WILKERSON 

HOZUBIN 

310 K STREET, SUTTE 405 

ANai(»lACE,AK 99501 

TEL: (907J 27M297 

FAX: (907) 276-52S1 

:-t.T G 

• '.> "-' i 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, DC 

In the Matter of: 

TGI FREIGHT 

)FAA Docket No. CP10NM0012 

)DMS NO. FAA-2010-1079 

)Judge RICHARD C. GOODWIN 

MOTION AND MEMORANDUM IN LIMINE RE: SUBSEQUENT INVESTIGATION 

TGI Freight (hereinafter "TGI"), through its attorneys, 

Wilkerson Hozubin, hereby moves to limit the evidence the FAA 

may present in the hearing to evidence in the FAA's possession 

at the time of or prior to issuing the proposed civil fine to 

TGI Freight. 

The FAA provided TGI with a Letter of Investigation on 

February 19, 2010, the date of the alleged incident leading to 

this matter. That letter stated: 

The Federal Aviation Administration is conducting an 

investigation into this matter and preliminary 

evidence indicates that you may have violated the 

Federal Hazardous Materials Regulations, 49 Code of 

Federal Regulations. 

We wish to offer you the opportunity to furnish 

explanatory information reflecting extenuating or 

mitigating circumstances regarding these alleged 

violations. Your written reply will be needed within 

ten (10) working days of receipt of this letter to 

resolve this matter promptly."^ 

^ Exhibit A 
A dialogue between the parties commenced on July 8, 2010, 

with the FAA sending TGI a Notic e of Propose d Civi l Penalty.' ^ 

That letter stated the following: "After reviewing our 

investigative file, we propose to assess a civil (sic ) in the 

amount of $27,000 for this violation."^ The dialogue between 

the parties continued, but ended on October 14, 2010, with the 

FAA's Fina l Notic e of Propose d Civi l Penalty. ^ 

Based on the foregoing, it is clear that the FAA had 

concluded its investigation into this matter no later than July 

8, 2010, as.it stated it was going to seek to fine TGI $27,000 

based on its "investigation." Thus, the FAA apparently had all 

of the facts, knowledge, and information at its disposal 

necessary to impose a fine of this magnitude by July 8, 2010. 

As such, the evidence that should be presented at the hearing 

in this matter should be limited to that evidence which was in 

the possession of the FAA at that time—July 8, 2010. The FAA 

should be precluded from introducing any evidence from any 

investigation by it following the July 8, 2010 Notic e o f 

Propose d Civi l Penalty , TGI respectfully requests an Order 

reflecting the same. 

WILKERSON 

HOZUBIN 

310 K SIKSET, SUITE « 5 

ANCHORAGE, AK 99501 

Ttt: <MT) 27M297 

FAX: (M7) Z7fr5291 

^ Exhibi t B. 

^ ^d_^ a t 4 . 

^ Exhibi t C. 

In the Matter of TGI Freight 

Docket No. CP10NM0012 

Page 2 
VILKERSON 

HOZUBIN 

Ksntsr.surTEws 

ICI10RAC£,AK 99501 

lEL: (907) 27M297 

FAX: 907) 27»2gi 

DATED this <> day of September, 2011. 

WILKERSON HOZUBIN 

Attorneys for TGI Freight 

B y : 

Rebfeci ^ 

AK Ba r N 

CERTIFICATE OF SERVICE 

I hereby certify that on the 

^'' ^ day of September, 2011, a true 

and correct copy of the foregoing 

was mailed to the following: 

Original Plus 1 Copy 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, DC 20591 

Attn: Hearing Docket Clerk, AC-C-430 

Wilbur Wright Building-Suite 2W1000 

One Copy 

Howard L. Martin, Jr. 

Regional Counsel, Office of Regional Counsel, AAL-7 

Alaskan Region 

Federal Aviation Administration 

222 W 7*^^ Avenue #14 

Anchorage, AK 99513-7 587 

Cheryl M. Jones, Sr. Attorney 

Office of Regional Counsel 

Alaska Region 

Federal Aviation Administration 

222 West 7"^^ Avenue #14 

Anchorage, AK 99513-7 587 

The Honorable Richard C. Goodwin, Administrative Law Judge 

U.S. Department of Transportation 

Office of Hearings, M-20 

1200 New Jersey Avenue, S.E. 

East Building, Ground Floor, Room E12-320 

Washington, DC 20590 

WILKERSON HOZUBIN 

-arol L. 

