In the Matter of: 

Empire Airlines, Inc., 

Respondent 

UNITED STATES OF AMERICA 

DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

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) 

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) 

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FAA Docket No. CP09NM0009 

FAA Case No. 2007NM700155 

--------------------------) 

The Honorable Richard C. Goodwin 

POST-HEARING BRIEF OF RESPONDENT 

At the conclusion of the October 26-27, 2010 hearing in this matter, the 

Honorable Judge provided the parties the opportunity to file briefs on the issues. Pursuant 

to Section 13.231(c) of the Rules of Practice in FAA Civil Penalty Actions (14 C.F.R. § 

13.231(c», Respondent, by and through undersigned counsel, hereby files this PostHearing Brief. 

I. INTRODUCTION 

This case arose out of an inspection by two Federal Aviation Administration 

("FAA") agents on or about August 21-22, 2007 at the Medford, Oregon facility operated 

by Federal Express Corporation d/b/a FedEx Express (hereinafter referred to as "FedEx 

Express"). During the course of the FAA's inspection, the agents observed and gathered 

information concerning two shipments tendered to and transported by FedEx Express, 

which they believed did not comply with the regulatory requirements for such goods. 

Respondent, Empire Airlines, Inc. (hereinafter refened to as "Empire"), provides regional 
cargo airline support for FedEx Express. Pursuant to that role, Empire transported 

shipments, including the two noted above, from Portland, Oregon to Medford, Oregon for 

FedEx Express. The FAA also obtained information during this inspection that they 

believed indicated that the pilot had changed the location of certain hazardous materials/ 

dangerous goods packages without appropriately documenting the change. 

A Letter of Investigation was issued by the FAA and answered by Empire. A 

Notice of Proposed Civil Penalty was issued and ultimately a Complaint was filed by the 

FAA, which Empire answered. 1 The parties exchanged discovery, and the case was set 

for hearing. The hearing occUlTed in Portland, Oregon on October 26-27, 2010, with the 

Honorable Richard Goodwin, Administrative Law Judge, presiding. 

II. THE FACTS AND TESTIMONY 

Empire is a federally certified all-cargo air carrier headquartered in Hayden, Idaho 

who provides regional air cargo support services for FedEx Express, another federally 

celiified all-cargo air carrier. (Tr. at 166, lines 4-6; Tr. at 168, lines 9-15.) It provides 

those services exclusively for FedEx Express. (Tr. at 168, lines 16-18.) The aircraft it 

flies on behalf of FedEx Express are owned and registered by FedEx Express. (Tr. at 149, 

line 19-; Tr. at 150, lines 1-4; and Tr. at 169, lines 6-9.) Those aircraft have FedEx 

Express logos and are painted in FedEx Express company colors. (Tr. at 150, line 4; 

Exhibit C-15.) 

The circumstances at Issue III this case involve two shipments tendered by 

AstraZeneca to FedEx Express on or about August 21,2007 in Baltimore, Maryland, and 

1 In the Procedural Sunnnary of its brief, the FAA describes some of Empire's responses in its Answer as 

non-responsive. (Complainant's Brief at p. 1.) Empire disagrees with this characterization and states that it 

responded fully to all allegations in the Complaint. (See generally, Answer.) Moreover, in Section V of its 

Answer, Empire specifically denied any allegation not specifically addressed. 

2 
the change of location of certain hazardous materials/dangerous goods packages on 

another FedEx Express flight flown by Empire and transpOliing FedEx Express packages. 

Regarding the two AstraZeneca shipments, their ultimate destination was Medford, 

Oregon. Empire transported the shipments on Flight 8677-22 from POliland, Oregon to 

Medford, Oregon pursuant to its role as regional air cargo support for FedEx Express. 

The shipments bore FedEx Express shipping labels with FedEx Express tracking 

numbers. The shipper did not provide any shipping papers to FedEx Express for either 

shipment. (Tr. at 50, lines 12-14.) 

The electronic manifesting information that the FAA had obtained in connection 

with its investigation on this matter indicated that no hazardous materials/ dangerous 

goods were on Flight 8677-22. (Exhibit C-5.) When the cargo from this flight was being 

offloaded in Medford, Oregon, however, the FAA noticed two packages marked ORM-D. 

(Tr. at 49.) Tn connection with its role as regional air cargo support for FedEx Express, 

Empire personnel do not accept or inspect FedEx Express shipments, do not physically 

load FedEx Express shipments, do not enter infOlmation into the FedEx Express 

electronic manifesting system, called AUTODG, and do not create the Notice to Pilot in 

Command ("NOPTe"). (Tr. at 135; Tr. at 140, line 15-; Tr. at 145; Tr. at 175-176; Tr. at 

182, lines 6-16; and see generally, Answer.) Therefore, when Empire received the cargo 

from FedEx Express in POliland, Oregon to transport to Medford, Oregon on FedEx 

Express' behalf on flight 8677-22, Empire did not receive information to indicate that 

hazardous materials/ dangerous goods were aboard. (Tr. at 182, lines 6-16; and see 

generally, Answer.) 

3 
Regarding the loading change of certain hazardous materials / dangerous goods 

shipments from Position 1 to Pod C on Flight 8678-22, Empire requested that the FedEx 

Express loading personnel change the location of this particular load. (Tr. at 178, line 

21- Tr. at 179.) Empire provided a paper load control sheet for the flight to the FAA 

that reflected the change. (Exhibits C-3-1 and C-l1.) Empire believed that the FedEx 

Express ramp operations personnel would make the change in the FedEx Express 

electronic manifesting system, but that did not occur. (kL and Tr. at 179.) 

III. ARGUMENT 

A. Empire provides regional air cargo support for FedEx Express and is not 

responsible for accepting, inspecting, or loading FedEx Express 

packages. 

Empire does not dispute that it has its own air carrier certificate, that it operated 

Flights 8677-22 and 8678-22 discussed in this proceeding and that the two aircraft flown 

for those flights were on its Operations Specifications. Empire does dispute, though, that 

it is responsible for the regulatory violations noted in the FAA's Complaint. 

Empire does not accept, inspect or physically load FedEx Express shipments. (See 

Section II, supra.) Those shipments are tendered by shippers to FedEx Express, as the 

canier. (Id.) FedEx Express personnel perform inspection, processing and package 

loading functions for its shipments. (Id.) Empire simply flies the plane canying the 

FedEx Express shipments from one point to another. (Tr. at 168, lines 11-15.) Empire's 

operations involve a single crew member who is not involved in the acceptance, 

inspection, processing or loading of packages, and this was the case here. (Tr. at 175, 

lines 21-22; Tr. at 176, line 1; Tr. at 182, lines 6-16; and Tr. at 183, lines 1-2.) 

