### U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS



### FEDERAL AVIATION ADMINISTRATION Complainant,
v. 

### UNITED PARCEL SERVICE CO. Respondent. WASHINGTON, DC ) ) ) ) ) ) ) ) ) ) )



## ___________________________ ) 

## APR\ 520\6 

## HEARING DOCKET DocketNo. FAA-2016-4261 Case No. 20l3S0700189 ALI 

### I.E. Sullivan

DECLARATION OF PAULALP IN SUPPORT OF UNITED PARCEL SERVICE CO.'S RESPONSE TO COMPLAINANT'S "RESPONSE" TO RESPONDENT'S MOTION FOR EXTENSION OF TIME 

### I, Paul Alp, an attorney admitted to practice law in the District ofColumbia, declare as follows:1. I am an attorney withthe law firm Crowell & 

### Moring, LLP, one ofthe firms representing Respondent United Parcel Service Co. ("UPS Airlines") in the above-captioned action. As such, I am familiar with the facts and circumstances discussed herein. 2. A true and correct copy ofthe Notice ofProposed Civil Penalty in FAA Case No. 20l3S0700189 dated March 11,2015 is attached as Exhibit l. 

### 3. A true and correct copy ofa letter dated April2, 2013 in FAA Case No. 20l3S0700189 is attached as Exhibit 2. 4. True and correct copies of!etters dated January 26, 2012 in FAA Case No. 201180700519 and February 9, 2012 in FAA Case No. 2012S0700063 are collectively attached
as Exhibit 3.

### 5. A true and correct copy ofthe FAA Complaint dated March 9, 2016 in

### FAA DocketNo. 2015-3320 is attached as Exhibit 4. 6. A true and correct copy ofthe FAA Complaint dated March 9, 2016 in FAA DocketNo. 2016-4262 is attached as Exhibit 5.

I declare under penalty ofperjury that the foregoing is true and correct. Executed on April 15, 2016.
Paul Alp

- 2-

## EXHIBIT 1Southern Region U.S. Department ofTransportation Office ofthe Regional Counsel Federal Aviation Administration



# MAR 1110m' REGULAR MAIL AND CERTIFIED MAIL- RETURN RECEIPT REQUESTED
President United Parcel Service, Inc. 55 Glenlake Parkway NE · Atlanta, GA 30328 Mitchell R. Nichols or President United Parcel Service Co. (Air) 1400 Hurstbome Parkway Louisville, KY 40223 P. 0. Box 20636 Atlanta, Georgia 30320 (404) 305-5200 (404) 305-5223 FAX

Case No. 2013S0700189

NOTICE OFPROPOSED CIVIL PENALTY Based on a report of investigation, including the letter of Samuel S. Elkind, dated March 19, 2013, it appears that: COUNT ONE I. On or about March 13,2013, United Parcel Service, Inc. ("UPS") or its agent knowingly offered, for transportation by air, a non-specification fiberboard box containing hazardous materials ("shipment") that was not properly prepared for airtransportation. 2. The above-mentioned shipment was assigned UPS 3-Day Select tracking number/air waybill number 1Z 617-489-12-6033-7371. 3. The shipment was originally offered by VetteSupply.com, 6678 E. Weld Park, Stillman Valley, IL 61084 for air transportation to the consignee, 7717 Eagle Ridge Dr., San Diego, CA 61084. 4. The shipment originated at 100 W. Ellwalk Dr., Cortland, IL 60112. 5. On or about September 10,2012, employees at the UPS sort facility in Louisville, Kentucky discovered the shipment leaking.6. The above-mentioned shipment contained four !-gallon metal containers ofGM Vehicle Care Black Reconditioning Paint (with metal lids), marked "DANGER! FLAMMABLE LIQUID AND VAPOR". 7. Further investigation showed one ofthe metal·containers leaked approximately ]- gallon ofthe above-described material into and through above-mentioned fiberboard box. 8. The fiberboard box described above was marked "Consumer Commodity, ORMD". 9. At all times mentioned herein, the shipment was not accompanied by a Shipper's Certification or Declaration ofDangerous Goods. I0. a. GM Vehicle Care Black Reconditioning Paint is classified as a hazardous material under the Department ofTransportation Hazardous Materials Regulations (HMR) (49 C.F.R. 

### § 172.101). b. The proper shipping name of GM Vehicle Care Black Reconditioning Paint is "Paint". It is in Hazard Class 3 (Flanunable Liquid), Packing Group II, and has an assigned identification number ofUN1219. The proper label is FLAMMABLELIQUID.

c. Ifproperly packaged for air transportation pursuant to 49 C.F.R. 

### § 173.27 the above-described material could have been renamed Consumer Commodity and reclassed as ORMcD-Air. II. UPS offered the above-described shipment of hazardous material for transportation by air without shipping papers that included: (a) the assigned identification numberprescribed for each hazardous material; (b) the proper shipping name prescribed for each hazardous material; (c) the hazard class prescribed for each hazardous material; (d) the packing group prescribed for each hazardous material; (e) the total net mass per package ofeach hazardous material; and, (f) the number and type ofpackages containing hazardous material. 12. UPS offered the above-described shipment ofhazardous material for transportation by air and failed to:

2

### (a) certify that the materials were in accordance with the HMR (49 C.F.R. §§ .171, et

**~.)by** 

### printing on the shipping papers the certification set forth in§ 172.204(a)(l),

172.204(a)(2), or § 172.204(c) ofthe HMR; (b) prepare the required certifications in duplicate; and, (c) add to the certification required in this section the following statement: "I declare that all'ofthe applicable air transport requirements have beenmet." 13. UPS offered the above-described shipment ofhazardous materials for transportation by air when: (a) the cuter container was not marked with the proper shipping name ofeach hazardous material contained therein; (b) the outer container was not marked with the assigned identification number ofeach hazardous material contained therein; (c) a "ORM-D-AIR" marking was not on the outer container. (d) a "FLAMMABLE LIQUID" label was not affixed to the ruler container. 14. UPS offered the above-described shipment ofhazardous material for transportation by air and failed to make emergency response information available for use at all times the hazardous material was present. · 15. UPS offered the above-described shipment ofhazardous material for· transportation by air and failed to make an emergency response telephone number immediately available to the appropriate official person designated to respondto an incident involving a hazardous material, orwho was conducting an investigation involving a hazardous material. 16. UPS offered the above-described shipment ofhazardous material for transportation by air when the packaging was not designed, constructed, maintained, filled, its contents so limited, and closed, so that under conditions normally incident to transportation, there would be no identifiable release ofhazardous material to the environment. 17. UPS offered the above-described shipment for transportation by air
.when the above-described package was not properly packagedfor air transportation. By reason of the above, UPS violated the following Department of Transportation Hazardous Materials Regulations (Title 49 ofthe Code ofFederal Regulations):

3a. Section 171.2(b) in that UPS offered a hazardous material for transportation in commerce and failed to comply with all applicable requirements ofthis subchapter, or an exemption or special permit, approval, orregistration issued underthis subchapter orunder subchapterA ofthis chapter. There may be morethan one offeror ofa shipment of hazardous materials. Each offeroris responsible for complying with the requirements of this subchapter, or an exemption or special permit, approval, or registration issued under this subchapteror subchapter A ofthis chapter, with respect to any pre-transportation function that it performs or is required to perform; however, each offeror is responsible only for the specific pre-transportation functions that it performs or is required to perform, and each offeror may rely on informationprovided by another offeror, unless that offeror knows or, areasonable person, acting in the circumstances and exercising reasonable care, would have knowledge that the information provided by the other offeror is incorrect. b. Section I 7 I.2(e) in thatUPS offered or accepted a hazardous material for transportation in commercewhen the hazardous material was not properly classed, described, packaged, marked, labeled, and in condition for shipment as required or authorized by applicable requirements ofthis subchapter, or an exemption, approval, or registration issued under this subchapteror under subchapterA ofthis chapter.
c. Section 171 

### .2(f) in that UPS transported ahazardous material in commerce and failed to transport it in accordance with applicable requirements ofthis subchapter, or an exemption or special permit, approval, orregistration issued under this subchapter or subchapter A ofthis chapter. Each carrier who transports a hazardous material in commerce may rely on informationprovided by the offeror ofthe hazardous material or a prior carrier, unless the carrier knows or, a reasonable person, acting in the circumstances and exercising reasonable care, would have knowledge that the information provided by the offeroror.prior carrieris incorrect. d. Sections 172.200(a) and 172.202(a)(l) in that UPS offered a hazardous material for transportation and failed to describe thehazardous material on shipping papers including the identification number prescribed for the material as shown in Column 4 ofthe§ 172.10I Table, in the manner required by this subpart.
e. Sections 172.200(a) and 172.202(a)(2) in that UPS offered a hazardous material for transportation and failed to describe the hazardous material on shipping papers including the proper shipping name prescribed for the material as shown in Column 2 ofthe § 172.10I Table. 

### f. Sections I72.200(a) and I72.202(a)(3) in that UPS offered a hazardous material for transportation and failed to describe the hazardous material on shipping papers including the hazard class ordivision number prescribed for the material as shown in Column 3 of the§ 172.101 Table.

4g. Sections 172.200(a) and 172.202(a)( 4) in that UPS offered a hazardous material for transportation and failed to describe the hazardous material on shipping papers including the packing group in Roman numerals, as designated for the hazardous material in Column 5 ofthe 

### § 172.101 Table. h. Sections 172.200(a) and 172.202(a)(6) in that UPS offered a hazardous material for transportation by aircraft and failed to describe the hazardous material on shipping papers showing the total mass perpackage, unless a gross mass is indicated in Columns (9A) or (98) ofthe§ 172.101 Table in which case the total gross mass per package must be shown; or, for Class 7 materials, the quantity ofradioactive must be shown by activity.
1. Sections 172.200(a) and 172.202(a)(7) in that UPS offered a hazardous material for transportation and failed to describe thehazardous material on shipping papers indicating the number and type ofpackages (for example, "12 drums"). 

### J. Sections 172.204(a) or (c)(l) in that UPS offered ahazardous material for transportation and failed to certifY that the material was offered for transportation in accordance with this subchapter by printing on the shipping papercontaining the required shipping description one ofthe certifications set forth in this part. k. Section 172.204(c)(2) in that UPS offered a hazardous material to an aircraft operator for transportation by air and failed to provide two copies ofthe certification required in this section. I. Section 172.204(c)(3) in that UPS offered for transportation by air a hazardous material authorized for air transportation and failed to add to the certification required in this section the following statement:
a. "I declare that all ofthe applicable airtransport requirements have been met."
m. Section 172.301(a) in that UPS offered for transportation a hazardous materialin a nonbulk packaging and failed to 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 §I72.101 table.
n. Section 

### i72.400(a) in that UPS offered for transportation ahazardous material in one of the packages or containment devices listed in this subpart and failed to label the package orcontainment device with the labels specified for the material in the 

### §172.101 Table and in this subpart.
o. Section 172.600(c)(1) in that UPS offered for transportation a hazardous material and failed to make the emergency response information conforming to this subpart immediately available for use at all times the hazardous material was present.