9100/242/plead/MIL Subsequent investigation 

In the Matter of TGI Freight 

Docket No. CP10NM0Q12 

Page 3 
® 

U.S, Department 

of Transportation 

Federal Aviation 

Administration 

ANCHORAGE AVIATION 

SECUWTY and HAZARDOUS 

MATERIALS 

222 West 7* Avenue IH 4 

Anchorage, Alaska 99513-7587 

Tel: 907) 271-5003 

Fax:(907)271-4933 

CERIlFlKn MATT ^—RETURN RECEIPT REQUESTED 

Parsons Coiporation 

Attn: Charles Harrington CEO 

100 West Walnut Street 

Pasadena, CA 91124 

Dear Mr. Hairingtoii: 

Letter of InvestigatJon 

File Number: 2010NM730038 

February 19,2010 

On February 19,2010, the Federal Aviation Administration (FAA) Office of Security and Hazardous 

Materials (ASE^ branch office in Anchorage, Alaska was notified of hazardous material discovered by 

the Al^ka jMrlinps (ASAA) station in Anchorage (ANC), AK. 

Specificjilly, ASAAreported that on February 19, 2010, your company's Anchorage ofBce 

^fferisd a six' piece shipment on Air Waybill # 3371 9873 to ASAA for an- transportation as cargo 

fiorh ANC to Ketchikan, AK- During the screening of this freight, undeclared hazardous 

materials, four boxes, each containingtwelve 9.3 ounce tubes of Unitex Pro-Poxy 400 Adhesive 

(Adhesive, Class 3, UNI 133. PG10), were discovered. 

The Federal Aviation Administration is conducting an investigation into this matter and preUnunary 

evidence indicates that you may have violated the Federal Hazardous Materials Regulations, 49 Code of 

Federal Regulations. 

We wish to offer you the opportunity to funtish explanatory information reflecting extenuating or 

mitigating circumstances regarding these alleged violations. Your written reply will be needed within ten 

(10) worfciiig days of receipt of this letter to resolve this matter promptly. Please include in your 

re^onse, the hazardous material training records for everyone involved with this shipment. If no 

response is received, this case will be processed without tiie benefit of your reply. . 

Sincerely, 

Hazardous Materials Specialist 

' Hazardous Materials Branch 

; Anchorage OfQcc 

A 
o 

"07 S: Department Alaskan Region 222 W, 7th Avenue U14 

of Transportation Anchorage, Alaska 99513-7587 

Federal Aviation PH: (907) 271-5273 

Administration FAX: (907) 271-2800 

Email: Chervl.JoDes(S).faa. gov 

Case No. 2010NM730038 

JUL - 8 2010 

CERTIFIED MAIL - RETURN RECEIPT REQUESTED 

President 

TGI FREIGHT 

4000 W. 50"* Avenue, Suite 3 

Anchorage, AK 99502 

NOTICE OF PROPOSED CIVIL PENALTY 

It appears on the basis of our report of investigation that: 

1. On or about February 19, 2010, TGI Freight (TGI) offered undeclared hazardous material, as 

part of a six (6) piece shipment, to Alaska Airlines (ASAA) for air transportation from 

Anchorage, Alaska, to Ketchikan, Alaska, on ASAA air waybill # 027-3371 9873. The block 

indicating the shipment does not contain hazardous materials was initialed. 

2. During the screening process, ASAA personnel discovered the presence of four boxes, each 

of which contained twelve (12) 9.3 ounce tubes of Unitex Pro-Poxy 400 Adhesive. 

3. Unitex Pro-Poxy 400 Adhesive is classified as a hazardous material under § 172.101 of the 

United States Department of Transportation Hazardous Materials Regulations (HMR), 49 

C.F.R.-Chapter I, Subchapter C (Parts 171-80). Its proper shipping name is "Adhesives." It 

is in Hazard Class 3, Packing group ni, and has an assigned identification number of 

UNI 133. 

