7 - 14 and Exhibit C-10. 

OOMPLAINAHT'S BRIEF - CP09NM0010, 2007NM00156 ••-•*;.G;r5r;%j • v ; SCOTT R. MoRRiB,'fjVA ATTORNEY 

PEMSAL EXPJBSS tEL: 425.227.1417; FAX: *3i.>i27.1007 

Page 8 of 15 
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property.^'* However the lack of damage is given no weight.^^ The Respondent was not the 

manufacturer of the hazardous material and someone other than Respondent prepared the shipment 

for transportation.^^ However, Respondent accepted and transported two shipments that had readily 

apparent indications that they contained hazardous material as one cannot transport a shipment with 

the ORM-D marking in air transport. Given this company's level of experience with hazardous 

material, it caimot seriously argue that it reasonably relied on incorrect information fi'om another 

source. Here, there are two shipments with the wrong marking on each shipment and no shipping 

papers.'^^ In both instances, this unique transportation marking was on the same side as the FedEx 

affixed shipping label that its persormel had to look at to scan the status of transportation 

information. In fact, this unique transportation marking was within inches of this scan bar used to 

transport/track these shipments. 

In Respondent's letter of response, it essentially provided that its employees were merely 

counseled about this incident. TTiis is not a correction action by any measure and clearly is not 

anything other than what would be expected of an air carrier that transports hazardous material in 

the quantity transported by Respondent. "Corrective actions that justify reduction of the 

^* Tr. at 62, line 15 - Tr. at 62, line 4. Respondent may try to claim that it should be considered mitigatmg that the 

shipments did not leak and that the hazardous wasn't really that significant. See Tr. at 79, lines - Tr. at 80, line 11. 

The Administrator has long held that good luck is not to be considered a mitigating factor and specifically addresses 

this in his sanction guidance. See Exhibit C-10 at page 19445 (64 Fed. Reg 19445). Further, in this case, they 

actually allowed aboard its aircraft shipments that could not fly in air commerce as packaged. Granted, Respondent 

could not know how those inner packages were prepared, but it assumed the risk that the inner containers did not 

comply with the packaging for air commerce by accepting a shipment that was not identified as being prepared for 

transport in air commerce, to wit: the ORM-D-Air marking. As Agent Stiger best states "[a]n ORM-D tells you right 

off the bat, that it probably is not qualified for air transportation." Tr. at 98, lines 15-17. 

^^Tr. at 63, lines 2-4 . 

^*Tr. at 63, lines 7-19 . 

"Tr. at 64, lines 6-15 . 

Tr. at 58, lines 7 - 20 and Exhibit C-9. 

COMPLAINANT's BRIEF 

FEDERAL EXPRESS 

Pag e 9 o f 15 

CP09NM0010, 2007NM00156 SCOTT R . MORRIS, FAA ATTORNEY 

TEL: 425.227.1417 ; FAX: 425.227.100 7 
P'i. 

*s# 

reconrniended penalty mm^ exoecd fl>e mi.4n>ai»i4M|M»>»>.».'-'' It lacks «mm^m ^ 

that the coireSctive action taken by Respond^nf ^tH^liii^i^li^'^ilinimiim legal t^isNi^ients. 

What is most troubling in this case is!tite'l^ii||il||j|Ett*18^H^^ 

comes to complying with this regulation. R^spbciH^ililNSlfiJHdneofits 

Of^nheimer. Mr. Oppenheimer is the Respolideiil*si^afeh''lnanager of corporate salb^' 

programs and has oversight of the Respondent's heiiikeSiQiiiS^iMbtnii compliance progi^.^'^ 

Mr. Oppenheimer's testimony embodied the Re^pdajattel^^ftilStede towards ORM-D-shi^ments. 

Despite direct questioning, Mr. Oppenheimef elE6if^^|||||l3i^|^ the requireniim<ik^|[»ilvent 

acceptance of improperly marked ORM-D sWpffiedit3|ii5^^i*i^^llffin^", that it requiP^ii''*'jS5arfect 

world" to catch these shipments, and that it dlsptiliiii^pil^liilC^ attributing that fa^^slt it 

should have been "caught" by the shipper.^ ^ Most diSftirWilglyIftiat *Vhen they [Fedfe* 

employei^]^^ scannmg the sticker that has iili^i^i^gp^W^ly'sCanmh 

showing thitt'the package is in fact changing lo^N^SJUli^J-^^Mif^ip^flheimer stfil^l^^h't 

agi«e that tMt's [an ORM-D marking an inc^ £I^J^Mpii^W}bvious indic^dorM it's a 

hazardous fniat^al.^^ Yet during his direct, ier*«Niil!^i#^!i8^Pesion the regulati<»tli^uire 

additional marking and paperwork is to help ftm$^^^^^^^l^^itlfyets recognized thaf the 

shipment is wing offered as dangerous gooda'^^Mffll Ignores 

. '"l-W. 