4 
In its brief, the FAA cites cases that it contends support the position that Empire is 

responsible for the regulatory violations alleged in the Complaint. (Complainant's Brief 

at p. 8-9.) Empire, however, argues that those cases are distinguishable from the case at 

bar. The FAA-cited cases involved respondents facing enforcement action for regulatory 

violations pertaining to services, involving maintenance, operations and security, that 

were provided by entities with which respondents had contracted. In the Matter of Alaska 

Airlines, 2004 FAA LEXIS 905, FAA Order No. 2004-8 (Oct. 4, 2004); In the Matter of 

Empire Airlines, 2000 FAA LEXIS 648, FAA Order No. 2000-13 (June 8, 2000); In the 

Matter of US Air, Inc., 1992 FAA LEXIS 352, FAA Order No. 92-70 (Dec. 21,1992); 

and In the Matter of West Air Commuter, 1995 FAA LEXIS 342, FAA Order No. 96-16 

(May 3, 1995). 

The respondent air caniers in the Alaska Airlines, Empire Airlines and US Air 

cases were in the FedEx Express position of being the party for whom services were 

provided. Id. (omitting WestAir cite.) Those cases do not say much, if anything at all, 

about related enforcement action against the patties performing the services, Empire's 

position in this matter. Id. The WestAir case does mention that the canier in the Empire 

position, United, faced enforcement action for circumstances related to the matters raised 

in WestAir's case. In the Matter of WestAir Commuter, 1995 FAA LEXIS 342 at *8, 

FAA Order No. 96-16 (May 3, 1995). The Administrator points out, however, that the 

separate civil penalty cases against United and WestAir were appropriate because the 

cases were for separate and distinct violations. Id. at *13-14. That is not the case here as 

the FAA is seeking a civil penalty from Empire for circumstances involving same or 

5 
similar violations as being sought in a separate case against FedEx Express. (See FAA 

Docket No. CP09NM0010.) 

The FAA-cited Empire case aptly summarizes the instructive premise the cases 

cited by the FAA: air carriers cannot delegate their responsibility for airworthiness and 

maintenance. In the Matter of Empire Airlines, 2000 FAA LEXIS 648 at *24, FAA Order 

No. 2000-13 (June 8, 2000). In the case at bar, Empire is not relying on another entity to 

perform functions such as airworthiness as it performs such functions itself. (Tr. at 182, 

lines 12-16.) Empire does rely, and reasonably so, on FedEx Express for inspecting and 

processing packages tendered to FedEx Express for transportation. Moreover, as 

discussed further below, Empire's pilots do not have to be trained in package acceptance 

and inspection. 14 C.F.R. §121, Appendix O. (See also, Section IILD, infra.) 

B. Empire had neither actual nor constructive knowledge that the shipments 

at issue contained hazardous materials / dangerous goods. 

The facts and evidence clearly establish that Empire neither knew nor had 

constructive knowledge that the two AstraZeneca shipments on Flight 8677-22 were 

marked ORM-D and contained hazardous materials / dangerous goods. Empire does not 

dispute that those shipments were on board Flight 8677-22 that it flew on behalf of 

FedEx Express. Empire does deny, though, that it knowingly improperly transported 

those shipments. 

Empire recognizes that the standard provided in 49 U.S.C. §5123(a) applies to 

determine whether Empire "knowingly" transported a shipment that was in violation of 

the Hazardous Material Regulations ("HMR"). Empire also recognizes that the 

Department of Transportation issued a multi-modal interpretation in 1998 of the HMR 

concerning the responsibility of a carrier when transporting hazardous materials / 

6 
dangerous goods for in commerce. Empire maintains that the minimal "ORM-D" 

marking simply does not provide sufficient visual recognition to air carrier personnel and 

does not adequately indicate the presence of hazardous materials / dangerous goods. 

The applicable regulations establish a system by which shippers of hazardous 

materials / dangerous goods are to communicate the presence of those materials in a 

package. 49 C.F.R. §173.22. Here, specifically, the shipper did not provide any shipping 

papers or any verbal indication to FedEx Express that either shipment contained 

hazardous materials / dangerous goods. (See Section II, supra.) This misrepresentation 

put FedEx Express, the carrier processing and transporting the packages in its system, at a 

disadvantage in having to discover that the shipper provided false information. Empire's 

role in that process included only the providing of supplemental air cargo services for 

F edEx Express. Empire was at an even greater disadvantage than F edEx Express and 

likewise had no information sufficient to indicate that the shipments contained hazardous 

materials / dangerous goods. 

Since the shipper placed the shipments into the transpOliation system with FedEx 

Express in Baltimore, Maryland (see Section II, supra), the 0ppOliunities for Empire to 

have seen the ORM-D mark at all were extraordinarily limited, if at all existing. As the 

undisputed facts show, Empire does not accept, inspect, load or in any other way 

physically handle FedEx Express shipments. There was no paperwork or notification 

provided by the shipper to FedEx Express about the shipments containing hazardous 

materials / dangerous goods, which thereby resulted in Empire not having the appropriate 

infOlmation either. 

7 
The FAA's argument that the ORM-D markings were immediately adjacent to the 

F edEx Express label and were in immediate proximity to documents to be scanned for 

package tracking purposes

2 matters not here. (Complainant's Brief at p. 11 and 12.) 

Those arguments are simply not applicable for this case given that it is undisputed that 

Empire does not accept (which would include scanning), inspect, load or in any other 

way physically handle FedEx Express shipments. Accordingly, Empire would have had 

no knowledge whatsoever of the ORM-D marking being on the AstraZeneca shipments. 

Moreover, Empire reasonably relied on the electronic manifesting information received 

from FedEx Express for the FedEx Express shipments transpOlted on the plane that 

Empire flew on behalf of FedEx Express. That information indicated that no hazardous 

materials I dangerous goods were aboard Flight 8677-22 and it was represented to Empire 

as accurate. (See Answer, Section II(3)). 

With regard to the Consumer Commoditll ORM-D mark itself, the mark is not 

required to appear in a particular location on a package, nor is it required to be of a 

specific size or color. 49 C.F.R. § 172.316. The only reference to dimensions is that the 

rectangular border sunounding the ORM-D mark must be W' from the letters, but 

nothing prescribes the size of the letters. Although FAA Agent Stiger said the ORM-D 

mark was on two sides of both packages, no regulation requires dual marking. Further, 

the FAA offered no photographic evidence confhming that the mark appeared on two 

sides of the shipments at issue. (Exhibits C-1 and C-8; Tr. at 84, lines 6-14.) Based on the 

2 Empire acknowledges that it admitted, albeit with some qualifications, Complainant's Requests for 

Admissions #3-6 referenced on page 11 of the FAA's brief. In preparing those responses, Empire had the 

photographs from Exhibit C-8 which do show the position of the markings vis-a.-vis the shipping labels. 