5p. Section 172.600(c)(2) in thatUPS offered for transportation a hazardous material and failed to make emergency response information includingthe emergency response telephone number, immediately available to any government agency responding to an incident involving hazardous materials orconducting an investigation which involves a hazardous material. q. Section 173.24(b)(l) in that UPS failed to use a package which was designed, constructed, maintained, filled, its contents so limited, and closed, so that under conditions normally incident to transportation, there would be no identifiable (without the use ofinstruments) release ofhazardous material to the environment.

r. Section 173.24(f)(l) in that UPS failed to use a package which had closures so designed and closed that under conditions (including the effects oftemperature and vibration) normally incident to transportation, (i) there would be no identifiable release ofhazardous materials to the environment from the opening to which the closure was applied, and (ii) the closure would be secure and leakproof.
s. Section 173.27(d) in that UPS offered a package fortransportation by air failed to ensure stoppers, corks or othersuch friction-type closures were held securely, tightly and effectively inplace by positive means, and that each screw-type closure on any packaging was secured to prevent closure from loosening due to vibration or substantial change in temperature. t. Section 173.27(e) in that UPS offered apackage for transportation by air and failed to insure that except as otherwiseprovided in this subchapter,-liquid hazardous materials of Class 3, 4, Division 5.1, 5.2 or 6.1, or Class 8that are packaged and offered for transport in glass, earthenware, plastic or metal inner packagings were packaged using absorbent material as follows: a. Packing Group I liquids on passenger aircraft must be packaged using materials capable ofabsorbing the entire contents ofthe innerpackagings. b. Packing Group I liquids on cargo aircraft, and Packing Group 

### !I liquids including Division 5.2liquids on passenger and cargo aircraft, must be packaged using a sufficient quantity ofabsorbentmaterial to absorb the entire contents ofany one ofthe inner packagings containing suchliquids. When the innerpackagings are of different sizes and quantities, sufficient absorbent material must be used to absorb the entire contents ofthe inner packaging with the greatest volume ofliquid. c. When absorbent materials are required and the outerpackaging is not liquid tight, a means ofcontaining the liquid in the event ofa leakage must be provided in the form ofa leakproofliner, plastic bag or other equally efficient means of containment. d. Absorbent material must not react dangerously with the liquid (see §§ 173.24 and 173.24a.). e. Absorbent material is not required ifthe innerpackagings are so protected that they are unlikely to break and leak their contents from the outer packaging under normal conditions oftransportation.

6u. Section 173.202 in that UPS offered for transportation a package containing liquid hazardous material in Packing Group II when 

### §172.10I ofthis subchapter specified that it be packaged under this section and failed to use non-bulk packagings prescribed in this section conforming to the general packaging requirements ofsubpart B ofpart 173, to the requirements ofpart 178 ofthis subchapter at the Packing Group I or II performance level (unless otherwise excepted), and to the requirements ofthe special provisions ofColumn 7 ofthe 

### §172.101 Table. In accordance with Section 5123(a) ofTitle 49 ofthe United States Code (Transportation) (49 U.S.C. 

### §5123(a)), UPS is liable for a civil penalty ofnot less than $250 ($450 for training violations), nor greater than $55,000 ($110,000 ifdeath, serious illness, severe injury, or substantial property damage results), for each violation ofthe Department ofTransportation Hazardous Maierials Regulations. Afterreviewing our investigative file, we propose to assess a civil penalty in the amount of$33,000 for these violations.
Enclosed is information on UPS's options in responding to this Notice. The options include participating in an informal conference with an FAA attorney, and submission ofinformation to the FAA for consideration. UPS must submit, in writing, its choice ofthe alternatives explained on the enclosed information form, on orbefore 30 days after UPS receives this Notice. IfUPS fails to submit its choice within that time, UPS will have no further right to participate in the informal procedures. COUNTTWO I. On or about March 13,2013, United Parcel Service Co. ("UPSCO") or its agent(s) knowingly accepted a specification fiberboard box ("shipment) containing hazardous materials for transportation which was offered as acceptable for transportation aboard an aircraft. 

### 2. a. UPSCO is an air carrier. b. UPSCO possesses an FAA Air Carrier Operating Certificate (IPXA 097B). 3. The above-mentioned shipment was assigned UPS 3-Day Select tracking number/air waybill number lZ 617-489-12-6033-7371. 4. The above-described shipment was offered by VetteSupply.com, 6678 E. Weld Park, Stillman Valley, IL 61084 for air transportation to the consignee, 7717 Eagle Ridge Dr., San Diego, CA 61084. 5. On or about March 13, 2013, employees at the UPS sort facility in Louisville, Kentucky discovered the shipment leaking.

76. The above-mentioned shipment contained four !-gallon metal containers ofGM Vehicle Care Black Reconditioning Paint (with metal lids), marked "DANGER! FLAMMABLE LIQUID AND VAPOR": 7. The fiberboard box described in paragraph I was marked "Consumer Commodity, ORM-D". 8. At all times mentioned herein, the shipment was not accompanied by a Shipper's Certification orDeclaration ofDangerous Goods.

