U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

FEDERAL AVIATION 

ADMINISTRATION 

Complainant, 

v. 

UNITED PARCEL SERVICE CO. 

Respondent. 

WASHINGTON, DC 

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APR\ 5 20\6 

HEARING DOCKET 

Docket No. FAA-2016-4261 

Case No. 20l3S0700189 

ALI I.E. Sullivan 

DECLARATION OF PAUL ALP 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 of Columbia, declare as 

follows: 

1. I am an attorney with the law firm Crowell & Moring, LLP, one of the 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 of the Notice of Proposed Civil Penalty in FAA Case No. 

20l3S0700189 dated March 11,2015 is attached as Exhibit l. 

3. A true and correct copy of a 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 

Docket No. 2015-3320 is attached as Exhibit 4. 

6. A true and correct copy of the FAA Complaint dated March 9, 2016 in FAA 

Docket No. 2016-4262 is attached as Exhibit 5. 

I declare under penalty of perjury that the foregoing is true and correct. Executed on April 15, 

2016. 

Paul Alp 

- 2-
EXHIBIT 1 
U.S. Department Southern Region 

of Transportation Office of the 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 OF PROPOSED 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 air transportation. 

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. Ell walk 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 of GM 

Vehicle Care Black Reconditioning Paint (with metal lids), marked "DANGER! FLAMMABLE 

LIQUID AND VAPOR". 

7. Further investigation showed one of the metal· containers leaked approximately ]-

gallon of the 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 of Dangerous Goods. 

I 0. a. GM Vehicle Care Black Reconditioning Paint 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 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 FLAMMABLE LIQUID. 

c. If properly 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 number prescribed 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 of each hazardous material; and, 

(f) the number and type of packages containing hazardous material. 

12. UPS offered the above-described shipment of hazardous 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) of the 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' of the applicable air transport requirements have 

been met." 

13. UPS offered the above-described shipment of hazardous materials for 

transportation by air when: 

(a) the cuter container was not marked with the proper shipping name of each 

hazardous material contained therein; 

(b) the outer container was not marked with the assigned identification 

number of each 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 of hazardous 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 of hazardous material for· 

transportation by air and failed to make an emergency response telephone number immediately 

available to the appropriate official person designated to respond to an incident involving a 

hazardous material, or who was conducting an investigation involving a hazardous material. 

16. UPS offered the above-described shipment of hazardous 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 of hazardous material to the environment. 

17. UPS offered the above-described shipment for transportation by air . when the 

above-described package was not properly packaged for air transportation. 

By reason of the above, UPS violated the following Department of Transportation Hazardous 

Materials Regulations (Title 49 of the Code of Federal Regulations): 

3 
a. Section 171.2(b) in that UPS offered a hazardous material for transportation in commerce 

and failed to comply with all applicable requirements of this subchapter, or an exemption 

or special permit, approval, or registration issued under this subchapter or under 

subchapter A of this chapter. There may be more than one offeror of a shipment of 

hazardous materials. Each offeror is responsible for complying with the requirements of 

this subchapter, or an exemption or special permit, approval, or registration issued under 

this subchapter or subchapter A of this 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 information provided by another offeror, unless 

that offeror knows or, a reasonable 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 that UPS offered or accepted a hazardous material for transportation 

in commerce when the hazardous material was not properly classed, described, packaged, 

marked, labeled, and in condition for shipment as required or authorized by applicable 

requirements of this subchapter, or an exemption, approval, or registration issued under 

this subchapter or under subchapter A of this chapter. 

c. Section 171 .2(f) in that UPS transported a hazardous material in commerce and failed to 

transport it in accordance with applicable requirements of this subchapter, or an 

exemption or special permit, approval, or registration issued under this subchapter or 

subchapter A of this chapter. Each carrier who transports a hazardous material in 

commerce may rely on information provided by the offeror of the 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 offeror or. prior carrier is incorrect. 

d. Sections 172.200(a) and 172.202(a)(l) in that UPS offered a hazardous material for 

transportation and failed to describe the hazardous material on shipping papers including 

the identification number prescribed for the material as shown in Column 4 of the§ 

172.10 I 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 of the § 

172.10 I Table. 

f. Sections I 72.200(a) and I 72.202(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 or division number prescribed for the material as shown in Column 3 of 

the§ 172.101 Table. 