Empire maintains, however, that it did not know nor have reason to know that those markings were on the 

two shipments at issue at the time of the matters raised in the Complaint. 

3 Consumer commodities are materials able to be classified as suitable for retail sale for personal and 

household use purposes. (ICAO Packing Instruction Y963.) 

8 
evidence, one can only conclude that the mark was in only one location. Under such 

circumstances, therefore, Empire exercised reasonable care: there was great likelihood for 

the mark not to be seen, especially given the distinct possibility that the non-marked ends 

could have been the only ends visible during the FedEx Express loading operations that 

Empire's pilot supervised. (Tr. at 181.) 

The FAA also asselis that Empire did not exercise reasonable care because it did 

not inquire whether the two AstraZeneca shipments contained hazardous materials / 

dangerous goods. (Complainant's Brief at p. 11.) With no information or indication from 

FedEx Express (who received none from the shipper), the entity who processed the 

shipments, that the shipments contained regulated goods and with extremely limited 

0ppOliunity (see especially, previous paragraph) to see the ORM-D markings, Empire did 

not know nor have sufficient information or indication to enable it to know that those 

AstraZeneca shipments contained hazardous materials / dangerous goods. Empire 

submits that it exercised reasonable diligence in relying on both the information it was 

provided, which was represented as accurate, and the absence of any readily apparent 

indicators that it was able to observe that no hazardous materials / dangerous goods 

shipments were on board Flight 8677-22. 

As established above and by the facts and evidence, it is undisputed that Empire 

personnel do not accept, inspect, process or load FedEx Express packages onto the planes 

they fly pursuant to Empire's role as regional air cargo suppOli for FedEx Express. The 

Empire personnel involved in this case consisted of one pilot. Empire would submit that 

it is not reasonable and would actually compromise safety to expect a crewmember in a 

single pilot operation to perform package acceptance, inspection and loading functions. 

9 
Imposing such an expectation and requirement would impede commerce and interfere 

with a crewmember's pre-flight responsibilities concerning maintenance and 

airworthiness, thereby compromising safety. As noted in the FAA-cited Empire Airlines 

case, air carriers must ensure the airworthiness of the aircraft they fly. In the Matter of 

Empire Airlines, 2000 FAA LEXIS 648 at * 24, FAA Order No. 2000-13 (June 8, 2000). 

Additionally, Empire's pilots do not have to be trained in package acceptance and 

inspection. 14 C.F.R. §121, Appendix O. (See also, Section lILD, infra.) 

C. Empire had neither actual nor constructive knowledge that the 

information was not changed in the F edEx Express electronic 

manifesting system to reflect Empire's loading change on Flight 8678-

22. 

The facts and evidence also clearly establish that Empire neither knew nor had 

constructive knowledge that the loading change of certain hazardous materials / 

dangerous goods shipments from Position 1 to Pod C on Flight 8678-22 was not made 

pursuant to Empire's request. During loading operations, Empire requested that the 

FedEx Express loading personnel change the location of particular hazardous materials / 

dangerous goods shipments aboard the plane. (Tr. at 178, line 21- Tr. at 179.) Empire 

provided a paper load control sheet for the flight to the FAA that reflected the change 

(Exhibits C-3-1 and C-11), but the FAA refused to acknowledge that the change had been 

attempted. 

Empire does not enter information into the FedEx Express electronic manifesting 

system nor have access to it. (See Answer, Sections lI(4)-(5) and lI(7).) It was Empire's 

expectation that FedEx Express ramp operations personnel would make the change in the 

FedEx Express electronic manifesting system and had no reason to believe that the 

change would not be made. An ALJ has held that a party in Empire's position is not 

10 
liable for regulatory violations resulting from such reliance. In the Matter of Empire 

Airlines, 2000 FAA LEXIS 648 at *21, FAA Order No. 2000-13 (June 8, 2000) (air 

can-ier not responsible for faulty aircraft repair because it reasonably relied on F AAcertificated repair station to do the repair and had no reason to suspect the repair station 

did not make the repairs properly.) 

D. Empire is not obligated under the Federal Aviation Regulations to 

provide hazardous materials / dangerous goods acceptance training for its 

flight crew. 

As noted above, Empire operates aircraft owned by FedEx Express and painted 

with the FedEx Express colors and logo. (See, Section II, supra.) FedEx Express 

personnel handle and load all cargo. (Id.) FedEx Express personnel prepare the NOPIC 

when one is required. ilih) The only activity of the Empire employee, the flight crew, is 

to fly and otherwise operate the aircraft safely. 

Hazardous materials / dangerous goods employee training was the topic of major 

discussion and revision in rulemaking Docket No. FAA-2003-15085. (70 Fed. Reg. 

58796, Oct. 7, 2005.) Specific training cun-icula which fOlmerly had been in the 

regulations were removed as were specific training modules. ilih) The FAA said, 

"Instead it will be the certificate holder's responsibility to detelmine which workers 

require celiain training based on the job function they perform. The celiificate holder 

will need to dete1mine the level, content and duration of training." ilih at 58812.) 

Similarly, in the preamble to this rulemaking, the FAA said, "The type of hazmat 

training necessary depends upon the job function performed or directly supervised. It is 

the responsibility of the certificate holder to ensure that the level of training is adequate 

11 
and appropriate for each worker's job function. The specific level and duration of 

training is detennined by the certificate holder, not the FAA." (Id. at 58813.) 

The ultimate outcome of this significant rulemaking was the adoption of 

Appendix 0 to Part 121 of title 14 C.F.R. (Copy attached.) Table 1 of that Appendix 

outlines requirements for operators that transport hazardous material/dangerous goods, 

i.e., will-cany certificate holders. Empire is such a certificate holder. 

The format of Table 1 is to list functions in Column 1, and then various types of 

employees in parallel columns, with an "X" in those columns if that type of employee 

must receive that type of training. Specifically, the list of functions include: "Acceptance 

procedures," in other words, the inspection requirements of 49 C.F.R. § 175.30. Notably, 

in the column for "Flight crew members and load planners" there is no "X," i.e., 

acceptance procedure training is not required for Empire's pilots. They do need to have 

training in other aspects of hazardous materials / dangerous goods, such as storage and 

loading procedures and notification of the pilot, but not acceptance procedures. 

As shown by the facts and testimony, the Empire pilots do not conduct acceptance 

procedures, any more than any FedEx Express pilot would, and like FedEx Express pilots 

to whom freight is transfened from aircraft to aircraft, they are not required to be given 

acceptance procedure training. They cannot be cited for failure to perform a task to 

which they are not assigned, and for which by Appendix 0 they are not required to be 

trained. 