4. At all times mentioned herein, the shipment was not accompanied by a Shipper's Declaration 

for Dangerous Goods. 

•~i fcMtfl A 
5. TGI offered the above-described shipment of hazardous material for transportation by air 

when the shipping papers did not contain the proper shipping name of the hazardous 

material^ the hazard class of the hazardous material, the assigned identification number of the 

hazardous material preceded by "UN" or 'T^IA" as applicable, and the assigned packing group 

number prescribed for the hazardous material. 

6. TGI offered the above-described hazardous material for transportation without including in 

the shipping papers an emergency response telephone number as prescribed in Subpart G of 

Part 172 of the HMR. 

7. TGI offered hazardous materials for transpKirtation by air when it did not certify that each 

hazardous material was in accordance with the HMR by printing the certification set forth in 

§ 172.204(a) or (c)(1) on the shipping papers. 

8. TGI offered the above-described hazardous material for transportation by air and did not 

'ovide two (2) copies of the required shipper's certification. 

y. 1GI offered hazardous materials for transportation by air without addmg to the certification 

required by § 172.204(c)(3) of the HMR the following statement: 

I declare that all of the applicable air transport requirements have been met. 

10. TGI offered the above-described hazardous material when the external boxes were not 

marked or labeled in any maimer that would mdicate the hazardous nature of the contents 

contained therein. 

11. TGI offered the above-described shipment for transportation by air when the external boxes 

were not marked with the proper shipping name and the assigned identification number of tl.e 

hazardous material contained therein, and without the required markings, in English, a 

printed on or affixed to the surfece of the boxes.; 

Based on the foregoing facts and circumstances, TGI violated the following Department of 

Transportation Hazardous Materials Regulations (HMR): 

(a) Section^ l7L24^in that TGI offered hazardous material for transportation in commerce 

within the United States when each material {was not properly classed, described, marked, 

and labeled for shipment as required by the HMR. 

(b) Section 172.200(a) in that TGI offered hazardous material for transportation when the 

hazardous material was not described on the [shipping paper in the manner prescribed in 

Subpart C of Part 172 of the HMR. 
(c) Section 172.201(d) in that TGI offered hazardous material for transportation without 

including in the shipping papers an emergency response telephone nimiber as prescribed 

in Subpart G of Part 172 of the HMR. 

(d) Section 172.202(a)(1) in that TGI offered hazardous material for transportation when the 

required hazardous material description on the shipping papers did not include the proper 

identification number for the material as shown in Column (4) of the § 172.101 table. 

(e) Section 172.202(a)(2) in that TGI offered hazardous material for transportation when the 

required shipping papers did not include the proper shipping name prescribed for the 

material in Column (2) of the § 172.101 table. 

(f) Section 172.202(a)(3) in that TGI offered hazardous material for transportation when the 

required hazardous material description did i)ot include the hazard class or division 

number prescribed for the material, as shown in Column (3) of the § 172.101 table. 

'•^n 172.202(a)(4) in that TGI offered hazardous material for transportation when the 

'.. _d hazardous material description did i^ot include the assigned packing group in 

woman numerals, as designated for the hazardous material in Column (5) of the 

§ 172.101 table. 

(h) Section 172.204(a) or (c)(1) in that TGI offered hazardous material for transportation 

without printing the proper certification on the shipping papers as reqxiired by these 

sections. 

(i) Section 172.204(c)(2) in that TGI offered hazardous material to an aircraft operator for 

transportation by air and did not provide twoj copies of the required shipper's certification. 

0) Section 172.204(c)(3) in that TGI offered hazardous material for transportation by air 

without adding to the certification required by § 172.204(a) or (c)(1) the following 

statement: 

I declare that all of the applicable air transport requirements have been met. 

(k) Sections 172.300 and 172.301(a) in that TGI offered hazardous material for 

transportation when the package was not marked with the proper shipping names and 

identification nimibers for its contents. 