4 
g. 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 per package, unless a gross mass is indicated in Columns (9 A) or 

(98) of the§ 172.101 Table in which case the total gross mass per package must be 

shown; or, for Class 7 materials, the quantity of radioactive 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 the hazardous material on shipping papers indicating 

the number and type of packages (for example, "12 drums"). 

J. Sections 172.204(a) or (c)(l) in that UPS offered a hazardous material for transportation 

and failed to certifY that the material was offered for transportation in accordance with 

this subchapter by printing on the shipping paper containing the required shipping 

description one of the 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 of the 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 of the applicable air transport 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 §I 72.101 table. 

n. Section i 72.400(a) in that UPS offered for transportation a hazardous material in one of 

the packages or containment devices listed in this subpart and failed to label the package 

or containment 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. 

5 
p. Section 172.600(c)(2) in that UPS offered for transportation a hazardous material and 

failed to make emergency response information including the emergency response 

telephone number, immediately available to any government agency responding to an 

incident involving hazardous materials or conducting 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 of instruments) release of hazardous 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 of temperature and vibration) 

normally incident to transportation, (i) there would be no identifiable release of hazardous 

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 for transportation by air failed to ensure 

stoppers, corks or other such friction-type closures were held securely, tightly and 

effectively in place 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 a package for transportation by air and failed to 

insure that except as otherwise provided 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 of absorbing the entire contents of the inner packagings. 

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 of absorbent material to absorb the entire contents of any one 

of the inner packagings containing such liquids. When the inner packagings are of 

different sizes and quantities, sufficient absorbent material must be used to absorb 

the entire contents of the inner packaging with the greatest volume ofliquid. 

c. When absorbent materials are required and the outer packaging is not liquid tight, 

a means of containing the liquid in the event of a leakage must be provided in the 

form of a leakproof liner, 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 if the inner packagings are so protected that 

they are unlikely to break and leak their contents from the outer packaging under 

normal conditions of transportation. 

6 
u. Section 173.202 in that UPS offered for transportation a package containing liquid 

hazardous material in Packing Group II when § 172.10 I of this 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 of subpart B of part 173, to the 

requirements of part 178 of this subchapter at the Packing Group I or II performance level 

(unless otherwise excepted), and to the requirements of the special provisions of Column 

7 of the § 172.101 Table. 

In accordance with Section 5123(a) of Title 49 of the United States Code (Transportation) (49 

U.S.C. § 5123(a)), UPS is liable for a civil penalty of not 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 Maierials Regulations. After reviewing 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 of information to 

the FAA for consideration. UPS must submit, in writing, its choice of the alternatives explained 

on the enclosed information form, on or before 30 days after UPS receives this Notice. If UPS 

fails to submit its choice within that time, UPS will have no further right to participate in the 

informal procedures. 

COUNT TWO 

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. 

7 
6. The above-mentioned shipment contained four !-gallon metal containers of GM 

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 or Declaration of Dangerous Goods. 

· 9. a. GM Vehicle Care Black Reconditioning Paint 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 ofGM Vehicle Care Black Reconditioning 

Paint is "Paint". It is in Hazard Class 3 (Flanunable Liquid), Packing Group II, and has an 

assigned identification number ofUNI219. The proper label is FLAMMABLE LIQUID. 

I 0. UPS CO accepted the above-described shipment of hazardous 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. UPS CO accepted the above-described shipment of hazardous material for 

transportation when it was not properly packaged for air transportation. 

By reason of the above, UPS CO violated the following Department of Transportation Hazardous 

Materials Regulations (Title 49 of the Code of Federal 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 § 172.10 I of this subchapter or as otherwise specifically provided by 

this subchapter. 