E. A proposed civil penalty is not appropriate under the facts and circumstances 

of this case. 

Empire argues that, given the facts and circumstances of this case, a civil penalty 

at all is not appropriate. Pursuant to 14 C.F.R. §13.224(a), the Complainant must show 

12 
that the proposed civil penalty is appropriate. In the Matter of William A. Luker, Jr., 

2010 FAA LEXIS 99, FAA Docket No. CP09SW0008, at *14. The FAA has 

promulgated guidance for proposing penalties, but "this Guidance [ sic] is not binding on 

respondents or administrative law judges in setting penalties." Id. Empire would also 

point out that the clear and unambiguous language of 14 C.F.R §13.16(d)(3) indicates 

that the Administrative Law Judge has the authority and obligation to decide whether a 

civil penalty is wan'anted at all: 

Unless an appeal is filed with the FAA decisionmaker in a timely manner, an 

initial decision or order of an administrative law judge shall be considered an 

order assessing civil penalty if an administrative law judge finds that an alleged 

violation occurred, and determines that a civil penalty, in an amount found 

appropriate by the administrative law judge, is warranted. (Emphasis added). 14 

C.F.R § 13. 16(d)(3). 

In this case, the FAA has proposed $20,000 as a civil penalty against Empire. 

Empire contends that no civil penalty is wananted at all. As noted above, the 

Administrator has previously opined that separate civil penalty cases against separate 

entities are appropriate when there are separate and distinct violations involved. In the 

Matter of WestAir Commuter, 1995 FAA LEXIS 342 at *13-14, FAA Order No. 96-16 

(May 3, 1995). (See Section lILA., supra.) In logically follows, then, that separate civil 

penalty cases against separate entities are not appropriate when there are not separate and 

distinct violations. 

Here, the FAA is seeking a civil penalty from Empire for circumstances involving 

same or similar violations as being sought in a separate case against FedEx Express. (See 

FAA Docket No. CP09NM0010.) To the extent that the alleged violation concerning the 

electronic manifest information not reflecting the loading change is deemed a separate 

violation from the FedEx Express case, Empire argues that it had neither actual nor 

13 
constructive knowledge that the change was not made. (See Section lII.C, supra.) Even 

though Empire contends that it lacks the requisite knowledge for civil penalty purposes, it 

wishes to note that, nonetheless, it took swift action to strengthen procedures to avoid 

being in a position again were it is placed in jeopardy, as seen with the paperwork issue 

involved with Flight 8678-22. (Tr. at 180, lines 1-10; Exhibit C-ll.) 

Empire is truly mystified that it received a proposed civil penalty in connection 

with this matter. It is undisputed that Empire has no prior violation history of the HMR. 

Additionally, it is undisputed that none of the at-issue shipments on Flights 8677-22 and 

8678-22 caused damage or harm (Tr. at 82-83; Tr. at 84, lines 1-5) and that Empire 

reasonably relied, to its detriment, on inconect information received from another source. 

(See, Sections III.B-C, supra.) Moreover, the Federal Aviation Regulations do not require 

that Empire's pilots be trained in package acceptance and inspection. (See, Section lII.D, 

infra.) These facts and circumstances should have borne more significance in the FAA's 

review and consideration of this case. 

In sum, civil penalties in cases involving the HMR are only to be assessed when a 

person knowingly violates those regulations. 49 U.S.C. §5123(a). Such "knowing 

violation" can consist of actual or constructive knowledge. Id. Empire reiterates its 

arguments, appearing earlier in this brief, that it lacked both the actual and constructive 

knowledge required to sustain a civil penalty in this matter. Per the Department of 

Transportation's regulatory interpretation of 49 U.S.C. §5123(a), innocent caniers 

without this knowledge "lack the knowledge required for assessment of a civil penalty." 

63 Fed. Reg. 30411 (June 4, 1998). Empire submits that it is such a canier in this case. 

14 
CERTIFICATE OF SERVICE 

I certify that a true and con'ect cop~f the foregoing was forwarded via facsimile 

and FedEx Ovemight delivery on the {~' day of February, 2011, to: 

The Honorable Richard C. Goodwin, Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Avenue, SE 

East Building Ground Floor, Room E12-320 

Washington, DC 20590 

FAX: (202) 366-7536 

Federal Aviation Administration 

800 Independence Avenue, SW 

Wilbur Wright Building, Suite 2W1000 

Washington, DC 20591 

Attn: Hearing Docket Clerk, AGC-430 

FAX: (202) 493-5142 

Mr. Scott R. Morris, Esq. 

F ederal Aviation Administration 

Office of the Regional Counsel- NOlihwest Mountain Region 

1601 Lind Avenue SW 

Renton, W A 98057 

FAX: (425) 227-1007 

QO(M~ ffte~ Courtney E. elts 

16 
Federal Aviation Administration, DOT 

ApPENDIX N TO PART 121 [RESERVED] 

ApPENDIX 0 TO PART 121-HAZARDOUS 

MATERIALS TRAINING REQUIREMENTS FOR CERTIFICATE HOLDERS 

This appendix prescribes the requirements 

for hazardous materials training under part 

121. subpart Z. and part 135, subpart K of this 

chapter. The training requirements for var- ious categories of persons are defined by job 

function or responsibility. An "X" in a box 

under a category of persons indicates that 

the specified category must receive the 

noted training. All training requirements 

apply to direct supervisors as well as to per- sons actually performing the job function. 

Training requirements for certificate holders 

pt, 121, App, 0 

authorized in their operations specifications 

to transport hazardous materials (will-carry) 

are prescribed in Table 1. Those certificate 

holders with a prohibition in their operations specifications against carrying or 

handling hazardous materials (will-notCarry) must follow the curriculum prescribed 

in Table 2. The method of delivering the 

training will be determined by the certificate holder. The certificate holder is responsible for providing a method (may include 

email, telecommunication, etc.) to answer all questions prior to testing regardless of 

the method of instruction. The certificate 

holder must certify that a test has been completed satisfactorily to verify understanding 

of the regulations and requirements. 