Req)6hdent's responsibility, say duty, to stopia ^hipm^ttt'^^lhe ORM-D markingiS literally 

•••••'. • i i>r-r''^0,]'yW$m P;K • • -. f:•'^tifyn ' l, • 

inches from the scan bar. Mr. Oppenheimer fd^^^H^^^P^!^ ^ P^^?;)''^^^^^ 

ii,-'i%lim'M'-': -i.."' 

^' Ejdiibit C-9 (Administrator's Sanction Guidance 6^ I^[i|i|M||^^t|4^H^ 0 column, 1" M ] 

sentence.' •• - '• I M^^mPj V 'P''' ' 

'Tr.atl03,Iine8-ll. 

' Tr. at 128) liiie 16 - Tr. at 133, line 8. 

' Tr; at 133 lines 5 - 8. 

'Tr. at 134, lines 12-19. 

'Tr. at 130, lines 16-20. 

COMPLAINANT'S BRIEF - CP09NM0010, 2007NM00156 

FEDERAL EXPRESS 

Page 10 of 15 

•>m^M'ir- .,5: 'i • , 

n tp* 

•tSt: 425.227.1417 ; FAX: 4a*;"227.1007 

SCOTT R . MoRltt^j;; SSM^ ATTORNEY 
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FedEx system after it's been initially accepted, there is no further duty to prevent an improperly 

accepted shipment from moving within its system."'^ A see no evil approach by an air carrier in 

transporting hazardous material is totally unacceptable. 

FedEx also has a violation history. Over the three years prior to this incident, the 

Respondent had five violations where a civil penalty had been assessed.^^ A prior violation history 

is considered a matter in aggravation. 

One applies the above factors within the context of the sanction matrix. Respondent is a 

Group I air carrier.''* The sanction range for a Group I air carrier for 175.30 violations is $5,000 to 

$27,500 per violation, in this case there are two improper acceptances for hazardous material with 

no shipping papers and two unproper acceptances for improper markings (when offered for air 

transport).^^ In this case there were also two 49 CFR 175.3 violations which are referenced as 

"other 175" violations in the sanction guidance. The sanction range for "other 175" violations is 

$5,000 - $15,000 per violation.'*^ Therefore,- the sanction range for the violations in this case are 

between $30,000 - $165,000.'*' The requested $37,500 falls on the lowest end of this range. Even 

if one was to assume that the violations were multiphcious for each of the two separate shipments. 

" Tr. at 135, line 19 - Tr. at 136, line 2. See also Tr. at 138, line 13 - Tr. at 139, line 6. 

'* The sanction guidance allows one to consider the prior five years. Tr. at 66, lines 8-1 2 and Exhibit C-10 (p. 

19446). 

" Tr. at 66, lines 2 - 7 and Exhibit C-11. 

On the other hand, the Administrator has time and again opined that the absence of a violation history is not 

grounds for mitigation. See Toyota Motor Sales, FAA Order No. 94-28 (Sept. 30,1994) See also FAA Order 

2150.3B, chap. 7, para. 7-4h(l)[p. 7-7] ("A violation-free history is the expected norm, not the exception and, 

therefore, is not a mitigating factor.") 

Tr. at 67, lines 10-11. 

Tr. at 68, lines 3 - 11 and Exhibit C-10. 

•*" Tr. at 68, lines 11 - 17 and Exhibit C-10. 

"" The Administrator frowns on a strict formula approach. See Interstate Chemical Company, Inc., FAA Order 

2002-29 (Dec. 6,2002), p. 15. Complainant also recognizes that little weight should be given to merely addressing 

the maximum potential penalty possible. See FAA v. Trans States Airlines, FAA Docket No. CP08CE0003, 

2009 WL 1041885 (April 16, 2009)(Initial Decision of ALJ Goodwin), at fii 6. This figure is provided as illustrative 

COMPLAINANT'S BRIEF - CP09NM0010, 2007NM00156 

FEDERAL EXPRESS 

Pag e 1 1 o f 15 

SCOTT R . MORRIS, FAA ATTORNEY 

TEL: 425.227.1417 ; FAX: 425.227.100 7 
<VJS,- ;^-^-

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'^'^''"'*=' « a great deal ^fl^ ^ ^teS&a i 

' ^''^'P^deiance of th • ''^'''^P ^ Sanction fc «-^ -

'^ce of the evidence P« ~ ' " ^* ^"PPorted hv« , • 

I. . , "TM^»l«&rea<w,v '*«*'•.•. '"""^Public's 

£=^---~". ...».:.,:::""'• "•'^su; 