8 
(2) Described and certified on a shipping paper prepared in duplicate in 

accordance with part 172 of this subchapter or as authorized by subpart C of part 171 of this 

subchapter. See § 17 5.3 3 for shipping paper retention requirements; 

(3) Marked and labeled in accordance with subparts D and E of part 172 or 

as authorized by subpart C of part I 71 of this subchapter, and placarded (when required) in 

accordance with subpart F of part 172 of this subchapter; and 

In accordance with Section 5123(a) of Title 49 of the United States Code (Transportation) (49 

U.S.C. § 5123(a)), UPSCO is liable for a civil penalty of not 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 of information 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. If UPSCO 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 of the Regional Counsel 

Enclosures: Information Sheet 

Reply Form 

FAR 13 .16 and Subpart G of Part 13 

9 
CERTIFICATE OF SERVICE 

I hereby certify that the foregoing Notice of Proposed Civil Penalty has been sent by 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 4060 I 

United Parcel Service Co. (Air) 

Corporation Service Company, Agent For Service 

40 Technology Parkway Southsuite 300 

Norcross, GA 30092 

Program Analyst 

Office of the Regional Counsel 

MAR 1-1 2015~ 

Dated 

10 
EXHIBIT2 
55 Glenlake Parkway, NE 

Atlanta, GA 30328-3474 

April2, 2013 

Mr. Stanley D. Satchell 

Manager 

Memphis Security Field Office 

Federal Aviation Administration 

2847 Business Park Drive- Building J 

Memphis, 11'-! 3 8118 

Re: 2013S0700189 

Dear Mr. Satchell: 

I respond to your March 26, 2013 Letter oflnvestigation issued in the case identified above. 

You allege that UPS, 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, and had been oiiered in UPS 

3 Day Select Service. The shipper and consignee for the package were as follows: 

Shipper: 

Melrose T-Top 

100 W. Ellwalk Drive 

Cortland, lL 60112 

Consignee: 

Mharned Ashani 

7717 Eagle Ridge Drive 

San Diego, CA 92119 

UPS acknowledges that the shipper offered the package marked Consumer commodity, ORM-D, 

contrary to requirements for 3 Day Select Service. As a service that may use air transportation in. 

order to accomplish its time-in-transit, 3 Day Select Service requires packages to be prepared in 

a condition suitable for air transport. The shipper's offering of a Consumer commodity, ORM-D 

in this service was clearly not in compliance with UPS's expectations for its customers. 

However, contrary to the allegations in tbis case, UPS, Inc. did not violate the Hazardous 

Materials Regulations in its handling of the package. 
Package Movement 

The package in question moved at all times through the UPS, Inc. ground operations. It was 

picked up from the shipper on March 13, 2013 and loaded at the UPS DeKalb, IL Center to move 

by tractor-trailer, in a ground load containing packages of various service levels, to the UPS 

Chicago Area Consolidation Hub (CACH). At CACH, the package was again sorted and loaded 

into a tractor-trailer, this time for the UPS WorldPort Hub in Louisville. As they were unloading 

the trailer on March 14, employees at WorldPort identified the release from the package in 

question and reported it correctly through UPS management. As stated on the DOT Hazardous 

Materials Incident Report (Form 5800.1) filed for this package, the release was detected in the 

hub's North Core Feeder Unload area. The package was removed from transportation for 

processing in the UPS Damaged Materials Program. 

A Question of Offering for Flight 

The infonnation about the movement of the package demonstrates that at no time was the 

package loaded for flight or moved aboard an aircraft. FAA alleges that in its processing of the 

shipment, UPS, Inc. violated the HMR by oiTering the package to UPSCO, the UPS Airline. 

However, no such offering took place, so there could be no such violation of the HMR. 

It is true that employees in W orldPort handled the package, as they unloaded the trailer and 

determined that the package in question had released a hazardous material. But it is also true that 

those employees work for UPS, Inc., the ground company, not UPSCO. The WorldPort Hub is 

not restricted to the movement of packages by air. Rather, it is a complex, multi-modal 

operation where packages could arrive either by air or ground, and depart by either mode. The 

mere presence of the package in the W orldPort operation does not constitute an offering of the 

shipment for air transport. 