·9. a. GM Vehicle Care Black Reconditioning Paint is classified as a hazardous material under·the Department ofTransportation Hazardous Materials Regulations (HMR) (49 C.F.R. § 172.101). b. The proper shipping name ofGM Vehicle Care Black Reconditioning Paint is "Paint". Itis in Hazard Class 3 (Flanunable Liquid), Packing Group II, and has an assigned identification number ofUNI219. The proper label is FLAMMABLE LIQUID. I0. UPSCO accepted the above-described shipment ofhazardous material for transportation by air when it was not:
a. described and certified on a shipping paper, b. offered with shipping papers prepared in duplicate,
c. Marked "ORM-D-Air" or with a "Y" limited quantity marking (See 49 C.F.R. §172.315, d. Labeled "FLAMMABLE LIQUID". II. UPSCO accepted the above-described shipment ofhazardous material for transportation when it was not properly packaged for air transportation. By reason ofthe above, UPSCO violated the following Department ofTransportation Hazardous Materials Regulations (Title 49 ofthe Code ofFederal Regulations):
a. Section 175.3 in that UPSCO accepted for transportation or transported aboard an aircraft a hazardous material that was not prepared for shipment in accordance with this subchapter. b. Section 175.30(a) in that no person may accept a hazardous material for transportation aboard an aircraft unless the aircraft operator ensures the hazardous material is: (I) Authorized, and is within the quantity limitations specified for carriage aboard aircraft according to §172.10I ofthis subchapter or as otherwise specifically provided by this subchapter.

8(2) Described and certified on a shippingpaperprepared in duplicate in accordance with part 172 ofthis subchapter or as authorized by subpart C ofpart 171 ofthis subchapter. See §175.33 for shipping paperretention requirements; (3) Marked and labeled in accordance with subparts D and E ofpart 172 or as authorized by subpart C ofpart I71ofthis subchapter, and placarded (when required) in accordance with subpart F ofpart 172 ofthis subchapter; and In accordance with Section 5123(a) ofTitle 49 ofthe United States Code (Transportation) (49 U.S.C. § 5123(a)), UPSCO is liable for a civil penalty ofnot less than $250 ($450 for training violations), nor greater than $55,000 ($110,000 if death, serious illness, severe injury, or substantial property damage results), for each violation of the Department of Transportation Hazardous Materials Regulations. After reviewing our investigative file, we propose to assess a civil penalty in the amount of$32,500 for these violations.
Enclosed is information on UPSCO's options in responding to this Notice. The options include , participating in an informal conference with an FAA attorney, and submission ofinformation to the FAA for consideration. UPSCO must submit, in writing, its choice of the· alternatives explained on the enclosed information form, on or before 30 days after UPSCO receives this Notice. IfUPSCO fails to submit its choice within that time, UPSCO will have no further right to participate in the informal procedures. · RANDY E. HYMAN REGIONAL COUNSE1#:, 

# fo-bf**~ ~"2:1** **By:~** JAMES H. DUNFEE, 

### JR. Attorney Office ofthe Regional Counsel Enclosures: Information Sheet Reply Form FAR 13.16 and Subpart G ofPart 13

9CERTIFICATE OF SERVICE I hereby certify that the foregoing Notice ofProposed Civil Penaltyhas been sentby certified mail, return receipt requested, and regular mail.to: David D. Scott or President United Parcel Service, Inc. Principle Office 55 Glenlake Parkway NE Atlanta, GA 30328 Mitchell R. Nichols or President United Parcel Service Co. (Air) Principle Office 55 Glenlake Parkway NE Atlanta, GA 30328 Mitchell R. Nichols or President .United Parcel Service Co. (Air) 1400 Hurstborne Parkway Louisville, KY 40223 United Parcel Service Co. (Air) CSC-Lawyers Incorporating Service Company,Agent For Service 421 West Main St. Frankfort, KY 4060I United Parcel Service Co. (Air) Corporation Service Company,Agent For Service 40 Technology Parkway Southsuite 300 Norcross, GA 30092

Program Analyst Office ofthe Regional Counsel 

## MAR 1-1

**2015~** Dated

10

## EXHIBIT255 Glenlake Parkway, NE Atlanta, GA 30328-3474 April2, 2013 Mr. Stanley D. Satchell Manager Memphis Security Field Office FederalAviationAdministration 2847 Business ParkDrive- Building

### J Memphis, 11'-! 38118 Re: 2013S0700189 DearMr. Satchell: Irespondto yourMarch 26, 2013 Letter oflnvestigationissued inthe case identified above. You allege thatUPS, Inc. (the UPS Small Package ground operations company) offered a package marked Consumer commodity, ORM-D to UPSCO (the UPS Airline). The package in question was assigned the tracking number 1Z6174891260337371, andhadbeen oiiered inUPS 3 DaySelect Service. The shipper and consignee for the packagewere as follows: Shipper: Melrose T-Top 100 W. EllwalkDrive Cortland, lL 60112 Consignee: Mharned Ashani 7717 Eagle Ridge Drive SanDiego, CA 92119 UPS acknowledges thatthe shipper offeredthepackagemarked Consumer commodity, ORM-D, contraryto requirements for 3 Day Select Service. As a service that may use air transportationin. order to accomplish its time-in-transit, 3 Day Select Service requires packages to bepreparedin a condition suitable for airtransport. The shipper's offering ofa Consumer commodity, ORM-D inthis service was clearlynot in compliance with UPS's expectations for its customers. However, contraryto the allegations in tbis case, UPS, Inc. did not violate the Hazardous Materials Regulations inits handling ofthepackage.Package Movement Thepackage in question moved at all timesthroughtheUPS, Inc. ground operations. Itwas pickedup from the shipper on March 13, 2013 and loaded atthe UPS DeKalb, IL Centerto move bytractor-trailer, in a ground load containingpackages ofvarious service levels, to the UPS Chicago AreaConsolidationHub (CACH). At CACH, the package was again sortedandloaded into a tractor-trailer, this time for the UPS WorldPort Hub in Louisville. As they were unloading the trailer onMarch 14, employees atWorldPort identifiedthe release from the package in question andreported itcorrectlythrough UPS management. As stated onthe DOT Hazardous Materials IncidentReport (Form 5800.1) filed for this package, the release was detected inthe hub'sNorth CoreFeederUnload area. Thepackage was removed from transportationfor processing intheUPS DamagedMaterials Program. A Question ofOffering for Flight The infonnation about the movement ofthepackage demonstrates that at no time was the package loaded for flight ormoved aboard an aircraft. FAA alleges that in its processing ofthe shipment, UPS, Inc. violatedthe HMRby oiTering the packageto UPSCO, the UPS Airline. However, no such offering tookplace, so there could beno suchviolation ofthe HMR. Itis true that employees in WorldPorthandled the package, as theyunloadedthe trailer and determinedthatthe package in questionhad released ahazardous material. Butit is also true that those employees work for UPS, Inc., the ground company, not UPSCO. The WorldPort Hub is notrestrictedto the movement ofpackages by air. Rather, it is a complex, multi-modal operation where packages could arrive either by air or ground, and departby eithermode. The mere presence ofthe package inthe WorldPort operation does not constitute an offering ofthe shipment for air transport. In other cases before the FAA, UPS has demonstrated that an offering for flight (i.e., an offering byUPS, Inc. to UPSCO) occurs when one oftwo conditions is met:

• For a hazardous materials with shipping papers, the packagehas beenreviewedby an Acceptance Auditor and approved for movementthroughtheUPS system- including the air system where service level and delivery requirements so dictate. Acceptance Auditor personnel, typically employees ofUPS, Inc., act as agents ofUPSCO inperformingthis inspection and approval.

• For packages that are not accompanied by a hazardous materials shipping paper, acceptance occurs when an air loader, acting as an agent ofUPSCO, loads a package into an aircraft ULD.

2Inthis case, neitherprocess ofoffering occurredwiththepackage in question. Itwas unloaded fromthe inboundtrailer, found to be leaking, takenout oftransportation as amarkedhazardous materials package damagedintransportation, and reported viaDOTForm 5800.1. Quite simply, the allegation inthe March26 LOI cannotbe true, as the package was never loaded into an aircraft ULD. Itwas never sortedto an appropriate loadingposition, and never evenhandled by an 

### air loader. The conditions thatrepresent an offering to the UPS Airline -i.e., the loading into an aircraft ULD

- simply did not arise withthepackage in question. Screening Packages for Compliance As explained inprevious correspondence with FAA, UPS accomplishes its integrated services throughthe coordination ofcompanies that work together to provide services required by its customers. UPS implements a repetitive, overlapping series ofhazardous materials checks on packages that is designed to capture and remove non-compliant shipments. These checks are most intense for packages offered in services that could require airtransport, andthe intensity of those checks is at its highest as packages approach an 

### airloading location. Thus, hazmat screeningprocedures are inplace for the loading oftrailers from CACHto WorldPort, but additional checks occur whenthose packages are receivedin theWorldPortoperation. Under different circumstances, had the package inquestion notleaked, butinsteadhad it actuallybeen sorted to an outboundloadingposition for an aircraft ULD, the loaders would have beenrequired to perform a six-sided checkonthepackage to search for inappropriate marks orlabels. The ORM-D marking onthe package inquestionis expectedto be found andrejectedby any air loader. NotwithstandingUPS's position regarding the alleged violation, UPS undertook corrective follow-up actions in CACH and at the origin, to reviewthe shipper's failure to complywiththe UPS expectations for packages offered for 3 Day Select Service, andto reviewthe needto reject packages displaying ORM-D markings in3 Day Select or any other service level that couldbe loaded for flight. A UPS representative reviewedthe facts inthis case with arepresentative of the shipper onApril I, 2013. Hub employees at CACH are also receiving reviews ofthe requirementnotto load ORM-D packages destinedfor WorldPort. Those reviews are intended to correctthe shipper's misunderstanding oftherequirements for 3 Day Selectpackages, andto keep UPS, Inc. employees, including CACH loaders, alert for non-compliantpackages. Conclusion UPS values FAA's contributionsto aviation safetythrough its enforcement ofthe Hazardous Materials Regulations. Inthe current case, however, UPS, Inc. believes that FAAmay have misinterpreted the facts, and as aresult, made inaccurate allegations. While it is correctthatthe
3shipperinvolved did offer a packagethatwas out ofcompliance withthe requirements for UPS 3 Day Select Service, the handling ofthe packagenever violatedthe Hazardous Materials Regulations.

• At all times, thepackage was transported bymotor vehicle. As a Consumer commodity, ORM-D, the package does notrepresent a violationwhen so transported.

• At all times, the package washandled by employees ofUPS, Inc., the UPS ground company.

• Atno time was the package offered for flight. Thepackage was taken out of transportation after unloading from the trailer that carried it to Louisville. Itwas never advancedto anaircraft ULD loadingposition, and itwas never loaded into any ULD. UPS recognizes thatthepackage was not offered to UPS, Inc. in a condition suitable for air transport. Corrective follow-up actions at origin andthe intem1ediate hub involvereviewing the detectable errors with the shipper andthose employees who processedthe shipment. However, UPS believes thatit is criticalthatFAAunderstandthatinits efforts to operate UPSCO atthe highest level ofcompliance, UPS has designed a sequence ofoverlapping checks, involving multiple UPS organizations and operations, focusing on hazmat compliance for packages that are to be loadedfor flight - a sequence thatincreases in intensity as packages approach the point at whichtheywouldbe offered for flight. UPS believes thatFAA should recognize those efforts and understand that, even as these "ground" operations happen withintheWorldPort facility, the screening activities reinforce the goals UPS shares withFAA- i.e., aviation safety and compliance. Accordingly, inthis case, UPS, Inc. did notviolate theHMR. Werespectfully request thatFAA close this case without a finding ofviolation againstUPS, Inc. or any UPS company.