(1) Section 172.400(a) in that TGI offered a package containing hazardous material for 

transportation when the package was not properly labeled as specified in § 172.101. 

(m)Sections 172.600(c)(1) and (c)(2) in that TGI offered hazardous material for 

traDspoTtatioD when the emergency respons^ information, including emergency response 

telephone number, was not immediately available for use at all times. 
In accordance with Section 5123(a) of Chapter 51, Title 49 of the United States Code of 

Transportation, [49 U.S.C. § 5123(a)], TGI is liable for a civil penalty of not less tiian $250 

($450 for training violations), nor greater than $50,Q00 (or $100,(M)0 for violations resulting in 

death, serious illness, or severe injury to any personj or substantial destruction of property), for 

each violation of the regulations. After reviewing oiu: investigative file, we propose to assess a 

civil in the amount of $27,000 for this violation. 

Enclosed is information on TGI's options in respon4ing to this notice. The options include 

participating in an informal conference with an FAA attorney and submission of information to 

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

on the enclosed information form, on or before 30 days after you receive this Notice. If TGI fails 

to submit its choice within that time, it will have no further right to participate in 

the informal procedures. ' 

Please direct all communication in this matter to tfaelimdersigned. Office of Regional Counsel, 

AAL-7, 222 West 7* Avenue, #14, Anchorage, Alaska 99513-7587. 

.WARD L. MARTIN, JR. i 

Regional Counsel I 

Cheryl M. Jones 

Senior Attorney 

Enclosures: Information Sheet 

Reply Form 

FAR 13.16 and Subpart G of Part 13 

F^wftftt 
Q 

U. S. Department 

of Transportation 

Federal Aviation 

Administration 

Alaskan Region 

Office of the Regional Counsel 

OCT 1 4 ^":: 

CERTIFIED MAIL—RETURN RECEIPT REQUESTED 

222 W.7lh Avenue #14 

Anchorage, Alaska 

99513-7587 

PH: (907) 271-5273 

FAX: (907) 271-2800 

Cheryl. Jones@faa.gov 

X*-' r 

OCT 1 8 ?0,J 

Rebecca J. Hozubin, Esq. 

Wilkerson Hozubin 

310 K Street, Suite 405 

Anchorage, AK 99501 

Re: TGI Freight 

CaseNo. 2010NM730038 

Your File No. 9100.242 

wiLKERS.,; ^iO"'u^l^^ 

FINAL NOTICE OF PROPOSED CIVIL PENALTY 

On July 8, 2010, you were advised through a Notice of Proposed Civil Penalty that the FAA 

proposed to assess a civil penalty in the amount of $27,000. Information presented at the 

informal conference held September 23, 2010, demonstrated that you had relied on the 

manufacturer to correctly label its products. This resulted in a recalculation of the civil pf^-

amount proposed. 

After considering all the evidence in this matter, it appears that: 

1. On or about February 19, 2010, TGI Freight (TGI) offered undeclared hazardous material, as 

part of a six (6) piece shipment, to Alaska Airlines (ASAA) for air transportation from 

Anchorage, Alaska, to Ketchikan, Alaska, on ASAA air waybill # 027-3371 9873. The block 

indicating the shipment does not contain hazardous materials was initialed. 

2. During the screening process, ASAA persormel discovered the presence of four boxes, each 

of which contained twelve (12) 9.3 ounce tubes of Unitex Pro-Poxy 400 adhesive. 

3. Unitex Pro-Poxy 400 Adhesive is classified as a hazardous material under § 172.101 of the 

United States Department of Transportation Hazardous Materials Regulations (HMR), 49 

C.F.R. Chapter I, Subchapter C (Parts 171-80). Its proper shipping name is "Adhesives." It 

BMIOC fc. . 
is in Hazard Class 3, Packing group III, and has an assigned identification number of 

UN1133. 

4. At all times mentioned herein, the shipment was not accompanied by a Shipper^s Declaration 

for Dangerous Goods. 

5. TGI offered the above-described shipment of hazardous material for transportation by air 

when the shipping papers did not contain the proper shipping name of the hazardous material, 

the hazard class of the hazardous material, the assigned identification number of the 

hazardous material preceded by "UN" or "NA" as applicable, and the assigned packing group 

number prescribed for the hazardous material. 