TABLE 1-OPERATORS THAT TRANSPORT HAZARDOUS MATERIAL-WILL-CARRY CERTIFICATE 

HOLDERS 

Operators and Operators and ground·han· Aspects of transport of ground·han· dling agents Crewmem· hazardous materials by ShiWters dting agent's staff respon· Passenger- Right crew bers air with which they must (See ate 2) staff accepting sible for the handling staff members and ~other than be familiar, as a min- WiII--carry hazardous ma- handling. star- WiII--carry load R.lanners light crew imum terials a~e, and load- Wil--carry members) (See note 1) (See Note 3) 109 of cargo Will-carry 

Will-carry and baggage 

WiII--carry 

General philosophy ....... X X X X X X 

Limnations ..................... X X X X X X 

General requirements 

for shippers ................ X X ........................ ........................ ........................ ........................ Classification ................. X X ........................ ........................ ........................ ........................ list of hazardous materials ............................ X X ........................ ........................ X . ....................... General packing requirements ......................... X X ........................ ........................ ........................ . ....................... Labeling and marking .... X X X X X X 

Hazardous materials 

transport document 

and other relevan! 

documentation ........... X X . ....................... ........................ ........................ ........................ . Acceptance procedures ........................ X ........................ ........................ ........................ ........................ Recognition of 

undeclared hazardous 

materials .................... X X X X X X 

Storage and loading 

procedures ................. ........................ X X ........................ X . ....................... Pilots' notification .......... ........................ X X ........................ X . ....................... Provisions for passengers and crew ...... ........................ X X X X X 

Emergency procedures X X X X X X 

Note 1. Depending on the responsibilities of the person, the aspects. of training to be covered may vary from those shown in the table. 

Note 2. When a person offers a consignment of hazmat, including COMAT, for or on behalf of the certificate holder, then the parson must be trained In the eertHieate holde~s training program and comply with shipper responsibilities and training. If offering goods on another certificate holde~s equipment, the person must be trained In compliance with the training requirements In 49 CFR. All shippers of hazmat must be trained under 49 CFR. The Shipper functions in 49 CFR mirror the training aspects that must be covered for any shipper offering hazma! for transport. 

Note 3. When an operator, Its subsidiary, or an agent of the operator Is undertaking the responsibilities of acceptance staff, such as the passenger handling staff accepting smalt parcel cargo, the certfficate hotder, Its subsidy, or the agent must be trained In the certillcate holde~s training program and comply with the acceptance staff training requirements. 

285 

• 

". 

In the Matter of: 

UNITED STATES OF AMERICA 

DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

FAA Docket No. CP09NM0010 

Federal Express Corporation 

Respondent 

) 

) 

) 

) 

) 

) FAA Case No. 2007NM700156 

) 

--------------------------) 

The Honorable Richard C. Goodwin 

POST -HEARING BRIEF OF RESPONDENT 

At the conclusion of the October 25, 2010 hearing in this matter, the Honorable 

Judge provided the parties the opportunity to file briefs on the issues. Pursuant to Section 

13.231(c) of the Rules of Practice in FAA Civil Penalty Actions (14 C.F.R. §13.231(c», 

Respondent, by and through undersigned counsel, hereby files this Post-Hearing Brief. 

I. INTRODUCTION 

This case arose out of an inspection by two F ederal Aviation Administration 

("FAA") agents on or about August 21, 2007 at the Medford, Oregon facility operated by 

Respondent, Federal Express Corporation d/b/a FedEx Express (hereinafter refened to as 

"FedEx Express"). During the course of the FAA's inspection, the agents observed and 

gathered information concerning two shipments tendered to and transpOlied by FedEx 

Express, which they believed did not comply with the regulatory requirements for such 

goods. A Letter of Investigation was issued by the FAA and answered by FedEx Express. 

A Notice of Proposed Civil Penalty was issued and ultimately a Complaint was filed by 
the FAA, which FedEx Express answered. The parties exchanged discovery, and the case 

was set for hearing. The hearing occUlTed in POliland, Oregon on October 25,2010, with 

the Honorable Richard Goodwin, Administrative Law Judge, presiding. 

II. THE FACTS AND TESTIMONY 

FedEx Express is a federally certified all-cargo air carrier headquartered in 

Memphis, Tennessee. l The two shipments at issue were tendered by AstraZeneca to 

FedEx Express on or about August 21,2007 in Baltimore, Maryland. The shipments bore 

FedEx Express shipping labels with FedEx Express tracking numbers, and the shipper 

affixed these labels directly to the freight. (Tr. at 143, lines 9-12; Exhibit C-9.) The 

shipments were loaded into the freight container by the shipper, not by FedEx Express 

personnel. (Tr. at 143, lines 13-17; Exhibit C-9.) Each shipment had an "ORM-D" 

marking, which is acceptable for ground transportation. (Tr. at 78, lines 8-16.) The 

shipper had only previously offered such shipments via ground service (Tr. at 139, lines 

14-16; Exhibit C-9) so past practice did not give FedEx Express any clue that hazardous 

materials / dangerous goods might be offered for air transportation. 

The shipper provided no shipping papers for either shipment. The shipper used 

the automated system to prepare the bar codes for these packages. (Tr. at 125.) This 

system includes a direct question whether the shipment contains hazardous materials / 

dangerous goods. (Id.) This shipper said it did not, and FedEx Express relied on this 

representation from the shipper that the shipment did not contain hazardous materials / 

dangerous goods. Hazardous materials / dangerous goods compliance is a shared 

1 Despite the assertion in footnote 3 of the Complainant's brief, FedEx Express conceded nothing, via its 

counsel's opening statement, on the appropriateness of the FAA's application of the Administrator's 

Sanction Guidance. In the opening statement, FedEx Express counsel was merely providing company 

background and overview information. (Tr. at 9.) Moreover, counsel statements are not evidence. 

2 
responsibility depending primarily on the shipper advising the carrier of the presence of 

hazardous materials / dangerous goods. (Tr. at 131, lines 15-20.) 

During the testimony of FAA Special Agent Donald Stiger, he testified that the 

FedEx Express tracking documentation contained in Exhibit C-2 indicated how many 

times a package was physically scanned by FedEx Express personnel. (Tr. at 38-42.) 

However, on cross examination, Agent Stiger admitted that he did not know whether 

every ently on the tracking documentation contained in Exhibit C-2 represented physical 

or machine scans. (Tr. at 75-76.) In fact, automation plays a large role in FedEx Express 

operations. (See generally, Tr. at 122-126.) Agent Stiger also testified that, despite 

indicating in his agent statement that each package had the ORM-D marking on both 

sides of the respective boxes, he did not have photographic evidence to support that. 

(Exhibits C-1 and C-3; Tr. at 78, line 4 - Tr. at 79, lines 1-7.) FedEx Express Corporate 

Safety Advisor David Littlejohn testified that the ORM-D mark only need appear on a 

single side of the package. (Tr. at 145, lines 15-21.) This is consistent with 49 C.F.R. 

§172.316(a). 

Agent Stiger fmiher testified that he believed that the classification of the item 

was ethanol/alcohol solutions, UN 1170, hazard class 3, Packing Group III. (See 

generally, Tr. at 34 and 53.) He testified that, for sanction determining purposes, he 

believed that the item shipped was in Category B and not Category C. (Tr. at 87, lines 

20- Tr. at 88, lines 1-12.) 