# Dx_~() SamuelS. Elkind Corporate Regulated Goods Manager Enclosure: DOTForm5800.1 dated March 19, 2013

4

## EXHIBIT 3U.S. Department OfTnmsponation .Federal Aviation Administration Joint Security and Hazardous Materials Safety Office

O:RTIFIEU MAIL RETURN RECEIPT REQUESTEU FAACase No: 20IIS0700519 Mr. Robert lv1cClell!md United Parcel Service 6406 Grade Lane Louisville, KY 40213 Dear Mr. McClelland: 1701 Columbia Ave., Suite 420 College Pnrk,GA 30337

The Federal Aviation Administration (FAA) has completed our investigation into your alleged failure to comply with the provisions ofTitle 49 Code offederal Regulations (49 CFR). On June 8, 2011, a package marked with a Consumer Commodity, ORl'vlcD marking was accepted by United Parcel Scrvke on tracking number lZ 657 414 12 4821 4276. While there were hazardous material markings visible on the exteriorofthe packaging, no Shipper's Declat·ation for Dangerous Goods or any other hazardous material paperwork accompanied the shipment. The package was discovered to contain hazard<ms materials and was accepted for transportation without the required documentation. In a follow-up correspondence from Mr. Robert W. Cogetl, Air Dangerous Goods Compliance Manager, Unrtcd Parcel Service, he explained that the integrated operating

**stm~iure** of United Parcel Service (UPS) includes UPS, Inc, (ground transportation) aud UPS Co. (air transportation). UPS, Inc. is a DOTregulated lrucktng -.;ompany vdtich perfonns ground transpotiation aud

**lend(;r~** packages to UPS Co., an FAA-wrtifkatod air carrier. The package was transported in the ground transportation system and had not been-accepted into or entered the air network. Based on this explanation, we arc closing this case with no action.

- Sincerely,

Deborah G. Kennedy Manager Atlanta Security Field OfticelJ.S. Department OfTransportation Federal Aviation Administration Joint Security and Haza1·dous Materials Safety Oflicc

CERTU'IEDMAIL RETURN RECEIPTREQUESTED FAA Case No: 2012S0700063 Mr. Robert McClelland lJnired Parcel Service 6406 Grade Lane Louisville, KY 40213 Dear Me McClelland: (/. Cl/ll 

## 02 /2

1701 ColumbiaAve., Suite 420 Col!ege .Park, GA 30337

The Federal Aviation Administration (FAA) has completed our investigation into your alleged failure to complywith the provisions ofTitle 49Code ofFederal Regulations (49 CFR). On November 15, 20l 

### t, a package marked with a Consumer Commodity, ORM-D marking was accepted by United Parcel Service on tracking number IZ OWX6930293448887. While there were hazardous material markings visible on the exterior of the packaging, no Shipper's Declaration for Dangerous Goods or any other hazardous material paperwork accompanied the shipment. The package was discovered to contain hazardous materials and was accepted for transportation without the required documentati011. In a fi1llow-up correspondence from i\1r. Robert W. Cogen, Air Dangerous Goods Compliance Manager, United Parcel Service, he explained that the integrated operating structure of United Parcel Service (UPS) includes UPS, Inc, (gnmnd transportation) and UPS Co. (air transporintion). UPS, Ine. is a DOTregulated trucking company which performs ground transportation and tenders packages to UPS Co., an FAA-certificated air carrier. The package was transported in the ground transportation system and had not been accepted into or entered the 11ir network. Based on this explanation, we are closing this case with no action,

Deborah G. Kennedy M'.anager Atlanta Security Field Ofnee

## EXHIBIT4U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS FEDERAL AVIATION ADMINISTRATION

FEDERAL AVIATION ADMINISTRATION, Complainant,
vs. UNITED PARCEL SERVICE COMPANY Respondent.
JUDGE NOT YETASSIGNED FAA DocketNo. Judge

COMPLAINT The FederalAviationAdministration (FAA), by counsel, hereby files its Complaint, pursuant to Rule 208 ofthe Rules ofPractice (14 C.P.R. 13.208), and states as follows: 

### I. 2

OnFebruary 10, 2016, Respondent, United Parcel Service Company was advised through aFinal Notice ofProposed Civil Penaltythatthe FAA proposedto assess a civil penalty in the amount of$3,250. OnMarch 3, 2016, the Agency Attorney received a written request for ahearing from the Respondent. 