6. TGI offered the above-described hazardous material for transportation without including in 

the shipping papers an emergency response telephone number as prescribed in Subpart G of 

Part 172 of the HMR. 

7. TGI offered hazardous materials for transportation by air when it did not certify that each 

hazardous material was in accordance with the HMR by printing the certification set forth in 

§ 172.204(a) or (c)(1) on the shipping papers. 

8. TGI offered the above-described hazardous material for transportation by air and did not 

provide two (2) copies of the required shipper's certification. 

9. TGI offered hazardous materials for transportation by air without adding to the certification 

required by § 172.204(c)(3) of the HMR the following statement: 

I declare that all of the applicable air transport requirements have been met, 

10. TGI offered the above-described hazardous material when the external boxes were not 

marked or labeled in any manner that would indicate the hazardous nature of the contents 

contained therein. 

11. TGI offered the above-described shipment for transportation by air when the external boxes 

were not marked with the proper shipping name and the assigned identification number of the 

hazardous material contained therein, and without the required markings, in English, and 

printed on or affixed to the surface of the boxes. 

By reason of the foregoing facts and circumstances, TGI violated the following Department of 

Transportation Hazardous Materials Regulations: 

(a) Section 171.2(e) in that TGI offered hazardous materizd for transportation in commerce 

within the United States when each material was not properly classed, described, marked, 

and labeled for shipment as required by the HMR. 
(b) Section 172.200(a) in that TGI offered hazardous material for transportation when the 

hazardous material was not described on the shipping paper in the manner prescribed in 

Subpart C of part 172 of the HMR. 

(c) Section 172.201(d) in that TGI offered hazardous material for transportation without 

including in the shipping papers an emergency response telephone number as prescribed 

in Subpart G of Part 172 of the HMR. 

(d) Section 172.202(a)(1) in that TGI offered hazardous material for transportation when the 

required hazardous material description on the shipping papers did not include the proper 

identification number for the material as shown in Column (4) of the § 172.101 table. 

(e) Section 172.202(a)(2) in that TGI offered hazardous material for transportation when the 

required shipping papers did not include the proper shipping name prescribed for the 

material in Column (2) of the § 172.101 table. 

(0 Section 172.202(a)(3) in that TGI offered hazardous material for transportation when the 

required hazardous material description did not include the hazard class or division 

number prescribed for the material, as shown in Column (3) of the § 172.101 table. 

(g) Section 172.202(a)(4) in that TGI offered hazardous material for transportation when the 

required hazardous material description did not include the assigned packing group in 

Roman numerals, as designated for the hazardous material in Column (5) of the 

§ 172.101 table. 

(h) Section 172.204(a) or (c)(1) in that TGI offered hazardous material for transportation 

without printing the proper certification on the shipping papers as required by these 

sections. 

(i) Section 172.204(c)(2) in that TGI offered hazardous material to an aircraft operator for 

transportation by air and did not provide two copies of the required shipper*s 

certification. 

(j) Section 172.204(c)(3) in that TGI offered hazardous material for transportation by air 

without adding to the certification required by § 172.204(a) or (c)(1) the following 

statement: 

I declare that all of the applicable air transport requirements have been met. 

(k) Sections 172.300 and 172.301(a) in that TGI offered hazardous material for transportation 

when the package was not marked with the proper shipping names and identification 

numbers for its contents. 

(I) Section 172.400(a) in that TGI offered a package containing hazardous material for 

transportation when the package was not properly labeled as specified in § 172.101. 
(m) Sections 172.600(c)( I) and (c)(2) in that TGI offered hazardous material for 

transportation when the emergency response information, including emergency response 

telephone number, was not immediately available for use at all times. 

In accordance with Section 5123(a) of Chapter 51, Title 49 of the United States Code (49 U.S.C. 

§ 5123(a)), you are liable for a civil penalty of not less than $250 ($450 for training violations), 

nor greater than $50,000 (or $100,000 for violations resulting in death, serious illness, or severe 

injury to any person, or substantial destruction of property), for each violation of the regulal. 