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-.M 
ry 

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Respondent has already conceded that it has the financial ability to pay the proposed civil 

penalty. The Complainant has provided explanation as to how it arrived at the proposed penalty 

consistent with the Administrator's sanction guidance. Given Respondent's prior violation 

history, the type of violations involved, and candidly Respondent's attitude about this particular 

regulation, the $37,500 proposed is eminently reasonable. What Respondent wishes to do is 

shift all responsibility to the shipper and have the ALJ ignore its ovm regulatory responsibilities 

during acceptance and transport after improper acceptance - essentially shifting its quality control 

responsibilities from itself to another; this we cannot allow. As the ultimate guardians of air 

transportation safety, air carrier duties must be performed with the highest degree of care and 

they caimot even absolve themselves of this duty simply because they disagree with that status of 

a currently effective regulation. To its credit, it has taken steps to change the law, but that is not 

something that therefore permits this air carrier from meeting its obligations under the regulation 

still in effect. What happened here does not warrant any further mitigation other than that 

already considered by the Agency in its analysis. To allow Respondent a second bite at the apple 

for sanction when these factors have already been considered would eliminate the need for the 

Agency to do a totality of the circumstance analysis and merely rely upon the rout mathematical 

formulation the Administrator seeks to avoid. Having demonstrated a logical rationale for the 

requested sanction, the ALJ should give deference to that sanction and affirmed the 

Complainant's request for the imposition for a $37,500 penalty. 

It is the Agency's position that any amount lower than that proposed would not provide a 

sufficient deterrent for these types of violations for this size of an air carrier. The Agency is in 

the best position to determine what sanction should be imposed for a given violation and absent a 

finding that the Administrator is acting arbitrary or capricious, the ALJ should give deference to 

COMPLAINANT'S BRIEF - CP09NM0010, 2 0 07NM00156 

FEDERAL EXPRESS 

Pag e 13 o f 15 

SCOTT R . MORRIS, FAA ATTORNEY 

TEL: 425.227.1417 ; FAX: 425.227.100 7 
--•rfwffir 

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w w 

the sanction proposed, especially vsfhen tlie ^**°^ 

guidance.;, "Whpn the violator is a large co^i] 

Administrator has said, "the penalty may neM' 

deterrent effect." Toyota Motor Sales, USA,Mm:'0^' 

^ £tt the lower etid e^ii|| ii^ction 

l^small company,"ittil|,y; • 

iiiigly larger td achii^^^aje same 

W<>.'94-28 (Septembfe#|pi4994), p. 

11. Here the violator is the world's largest fitei^t«8|lillteJ6iSEteis of tons flown and Ib^iecond 

largest in terms of fleet size."*^ It is important the'j^i^'^iiL8*Mtq>resent somethiAi pSater in 

effect than simply a cost of doing business. 

':•:.:)•-5¥? ' • ji i 

RESPECTFULLY SUBMITTED this 24*^ d^ of JaaiiiEy|201i 

,;^ttR. Morris 

FAA Attomey 

1 ^ .;V?'v-'>5^' v'S'i'-i^^'ijb V;::' 

i ~- • • .sJ<i^;';S-'"iS K,-\" . 

'J\> «•,;*,:;•. 

I •. ,;,ei|r ,ui>( ••.''• 

•:\:ifr 

: ' ' .-<- . l i 

ff*3;-'»..i'a*» »|f:<M$;. '-styi-^''-i f •• 

' See www.wiljdpedi^org/wiki/FedEx Express (last vfeited'dlSi^*!,-

COMPLAINANT'S BRIEF - CP09NM0010, 2007NM00156 ^'"'•'>i'*". 

P^BRAL EXI>RESS 

Pag e 14 o f 1 5 

SCOTT R. MORRIS;'#j|pSr»JfaKiRHEY 

TEL: 425.227.1417 ; PAX:'4^5'v22 ? . 100 7 

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CERTIFICATE OF SERVICE 

I hereby certify that the foregoing Complainant's Brief, has been served via Facsimile and 

Certified Mail this date, to the following: 

The Honorable Richard C. Goodvsdri 

Office of hearings, M-20 

1200 New Jersey Avenue, S.E. 

East Building Ground Floor, Rm El2-320 

Washington, D.C. 20590 

FAX: 202.366.7536 

Attn: Hearing Docket Clerk, AGC-430 

Federal Aviation Administration 

800 Independence Ave SW 

Wilbur Wright Bldg. - Suite 2W1000 

Washington, D.C. 20591 

FAX: 202. 493.5142 

Courtney E. Felts 

Staff Attomey, Federal Express, Inc. 

3620 Hacks Cross Road 

Building B, 3"^ Floor 

Memphis, TN 38125-8800 

FAX: 901.434.8283 

Dated this 24*^ day of January, 2011. 

MOIFAIR CHIN 

Office of Regional Counsel (ANM-7) 

Federal Aviation Administration 

1601 Lind Ave. SW 

Renton, W A 98057 

TEL: 425.227.2160 

FAX: 425.227.1007 

COMPLAINANT' s BRIEF - CP09NM0010, 2007NM00156 SCOTT R. MORRIS, FAA ATTORNEY 

FEDERAL EXPRESS TEL: 425.227.1417 ; FAX: 425.227.100 7 

Pag e 15 o f 15