Testimony was also provided concerning the history of ORM-D as a hazard class 

(Tr. at 146), the recognition problem experienced by carriers (Tr. at 148, lines 19 - Tr. 

3 
at 149, lines 1-9), and the acknowledgement of the problem by U.S. government and 

international associations as well. (Tr. at 152-154.) 

III. ARGUMENT 

A. The ORM-D mark on the two shipments at issue was not sufficient indication 

to provide the requisite knowledge that the shipments contained hazardous 

materials / dangerous goods. 

F edEx Express does not deny that it transported the shipments at issue in this 

proceeding? However, the applicable regulations and FedEx Express policies establish 

a system by which shippers of hazardous materials / dangerous goods are to communicate 

the presence of those materials in a package. 49 C.F.R. § 173.22. Here, specifically, the 

shipper did not provide any shipping papers or any verbal notification that either 

shipment contained hazardous materials / dangerous goods. This misrepresentation put 

FedEx Express at a disadvantage in having to discover that the shipper provided false 

information. 

Since the shipping labels affixed to the shipments were applied by the shipper and 

loaded into the freight container by the shipper, the opportunities for FedEx Express to 

have seen the insufficient marking of ORM-D during processing operations were limited. 

This is especially salient given that there was no paperwork or notification provided by 

the shipper about the shipments containing hazardous materials / dangerous goods. 

Additionally, the shipper's past practice of never offering hazardous materials/ dangerous 

goods shipments for air transpOliation amplified the potential for the shipper's 

misrepresentation. 

2 It is important to clarify what is provided in the Procedural Summary of the FAA's brief regarding what 

FedEx Express admitted in its Answer. (Complainant's Brief at p. 1.) In Section II(4)-(6) of its Answer, 

FedEx Express admitted only that it transpOlted the shipments at issue. In Section V of its Answer, .FedEx 

Express denied any allegation not specifically addressed. 

4 
With regard to the Consumer Commodity3 I ORM-D mark itself, the mark is not 

required to appear in a particular location on a package, nor is it required to be of a 

specific size or color. 49 C.F .R. § 172.316. The only reference to dimensions is that the 

rectangular border sun-ounding the ORM-D mark must be 14" from the letters, but 

nothing prescribes the size of the letters. Although FAA Agent Stiger said the ORM-D 

mark was on two sides of both packages, no regulation requires dual marking. Further, 

the FAA offered no photographic evidence confirming that the mark appeared on two 

sides of the shipments at issue. (Exhibits C-1 and C-3; Tr. at 78, line 4 - Tr. at 79, lines 

1-7.) Based on the evidence, one can only conclude that the mark was in only one 

location. 

B. The ORM-D mark has been confusing for years, and the U.S. through the 

United Nations has eliminated that confusion through rulemaking. 

All regulatory codes based upon the United Nations ("UN") Model Regulations 

on the Transport of Dangerous Goods, including the International Civil Aviation 

Organization ("ICAO") Technical Instructions, utilize a 100 mm x 100 mm colored 

diamond, bearing a symbol of the hazard and the number of the UN classification, to 

communicate the presence of hazardous material. (United Nations Model Regulations on 

the Transport of Dangerous Goods, 5.2.2; International Maritime Dangerous Goods 

Code, 5.2.2.2.2; ICAO Technical Instructions, Chapter 3, section 3.5.1.1; TranspOli 

Canada Transport of Dangerous Goods Regulations, 4.6 and 4.7l 

The ORM-D mark is unique to the United States. It was not in the ICAO 

Technical Instructions, which include the shipping description "Consumer commodity, 

3 Consumer commodities are materials able to be classified as suitable for retail sale for personal and 

household use purposes. (ICAO Packing Instruction Y963.) 

4 International codes are adopted by the U.S. through 49 C.F.R. § 171.12 and § 171.23. 

5 
ID 8000" but require a diamond-shaped Class 9 label and full shipping document. (ICAO 

List of Dangerous Goods and Packing Instruction Y963.) 

By divergent shape, lack of prescribed color, and lack of prescribed size or 

location, the ORM-D mark is unique. A unique provision is particularly difficult to teach 

to thousands of personnel handling packages in international air commerce who 

otherwise are told that a diamond is the primary signal by which to designate a hazardous 

material/dangerous goods. (Tr. at 128, line 21 - Tr. at 129, lines 1-9). 

The United States delegate to the UN chaired the UN Committee of Experts when 

this subject of non-harmonized marking of small packaged products was raised, discussed 

in several meetings, and ultimately resolved in an effort to change to a more effective, 

coherent, and harmonized standard hazardous materials mark. That resolution, adopted 

by the UN in December 2008, calls for a 100 mm x 100 mm diamond mark, and that 

mark is now in effect in all modes of international commerce (ICAO Technical 

Instructions, Chapter 4, section 4.5; International Maritime Dangerous Goode Code, 

3.4.5; European Agreement Concerning the International CalTiage of Dangerous Goods 

by Road (ADR) 3.4.7 and 3.4.8.0.) It has been implemented in final form by the United 

States through rulemaking Docket No. PHMSA 2009-0126 (HM-215K). 76 Fed. Reg. 

3308 (January 19,2011). 

The ineffectiveness of the ORM-D communication was recognized by FedEx 

Express prior to the Pipeline and Hazardous Materials Safety Administration's 

("PHMSA") rulemaking activities. (Tr. at 148, line 19 - Tr. at 149, lines 1-9.) FedEx 

Express formally petitioned PHMSA to eliminate this marking and to revise consumer 

commodity requirements to address the inconsistent requirements for ground and air 

6 
shipping of such items and to be consistent with worldwide regulations. (Id. and 

Respondent's Exhibits A-C.) The PHMSA response to the FedEx Express petition for 

rulemaking acknowledged the inadequacy of the ORM-D mark as a means of hazard 

communication: "We agree that increasing the visibility of the consumer commodity 

packages to enhance package marking and labeling would make them more readily 

identifiable during transpOliation." (Tr. at 152, lines 8-12; Respondent's Exhibit B.) 

FAA has characterized FedEx Express' regulatory efforts on ORM-Ds as effOlis 

to change a regulation FedEx Express opposes. (Complainant's Brief at p. 12.) Such a 

characterization misses the point. FedEx Express presents such information to 

demonstrate its active regulatory involvement regarding the ORM-D mark and the 

recognition problem it presents for calTiers and shippers alike. PHMSA's rulemaking 

activities on the matter evidences the government's acknowledgement that a problem 

exists and regulatory action is necessary to address it. FedEx Express would submit that 

the FAA, in determining that a penalty was required and in setting the penalty amount, 

failed to give adequate consideration to this widely-known problem with a nonhatmonized mark under the statutory considerations of "the nature, circumstances, extent, 

and gravity ofthe violation" required by 49 U.S.C. §5123(c). 