### II. I. On or about September 7, 2012, United Parcel Service, Inc. ("UPS") or its agent knowingly offered, for transportation by air, a specification fiberboard box containing hazardous materials ("shipment") that was natproperlyprepared for air transportation. 2. The above-mentioned shipment was assigned UPS 2nd DayAir tracking number/air waybill number 1ZEW7 552 02 3005 7775. The shipment was originally offered by Lambert Vet Supply, 714 5th Street, Fairbury, NE 68352, forair transportationto the consignee, Petsmart Inc., 7650 W. Latham Street, Phoenix, AZ 85043. 3

3. Onor about September 10, 2012, employees atthe UPS sortfacility inLouisville, Kentucky discovered the shipment leaking. 4. The above-mentioned shipment contained six 8.5-ounce plastic containers of Merial, Frontline (Fipronil) Spray for Dogs (with sprayer-cap tops). 5. Furtl1er investigation showed one ofthe plastic containers leaked approximately 8 ounces ofthe above-described material into and through above-mentioned fiberboard box. 6. The fiberboard box described above was marked "Consumer Commodity, ORMD". 7. At all times mentioned herein, the shipment was not accompanied by a Shipper's Certification or Declaration ofDangerous Goods. 8. a. Merial, Frontline (Fipronil) Spray for Dogs is classified as a hazardous material under the Department of Transportation Hazardous Materials Regulations (HMR) (49 C.F.R. § 172.101). b. The proper shipping name of Merial, Frontline (Fipronil) Spray is Isopropanol (Isopropyl Alcohol). It is in Hazard Class 3 (Flammable Liquid), Packing Group II, and has an assigned identification number of UN1219. The proper label is FLAMMABLE LIQUID.
c. Ifproperly packaged for air transportation pursuant to 49 C.F.R. 

### § 173.27 the above-described material could have been renamed Consumer Commodity andreclassed as ORM-D-Air. 9. UPS offered the above-described shipment of hazardous material for transportation by air without shippingpapers that included: (a) the assigned identificationnumber prescribed for each hazardous material; (b) the proper shipping name prescribed for eachhazardous material; (c) the hazard class prescribed for each hazardous material; (d) the packing group prescribed for each hazardous material; (e) the total net mass per package ofeach hazardous material; and, (f) the number and type ofpackages containing hazardous material.10. UPS offered the above-described shipment ofhazardous material for transpottation by air and failed to: (a) certifythat the materials were in accordance withthe HMR (49 C.F.R. §§ 171, et seq.) byprinting onthe shippingpapers the certification set forth in§ 172.204(a)(1), 172.204(a)(2), or § 172.204(c) ofthe HMR; (b) preparethe required certifications in duplicate; and, (c) add to the certification required in this section the following statement: "I declare that all ofthe applicable air transport requirements have been met." 11. UPS offered the above-described shipment ofhazardous materials for transportation by air when: 4

(a) the outer container was not marked with the proper shipping name ofeach hazardous material contained therein; (b) the outer container was notmarked withthe assigned identification number ofeachhazardous material containedtherein; (c) a '0 RM-D-AIR" marking was not on the outer container. (d) a "FLAMMABLE LIQUID" label was not affixed to the outer container.
III. 21. As aresult, UPS violated the following sections ofthe FederalAviation Regulations: (a) 49 C.F.R. 

### § 171.2(b) in that UPS offered a hazardous material for transportation in commerce and failed to comply with all applicable requirements ofthis subchapter, or au exemption or special permit, approval, orregistration issued under this subchapter or under subchapter A ofthis chapter. There maybe more than one offeror ofa shipment ofhazardous materials. Each offeror is responsible for complying withthe requirements ofthis subchapter, or an exemption or special permit, approval, orregistration issued under this subchapter or subchapter A ofthis chapter, with respect to any pre-transportation function that it performs or is required to perform; however, each offeroris responsible onlyfor the specific pre-transportation functions that it performs or is required to perform, and each offeror may rely on information provided by another offeror,5
unless that offerorknows or, areasonable person, acting inthe circumstances and exercising reasonable care, would have knowledge that the information provided by the other offeror is incorrect. (b) 49 C.F.R. 

### § 171.2(e) in thatUPS offered or accepted ahazardous material for transportation incommerce whenthe hazardous material was notproperly classed, described,packaged, marked, labeled, and in condition for shipment as required or authorized by applicable requirements ofthis subchapter, or an exemption, approval, or registration issued under this subchapter or under subchapterA ofthis chapter. (c) 49 C.F.R. 

### § 171.2(£) in thatUPS transported ahazardous material in commerce and failed to transport it inaccordance with applicable requirements of this subchapter, or an exemption or special permit, approval, or registration issued under this subchapter or subchapter A ofthis chapter. Each carrier who transports a hazardous material in commerce may rely on information provided by the offeror ofthe hazardous material or a prior carrier, unless the carrier knows or, a reasonable person, acting inthe circumstances and exercisingreasonable care, wouldhave knowledge that the informationprovided by the offeror or prior carrier is incorrect. 22. In accordance with Section 5123(a) ofChapter 51, Title 49 ofthe United States Code ofTransportation, [49 U.S.C. Section 5123(a)], United Parcel Service, Inc. is liable for a civilpenalty ofnot less than $450 for training violations, nor greater than $75,000, for eachviolation ofthe regulations ($175,000 ifdeath, serious illness, severe injury, or substantial property damage results). After reviewing all ofthe informationcontainedin our investigative file, we propose to assess a civil penalty inthe amount of$3,250.

23. Under the facts and circumstances ofthis case, a civil penalty of$3,250 is appropriate. WHEREFORE, the Agency, by counsel respectfully requests that the Administrative Law Judge enter an order that Respondent be assessed a civil penalty in the amount of$3,250. 