In other cases before the FAA, UPS has demonstrated that an offering for flight (i.e., an offering 

by UPS, Inc. to UPSCO) occurs when one of two conditions is met: 

• For a hazardous materials with shipping papers, the package has been reviewed by an 

Acceptance Auditor and approved for movement through the UPS system- including the 

air system where service level and delivery requirements so dictate. Acceptance Auditor 

personnel, typically employees of UPS, Inc., act as agents ofUPSCO in performing this 

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 of UPS CO, loads a package into 

an aircraft ULD. 

2 
In this case, neither process of offering occurred with the package in question. It was unloaded 

from the inbound trailer, found to be leaking, taken out of transportation as a marked hazardous 

materials package damaged in transportation, and reported via DOT Form 5800.1. Quite simply, 

the allegation in the March 26 LOI cannot be true, as the package was never loaded into an 

aircraft ULD. It was never sorted to an appropriate loading position, and never even handled by 

an air loader. The conditions that represent an offering to the UPS Airline -i.e., the loading into 

an aircraft ULD - simply did not arise with the package in question. 

Screening Packages for Compliance 

As explained in previous correspondence with FAA, UPS accomplishes its integrated services 

through the coordination of companies that work together to provide services required by its 

customers. UPS implements a repetitive, overlapping series of hazardous 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 air transport, and the intensity of 

those checks is at its highest as packages approach an air loading location. Thus, hazmat 

screening procedures are in place for the loading of trailers from CACH to W orldPort, but 

additional checks occur when those packages are received in the WorldPort operation. Under 

different circumstances, had the package in question not leaked, but instead had it actually been 

sorted to an outbound loading position for an aircraft ULD, the loaders would have been required 

to perform a six-sided check on the package to search for inappropriate marks or labels. The 

ORM-D marking on the package in question is expected to be found and rejected by any air 

loader. 

Notwithstanding UPS's position regarding the alleged violation, UPS undertook corrective 

follow-up actions in CACH and at the origin, to review the shipper's failure to comply with the 

UPS expectations for packages offered for 3 Day Select Service, and to review the need to reject 

packages displaying ORM-D markings in 3 Day Select or any other service level that could be 

loaded for flight. A UPS representative reviewed the facts in this case with a representative of 

the shipper on April I, 2013. Hub employees at CACH are also receiving reviews of the 

requirement not to load ORM-D packages destined for WorldPort. Those reviews are intended 

to correct the shipper's misunderstanding of the requirements for 3 Day Select packages, and to 

keep UPS, Inc. employees, including CACH loaders, alert for non-compliant packages. 

Conclusion 

UPS values FAA's contributions to aviation safety through its enforcement of the Hazardous 

Materials Regulations. In the current case, however, UPS, Inc. believes that FAA may have 

misinterpreted the facts, and as a result, made inaccurate allegations. While it is correct that the 

3 
shipper involved did offer a package that was out of compliance with the requirements for UPS 3 

Day Select Service, the handling of the package never violated the Hazardous Materials 

Regulations. 

• At all times, the package was transported by motor vehicle. As a Consumer commodity, 

ORM-D, the package does not represent a violation when so transported. 

• At all times, the package was handled by employees of UPS, Inc., the UPS ground 

company. 

• At no time was the package offered for flight. The package was taken out of 

transportation after unloading from the trailer that carried it to Louisville. It was never 

advanced to an aircraft ULD loading position, and it was never loaded into any ULD. 

UPS recognizes that the package was not offered to UPS, Inc. in a condition suitable for air 

transport. Corrective follow-up actions at origin and the intem1ediate hub involve reviewing the 

detectable errors with the shipper and those employees who processed the shipment. However, 

UPS believes that it is critical that FAA understand that in its efforts to operate UPS CO at the 

highest level of compliance, UPS has designed a sequence of overlapping checks, involving 

multiple UPS organizations and operations, focusing on hazmat compliance for packages that are 

to be loaded for flight - a sequence that increases in intensity as packages approach the point at 

which they would be offered for flight. UPS believes that FAA should recognize those efforts 

and understand that, even as these "ground" operations happen within the WorldPort facility, the 

screening activities reinforce the goals UPS shares with FAA- i.e., aviation safety and 

compliance. 