C. The proposed civil penalty is not appropriate under the facts and 

circumstances of this case. 

The proposed civil penalty of $37,500 is excessive and should be substantially 

reduced by the Court.s Pursuant to 14 C.F.R. §13.224(a), the Complainant must show 

that the proposed civil penalty is appropriate. In the Matter of William A. Luker, Jr., 

2010 FAA LEXIS 99, FAA Docket No. CP09SW0008, at *14. The FAA has 

7 
promulgated guidance for proposing penalties, but "this Guidance [ sic] is not binding on 

respondents or administrative law judges in setting penalties." rd. 

FedEx Express would also point out that Administrative Law Judges, under the 

provisions of the FAA Civil Penalty Administrative Assessment Act and the provisions 

of 14 C.F .R. § 13 .16, have the statutory and regulatory authority to reduce the penalty to 

an amount that they deem just and appropriate: 

Unless an appeal is filed with the FAA decisionmaker in a timely manner, 

an initial decision or order of an administrative law judge shall be 

considered an order assessing civil penalty if an administrative law judge 

finds that an alleged violation occurred, and determines that a civil 

penalty, in an amount found appropriate by the administrative law judge, 

is warranted (Emphasis added.) 14 C.F.R §13.16(d)(3). 

The clear and unambiguous language of that regulation indicates that the Administrative 

Law Judge not only has the authority and obligation to determine whether a regulatory 

violation has occUlTed, but is also tasked with deciding whether a civil penalty is 

warranted at all, and if so, for what amount. FedEx Express acknowledges that a 

reasonable amount of deference is to be afforded to the FAA's enforcement mechanisms, 

including the Administrator's Sanction Guidance, but contends that such deference does 

not equate to a "lUbber stamp." 

FedEx Express disagrees with the FAA's categorization of the items contained in 

the two shipments at issue here as Risk Category B. (Tr. at 62-63.) The Administrator's 

Sanction Guidance when adopted and when incorporated by the FAA appropriately 

assigns the highest penalty assessments to the most hazardous materials such as 

5 FedEx Express does not contend, for the purposes of this argument, that it lacks the ability to pay the civil 

penalty or that the penalty would affect its ability to continue in business. 

8 
explosives and toxic inhalation hazards. (Exhibit C-I0.) It is a declining scale, however, 

where the lower the hazard, the less the figure to be applied in utilizing the matrix. 

The lowest category references ORM-D materials. (Exhibit C-I0.) Consumer 

commodity, ORM-D, is not subject to any regulations in the rail, highway, or water 

modes of transportation under 49 C.F.R. (Tr. at 137, lines 13-19.) The Sanction 

Guidance does not say "ORM-D-AIR" meaning those materials properly prepared for air 

transport. Instead, the Guidance describes those materials for which the ORM-D option 

would be available. 

The Sanction Guidance also does not say that materials must have been packaged 

for air transport or declared as ORM-D. Here, the shipments offered by AstraZeneca 

were marked ORM-D. (Tr. at 78, lines 8-16.) The shipments contained hand sanitizer. 

(Tr. at 32, lines 13-16.) In 49 C.F.R. §172.101, this material, an alcohol mixture that 

might have been initially described as "UN 1170, Ethyl alcohol solutions, 3, PG III" is 

authorized for transport aboard passenger aircraft in inner receptacles having a capacity 

of 60 liters. It is refelTed to the limited quantity relief described in 49 C.F.R. § 173 .150. 

That section, in paragraph (c) states that materials meeting these size limits, may be 

shipped as consumer commodities. 49 C.F.R. §173.150(c). 

The position taken by the FAA is that the Sanction Guidance requires a material 

to meet the requirements of ORM-D-AIR in order to fit the lowest penalty category. The 

Sanction Guidance does not say that, nor does that Federal Register page of Docket No. 

HM-228 cited by FAA counsel (Tr. at 166, line 13), which pertained only to the 

imposition of acceptance inspection criteria of 49 C.F.R. § 175.30 on ORM materials. 

9 
Furthermore, the Sanction Guidance document at page C-8 does not require the 

material to have been properly prepared for air shipment. "That the material could have 

been shipped as a consumer commodity can also be a mitigating factor." (Emphasis 

added; FAA Order 2150.3B, Appendix C at C-8.) This shipment not only could have 

been, but was shipped as a consumer commodity. The fact that added steps with regard 

to the packaging and documentation would have been required to convert this to an 

ORM-D-AIR shipment is not relevant to the fact that under the DOT regulations this 

material could have been and was shipped as ORM-D. 

The FAA misapplied the Sanction Guidance in this instance, and made a mistake 

when calculating the penalty figure. They applied a higher hazard category than 

described in the matrix, which clearly offers the lowest dollar amount for materials that 

could have been shipped as ORM-D and, in fact, were shipped as ORM-D in this case. 

By the FAA's designation and the MSDS for the hand sanitizer that was shipped, 

the substance contains ethyl alcohol. (Tr. at 52, lines 15-19.) Ethyl alcohol is the primary 

hazardous material in alcoholic beverages. Exceptions for Class 3 in 49 C.F.R. 

§173.150(d) provide full relief from all regulation by passenger aircraft when alcoholic 

beverages are in checked or carry-on baggage up to 5 liters. 49 C.F.R. §173.150(d). The 

hand sanitizer shipped was not an alcoholic beverage, but the level of safety is 

established by the 49 C.F.R. § 173.150 for ethyl alcohol products. While this shipment 

would have been subject to regulations because it is not potable, that parallel as it 

establishes an acceptable level of safety should have been considered in the penalty 

calculation process and should have resulted in a penalty assessment at a lower level. 

10 
FedEx Express further asserts that multiple mitigating factors were present in this 

case, but were generally disregarded by the FAA in this case. The FAA contends that no 

weight should be given to the fact that the shipments did not cause damage or harm. (Tr. 

at 62, line 20 - Tr. at 63, lines 1-5.) It is undisputed that the shipments in this case did 

not cause any damage or harm. (See generally, Tr. at 62, line 20 - Tr. at 63, line 1; Tr. at 

79-80.) Negative weight would have been assessed, for penalty calculation purposes, if 

the shipments had caused damage or harm. The lack of damage or harm, however, is 

given no weight at all. This is unfair. If a "yes" response to a "did the shipment cause 

damage or harm" question is used against a can'ier, then clearly a "no" answer should be 

afforded favorable weight in the penalty calculation process. 