By reason of the foregoing facts and circumstances, we propose to assess a civil penalty in the 

amount of $15,000. 

Unless you mail or personally deliver your request for a hearing, in writing, in this matter on or 

before 15 days after you receive this Final Notice, we will issue an Order Assessing Civil 

Penalty, and you will have no further right to a hearing. If you do not submit a written request 

for a hearing, you must pay the proposed civil penalty. 

Your request for a hearing must be sent to tiie Hearing Docket, Federal Aviation Administration, 

800 Independence Ave., SW, Washington, DC 20591, Attn: Hearing Docket Clerk, AGC-43C, 

Wilbur Wright Building—Suite 2W1000, and a copy must be sent to the undersigned FAA 

attorney. Your request must be dated and signed, in accordance with § 13.16 of the Federal 

Aviation Regulations (14 C.F.R. § 13.16), sent to you with the Notice of Proposed Civil Penalty. 

You may pay the proposed penalty by submitting a check or money order payable to the Federal 

Aviation Administration to the undersigned. In the alternative, you may pay your civil penalty 

with a credit card over the Internet. To pay electronically, visit the web site at 

http://www.pav.gov. Under the Search Public Forms option type in "FAL-FINEl." You must 

then complete the requested information and click "Continue." You will then be directed to enter 

your credit card or bank account debit information. To use the bank account debit you wil' • 

your bank routing number, account number, and check number. If you pay electronically, i...., j 

the undersigned tliat such a payment has been made. 

HOWARD L. MARTIN, JR. 

Regional Counsel 

Cheryl M, Jones 

Senior Attorney 

cc: AAL-750 

• ^P* . 
WILKERSON 

HOZUBIN 

310 K SntEEF, SUITE Wf 

ANCHORAGE, AK 9H01 

TEL: (907) 27&52»7 

FAX: (M7) 27»291 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, DC 

In the Matter of 

TGI FREIGHT 

) 

)FAA Docket No. CP10NM0012 

)DMS NO. FAA-2010-1079 

)Judge RICHARD C. GOODWIN 

(PROPOSED) ORDER GRANTING TGI'S 

MOTION IN LIMINE RE: SUBSEQUENT INVESTIGATION 

Having reviewed TGI's Motion i n Limine Re: Subsequent 

Investigation, and any opposition thereto, this Judge finds the 

motion well taken. Accordingly, it is GRANTED. The FAA is 

precluded from introducing any evidence from any investigation 

regarding this matter after July 8, 2010. 

DATED this day of , 2011. 

Honorable Richard C. Goodwin 

U.S. Administrative Law Judge 
WILKERSON 

HOZUBIN 

»Q K STREET, SUTTE 409 

ANCHORAGE, AK M501 

in. : (907) 27&J»297 

FAX: (M7) 27&529I 

CERTIFICATE OF SERVICE 

I hereby certify that on the 

c^ day of September, 2011, a true 

and correct copy of the foregoing 

was mailed to the following: 

Original Plus 1 Copy 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, DC 20591 

Attn: Hearing Docltet Clerk, AGC-430 

Wilbur Wright Building-Suite 2W1000 

One Copy 

Howard L. Martin, Jr. 

Regional Counsel, Office of Regional Counsel, AAL^7 

Alaskan Region 

Federal Aviation Administration 

222 W 7"^ Avenue #14 

Anchorage, AK 99513-7587 

Cheryl M. Jones, Sr. Attorney 

Office of Regional Counsel 

Alaska Region 

Federal Aviation Administration 

222 West 7'^*' Avenue *tl4 

Anchorage, AK 99513-7587 

The Honorable Richard C. Goodwin, Administrative Law Judge 

U.S. Department of Transportation 

Office of Hearings, M-20 

1200 New Jersey Avenue, S.E. 

East Building, Ground Floor, Room E12-320 

Washington, DC 20590 

WILKERSON iJOZUBIN 

By: X/;. ^ ^ /// i/k^^^C . 

9100/942/plead/MIL r e Subsequen t Investigation-Orde r 

In the Matter of TGI Freight 

Docket No. CP10NM0012 

Page 2