Accordingly, in this case, UPS, Inc. did not violate the HMR. We respectfully request that FAA 

close this case without a finding of violation against UPS, Inc. or any UPS company. 

Dx_~() SamuelS. Elkind 

Corporate Regulated Goods Manager 

Enclosure: 

DOT Form 5800.1 dated March 19, 2013 

4 
EXHIBIT 3 
U.S. Department 

Of Tnmsponation 

.Federal Aviation 

Administration 

Joint Security and Hazardous 

Materials Safety Office 

O:RTIFIEU MAIL RETURN RECEIPT REQUESTEU 

FAA Case No: 20 II S0700519 

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 of Title 49 Code of federal 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 exterior of the 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 Oftice 
lJ .S. Department 

Of Transportation 

Federal Aviation 

Administration 

Joint Security and Haza1·dous 

Materials Safety Oflicc 

CERTU'IED MAIL RETURN RECEIPT REQUESTED 

FAA Case No: 20 12S0700063 

Mr. Robert McClelland 

lJ nired Parcel Service 

6406 Grade Lane 

Louisville, KY 40213 

Dear Me McClelland: 

(/. Cl/ ll 

02 /2 

1701 Columbia Ave., Suite 420 

Col!ege .Park, GA 30337 

The Federal Aviation Administration (FAA) has completed our investigation into your alleged failure to 

comply with the provisions of Title 49 Code of Federal Regulations (49 CFR). 

On November 15, 20 l 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, In e. 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 
EXHIBIT4 
U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

FEDERAL AVIATION ADMINISTRATION 

FEDERAL AVIATION ADMINISTRATION, 

Complainant, 

vs. 

UNITED PARCEL SERVICE COMPANY 

Respondent. 

JUDGE NOT YET ASSIGNED 

FAA Docket No. 

Judge 

COMPLAINT 

The Federal Aviation Administration (FAA), by counsel, hereby files its Complaint, pursuant to 

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

I. 

2 

On February 10, 2016, Respondent, United Parcel Service Company was advised through a Final 

Notice of Proposed Civil Penalty that the FAA proposed to assess a civil penalty in the amount 

of$3,250. On March 3, 2016, the Agency Attorney received a written request for a hearing 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 nat properly prepared for 

air transportation. 

2. The above-mentioned shipment was assigned UPS 2nd Day Air tracking 

number/air waybill number 1Z EW7 552 02 3005 7775. The shipment was 

originally offered by Lambert Vet Supply, 714 5th Street, Fairbury, NE 68352, for 
air transportation to the consignee, Petsmart Inc., 7650 W. Latham Street, 

Phoenix, AZ 85043. 

3 

3. On or about September 10, 2012, employees at the UPS sort facility in Louisville, 

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 of the plastic containers leaked approximately 8 

ounces of the 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 of Dangerous 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. If properly 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 ORM-D-Air. 

9. UPS offered the above-described shipment of hazardous material for 

transportation by air without shipping papers that included: 

(a) the assigned identification number prescribed 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 of each hazardous material; and, 

(f) the number and type of packages containing hazardous material. 
10. UPS offered the above-described shipment of hazardous material for 

transpottation by air and failed to: 

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

171, et seq.) by printing on the shipping papers the certification set forth in§ 

172.204(a)(1), 172.204(a)(2), or § 172.204(c) of the 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 of the applicable air transport requirements have been 

met." 

11. UPS offered the above-described shipment of hazardous materials for 

transportation by air when: 

4 

(a) the outer container was not marked with the proper shipping name of each 

hazardous material contained therein; 

(b) the outer container was not marked with the assigned identification 

number of each hazardous material contained therein; 

(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 a result, UPS violated the following sections of the Federal Aviation 

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 

of this subchapter, or au exemption or special permit, approval, or registration 

issued under this subchapter or under subchapter A of this chapter. There may be 

more than one offeror of a shipment of hazardous materials. Each offeror is 

responsible for complying with the requirements of this subchapter, or an 

exemption or special permit, approval, or registration issued under this subchapter 

or subchapter A of this 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 information provided by another offeror, 
5 

unless that offeror knows or, a reasonable person, acting in the 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 that UPS offered or accepted a hazardous material 

for transportation in commerce when 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 subchapter or under 

subchapter A of this chapter. 