The FAA also asserts that FedEx Express did not reasonably rely on inconect 

information from another source. (Tr. at 63, line 20 - Tr. at 64, lines 1-5.) It is 

undisputed that the shipper provided no shipping papers for these shipments. Further, per 

the DOT's own regulatory interpretation, the shipper bears the primary compliance 

responsibility for conforming to the requirements of the Hazardous Materials 

Regulations. 63 Fed. Reg. 30411 (June 4, 1998). As set forth above, neither the shipper 

nor the shipments as marked and loaded by the shipper provided sufficient indication that 

the shipments contained hazardous materials I dangerous goods. (Sections II and IILA, 

supra.) Accordingly, FedEx Express reasonably relied, to its detriment, on misrepresented 

information (i.e., incorrect) from another source. FedEx Express should be given the 

benefit of that detelmination for penalty review purposes. (See Exhibit C-IO at page 

19446.) 

11 
Ihe FAA also minimized the corrective action taken by FedEx Express in 

connection with this matter. (Tr. at 58, lines 7-20; Ir. at 82-85.) There was substantial 

testimony at trial that FedEx Express takes its regulatory responsibilities very seriously 

and has created a huge infrastructure to ensure that its transportation of hazardous 

materials I dangerous goods is accomplished reliably and safely. (See generally, Tr. at 

104-114.) FedEx Express handles more hazardous materials I dangerous goods shipments 

per day than any carrier in the world, estimated by FedEx Express Corporate Safety 

Senior Manager Patrick Oppenheimer as less than 1 percent of the more than 3 million 

packages accepted daily. (Tr. at 115, line 6.) When an error is discovered concerning a 

hazardous materials I dangerous goods shipment that has been offered to FedEx Express, 

the company's Dangerous Goods Administration team immediately conducts an 

investigation and works with management of the facility where the shipment at issue was 

processed and the shipper to address the situation, all of which was done in this matter. 

(Tr. at 144-145; Exhibit C-9.) 

Specifically in this matter, management was notified and the shipper was 

contacted. (Tr. at 144, lines 1-6; Exhibit C-9.) Hazardous materials I dangerous goods 

shipments from this shipper were embargoed until proof of hazardous materials I 

dangerous goods training was provided. (Tr. at 144, lines 7-11; Exhibit C-9.) 

Management reiterated correct policies and procedures and distributed an ORM-D job aid 

to all employees at their facility to help avoid a similar occurrence. (Exhibit C-9.) 

As a further corrective step, a processing change was implemented whereby 

personnel physically scan all shipping labels when affixed to packages offered by this 

shipper. (II'. at 144, lines 12-15; Exhibit C-9.) This practice was instituted to assist 

12 
specifically in preventing further occurrences such as the one involved in the case at bar 

and is the type of systemic change that should be afforded the type of "greater 

consideration" referenced in the Administrator's Sanction Guidance. (See Exhibit C-10 at 

19447.) It should also be noted that all the corrective measures described here were taken 

shortly after FedEx Express became aware ofthe two shipments at issue here, as opposed 

to being taken after the issuance of a Notice of Civil Penalty.6 

FAA Agent Stiger, in explaining his recommendation for a penalty figure, did not 

credit any of the FedEx Express corrective actions. In his view, actions above and 

beyond the regulations need to have been taken to validate credit on a penalty calculation. 

(Tr. at 58, lines 3-20.) No such criterion appears in the Sanction Guidance. Furthermore, 

as outlined above, F edEx Express took several actions such as the embargo that are not 

required by any regulation. 

FedEx Express believes that the Administrative Law Judge has ample evidence in 

the record to order a substantial reduction of the civil penalty assessed in this case, given 

the misuse of the Sanction Guidance by the FAA. FedEx Express does not deny that it 

has an FAA hazardous materials/dangerous goods compliance history, which the FAA 

considered an aggravating factor when calculating the $37,500 civil penalty. However, 

FAA Agent Stiger, indicated during his testimony that he was unaware of the fact that 

FedEx Express normally transports approximately 30,000 regulated hazardous 

materials/dangerous goods shipments daily. (Tr. at 90, lines 18-22; Tr. at 91, lines 1-2; 

Tr. 115, lines 4-6.) He refused to acknowledge that the 0ppOliunity for human enor could 

be greater for a carrier transporting such a high number of shipments on a daily basis 

6 FedEx Express' Letter of Response to the FAA's Letter ofInvestigation was submitted on or about 

September 6, 2007. (Exhibit C-9.) The FAA issued a Notice of Proposed Civil Penalty on the matter on or 

13 
when compared to one transporting a substantially lesser amount. (Tr. at 91, line 18 -

Tr. at 92, lines 1-5.) FedEx Express asserts that the extensive infrastructure that it has 

created, in the form of training programs and systems, to ensure the safe and compliant 

transportation of hazardous materials/dangerous goods, is indicative of a positive 

regulatory attitude, and not a "recalcitrant" one as characterized by the FAA. 

(Complainant's Brief at p. 10.) This should be considered a mitigating factor in the 

equation for assessing any penalty. 

IV. CONCLUSION 

Respondent, Federal Express Corporation d/b/a FedEx Express, respectfully 

requests that, in light of the foregoing discussion and argument, the proposed civil 

penalty of$37,500 is excessive and should be substantially reduced by the Court. 

Respectfully submitted, 

FEDERAL EXPRESS CORPORATION 

~~mef ~Qk--- Senior Attorney - Regulatory Affairs 

Federal Express Corporation 

3620 Hacks Cross Road 

Building B, 3rd Floor 

Memphis, TN 38125 

(901) 434-8632 

(901) 434-8283 FAX 

Lawrence W. Bierlein 

1101 30th Street, NW 

Suite 500 

Washington, DC 20007 

(202) 625-8355 

(202) 625-4363 FAX 

about February 26,2008. (See Complaint, Section I; Answer, Section 1.) 

14 
CERTIFICATE OF SERVICE 

I certify that a true and correct copy ofthe foregoing was forwarded via facsimile 

and FedEx Overnight delivery on the I f6-1"'" day of February, 2011, to: 

The Honorable Richard C. Goodwin, Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of TranspOliation 

1200 New Jersey Avenue, SE 

East Building Ground Floor, Room E12-320 

Washington, DC 20590 

FAX: (202) 366-7536 

Federal Aviation Administration 

800 Independence Avenue, SW 

Wilbur Wright Building, Suite 2W1000 

Washington, DC 20591 

Attn: Hearing Docket Clerk, AGC-430 

FAX: (202) 493-5142 

Mr. Scott R. Morris, Esq. 

Federal Aviation Administration 

Office of the Regional Counsel- Northwest Mountain Region 

1601 Lind Avenue SW 

Renton, W A 98057 

FAX: (425) 227-1007 

15