# q!' L Respectfully submitted this day ofMarch, 2016.

tRYaDLanders

Attorney Enforcement Division,,Southern TeamPLEASE NOTE: Pursuantto Title 14 CPR Section 13.209(a), you are required to file a written answer to this Complaint, or a written Motion to Dismiss ifappropriate, not laterthan 30 days after the date showri onthe Certificate ofService which follows.
CERTIFICATE OF SERVICE I hereby certify that a copy ofthe foregoing Complainthas been mailed this date by Certified Mail, Return ReceiptRequested, to the following: Hearing Docket Federal Aviation Administration 800 Independence Avenue, SW Washington, DC 20591

Attn: Hearing Docket Clerk, AGC-430 Wilbur WrightBuilding- Suite 2W1000 Winston E. Miller FrostBrown ToddLLC 400 WestMarket Street, 32"d Floor Loui ville, KY

Program Analyst 

## MAR ' i

## 9 2016} Dated original and I copy 6

## EXHIBITSU.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS FEDERAL AVIATION ADMINISTRATION

FEDERALAVIATION ADMINISTRATION, Complainant,
vs. UNITED PARCEL SERVICE COMPANY Respondent.
JUDGENOT YET ASSIGNED FAADocketNo. Judge

COMPLAINT The Federal AviationAdministration (FAA), by counsel, hereby files its Complaint, pursuantto Rule 208 ofthe Rules ofPractice (14 C.F.R. 13.208), and states as follows: I. 2

On February I0, 2016, Respondent, UnitedParcel Service Companywas advised through a Final Notice ofProposed Civil Penalty thatthe FAAproposed to assess a civil penalty 

### in the amount of$16,250. On March 3, 2016, the Agency Attorney received a written request for a hearing from the Respondent. 

### II. 1. During the week of June 20-24, 2011, representatives of the Administrator conducted a hazardous materials inspection at the United Parcel Service ("UPS") sort facility at the Louisville International Airport in Louisville, Kentucky. 2. During observation of the UPS hazardous materials acceptance process, the representatives discovered five (5) improperly prepared shipments.3 

### Shipment #1 3. Shipment #1, a fiberboard box, assigned UPS tracking number IZ 316 496 02 5346 9395, was offered for 2nd Day Air Service by Frontier Supply Company, Fairbanks, Alaska. 4. The box was marked "Dangerous Goods in Apparatus, UN3363." 5. A Class 9 label was affixed to the box. 6. A Shipper's Certification or Declaration ofDangerous Goods did not accompany the shipment. Shipment #2 7. Shipment #2, a fiberboard box, assigned UPS tracking number lZ 428 507 02 9759 4006, was offered for 2nd Day Air Service by Haviland Consumer Products, Walker, Michigan. 8. A Class 9 label was affixed to the box. 9. A Shipper's Certification or Declaration ofDangerous Goods did not accompany the shipment. Shipment #3 10. Shipment #3, a fiberboard box, assigned UPS tracking number lZ F66 94E 02 4458 1816, was offered for 2"ct Day Air Service by Coutee, Duncan, South Carolina. II. The box was marked "Consumer Commodity, 108000, Packaging Instruction Y963." 12. A Class 9 label was affixed to the box. 13. A Shipper's Certification or Declaration ofDangerous Goods did not accompany the shipment. Shipment #4 14. Shipment #4, a fiberboard box, was assigned UPS tracking number IZ OOX W40 89 6587 3720, was offered for 3-Day Select Service by Healthcare Solutions, Phoenix, Arizona. 15. The box was marked "Methyl Methacrylate Monomer, Stabilized, UN1247, Limited Quantity." 16. A Class 3 label was affixed to the box.4


### 16. A Class 3 label was affixed to the box.

Shipment#5 17. Shipment #5, a fiberboard box, was assigned UPS tracking number lZ 7VO Y45 38 1001 7262, was offered for 2nd Day Air Service by Philips Medical SPS, Louisville, Kentucky. 18. ·Thebox was marked "Lithium Batteries, UN3090." 19. Class 9 and CARGO AIRCRAFT ONLY labels were affixed to the box. 20. UPS in its capacity as afreight forwarder, offered the above shipments of hazardous materials for transportation aboard aircraft when the hazardous materials were not properly described on a shippingpaper.



### III. 21. As a result, UPS violated the following sections ofthe Federal Aviation Regulations: (a) Section 171.2(e) in that UPS offered a hazardous material for transportation in commerce when the hazardous material was not properly classed, described, packaged, marked, labeled, and in condition for shipment. (b) Section 175.3 in that UPS offered hazardous material for transportation aboard an aircraft when the hazardous material was not prepared for shipmentin accordance with this subchapter.
22. Pursuant to 49 U.S.C. Section 5123(a), UPS is subject to a civil penalty not lower than $250 ($450 for training-related violations), nor greater than $55,000 ($110,000 if death, serious illness, severe injury, or substantial property damage results), for each violation of the Department of Transportation Hazardous Materials Regulations.23. Under the facts and circumstances 

### ofthis case, a civil penalty of$16,250is appropriate. WHEREFORE, the Agency, by counselrespectfully requests that the Administrative Law Judge enter an order thatRespondentbe assessed a civil penalty in the amount of$16,250. Respectfully submittedthis 

# q.fl. day ofMarch, 2016.



# ~~/ **~ /~**  **;+Por~y** Andrea



# Mi~arper Senior Attorney Enforcement Division, Southern Team PLEASE NOTE: Pursuantto Title 14 CFR Section 13.209(a), you are required to file a written answer to this Complaint, or a written Motion to Dismiss ifappropriate, not later than 30 days after the date shown on the Certificate ofService which follows. 5CERTIFICATE OF SERVICE I hereby certifythat a copy ofthe foregoing Complainthas been mailed this date by Certified Mail, ReturnReceipt Requested, to the following: Hearing Docket Federal Aviation Administration 800 Independence Avenue, SW Washington, DC 20591

Attn: Hearing Docket Clerk, AGC-430 Wilbur WrightBuilding- Suite 2Wl000 Winston E. Miller FrostBrownTodd LLC 400 West Market Street, 32nd Floor Louisville, KY



## .MAR I 

## 9 2016- Dated original and l copy 6