(c) 49 C.F.R. § 171.2(£) in that UPS transported a hazardous material in 

commerce and failed to transport it in accordance with applicable requirements of 

this subchapter, or an exemption or special permit, approval, or registration issued 

under this subchapter or subchapter A of this chapter. Each carrier who transports 

a hazardous material in commerce may rely on information provided by the 

offeror of the 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 offeror or prior 

carrier is incorrect. 

22. In accordance with Section 5123(a) of Chapter 51, Title 49 of the United States 

Code of Transportation, [49 U.S.C. Section 5123(a)], United Parcel Service, Inc. 

is liable for a civil penalty of not less than $450 for training violations, nor greater 

than $75,000, for each violation of the regulations ($175,000 if death, serious 

illness, severe injury, or substantial property damage results). After reviewing all 

of the information contained in our investigative file, we propose to assess a civil 

penalty in the amount of $3,250. 

23. Under the facts and circumstances of this 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 of March, 2016. 

tRYaDLanders 

Attorney 

Enforcement Division,, Southern Team 
PLEASE NOTE: 

Pursuant to Title 14 CPR Section 13.209(a), you are required to file a written answer to this 

Complaint, or a written Motion to Dismiss if appropriate, not later than 30 days after the date 

showri on the Certificate of Service which follows. 

CERTIFICATE OF SERVICE 

I hereby certify that a copy of the foregoing Complaint has been mailed this date by Certified 

Mail, Return Receipt Requested, to the following: 

Hearing Docket 

Federal Aviation Administration 

800 Independence Avenue, SW 

Washington, DC 20591 

Attn: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building- Suite 2W1000 

Winston E. Miller 

Frost Brown Todd LLC 

400 West Market Street, 32"d Floor 

Loui ville, KY 

Program Analyst 

MAR ' i 9 2016} 

Dated 

original and I copy 

6 
EXHIBITS 
U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

FEDERAL AVIATION ADMINISTRATION 

FEDERAL AVIATION ADMINISTRATION, 

Complainant, 

vs. 

UNITED PARCEL SERVICE COMPANY 

Respondent. 

JUDGE NOT YET ASSIGNED 

FAA Docket No. 

Judge 

COMPLAINT 

The Federal Aviation Administration (FAA), by counsel, hereby files its Complaint, pursuant to 

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

I. 

2 

On February I 0, 2016, Respondent, United Parcel Service Company was advised through a Final 

Notice of Proposed Civil Penalty that the FAA proposed 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 I Z 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 of Dangerous 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 of Dangerous 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 of Dangerous 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. ·The box was marked "Lithium Batteries, UN3090." 

19. Class 9 and CARGO AIRCRAFT ONLY labels were affixed to the box. 

20. UPS in its capacity as a freight forwarder, offered the above shipments of 

hazardous materials for transportation aboard aircraft when the hazardous 

materials were not properly described on a shipping paper. 

III. 

21. As a result, UPS violated the following sections of the 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 

shipment in 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 

($11 0,000 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 of this case, a civil penalty of$16,250 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 $16,250. 

Respectfully submitted this q.fl. day of March, 2016. 

~~/ ~ /~ ;+Por~y 

Andrea Mi~arper Senior Attorney 

Enforcement Division, Southern Team 

PLEASE NOTE: 

Pursuant to Title 14 CFR Section 13.209(a), you are required to file a written answer to this 

Complaint, or a written Motion to Dismiss if appropriate, not later than 30 days after the date 

shown on the Certificate of Service which follows. 

5 
CERTIFICATE OF SERVICE 

I hereby certify that a copy of the foregoing Complaint has been mailed this date by Certified 

Mail, Return Receipt Requested, to the following: 

Hearing Docket 

Federal Aviation Administration 

800 Independence Avenue, SW 

Washington, DC 20591 

Attn: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building- Suite 2Wl 000 

Winston E. Miller 

Frost Brown Todd LLC 

400 West Market Street, 3 2nd Floor 

Louisville, KY 

.MAR I 9 2016-

Dated 

original and l copy 

6