Inthe Matter of: EmpireAirlines, Inc., Respondent UNITED STATES OF AMERICA DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, D.C. ) ) ) ) ) ) ) FAADocketNo. CP09NM0009

FAA Case No. 2007NM700155 

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TheHonorableRichard C. Goodwin POST-HEARINGBRIEF OFRESPONDENT At the conclusion of the October 26-27, 2010 hearing in this matter, the Honorable Judge providedthepartiesthe opportunityto file briefs onthe issues. Pursuant to Section 13.231(c) ofthe Rules ofPractice 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 outofan inspectionby two FederalAviationAdministration ("FAA") agents onor about August 21-22, 2007 at the Medford, Oregonfacility operated by Federal Express Corporation d/b/a FedEx Express (hereinafter referred to as "FedEx Express"). During the course ofthe 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. (hereinafterrefenedto as "Empire"),provides regionalcargo airline support for FedEx Express. Pursuant to that role, Empire transported shipments, includingthe two noted above, from Portland, Oregonto Medford, Oregonfor FedEx Express. The FAA also obtained information during this inspection that they believed indicated that the pilot had changed the location ofcertain hazardous materials/ dangerous goods packages without appropriately documenting the change. A Letter ofInvestigation was issued by the FAA and answered by Empire. A Notice ofProposed Civil Penalty was issued and ultimately a Complaint was filed bythe 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 HonorableRichard Goodwin, AdministrativeLaw Judge, presiding. 

### II. THE FACTS AND TESTIMONY Empireis a federally certified all-cargo air carrierheadquartered inHayden, 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 onbehalfofFedEx Express are owned andregisteredbyFedExExpress. (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 AstraZenecato FedEx Express on or about August 21,2007 in Baltimore, Maryland, and

1 Inthe Procedural Sunnnary ofits brief, the FAA describes some ofEmpire'sresponses in its Answer as non-responsive. (Complainant's Briefat 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 ofits Answer, Empire specifically denied any allegation notspecifically addressed.

2the 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 inMedford, Oregon, however, theFAAnoticedtwo 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' behalfon 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.)

3Regarding the loading change of certain hazardous materials / dangerous goods shipments from Position 1to Pod C onFlight 8678-22, Empire requested that the FedEx Express loading personnel change the location ofthis 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 electronicmanifesting system, butthat didnot occur. (kL and Tr. at 179.) 

### III. ARGUMENT A. Empireprovidesregional air cargo supportfor FedExExpress andis not responsible for accepting, inspecting, orloadingFedExExpress packages. Empire does not dispute that it has its own air carrier certificate, that it operated Flights 8677-22 and 8678-22 discussed inthis proceeding and that the two aircraft flown for those flights were on its Operations Specifications. Empire does dispute, though, that itis responsible for theregulatory violations notedintheFAA's Complaint. Empire does not accept, inspectorphysically load FedExExpress 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 ofpackages, 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.)

4In its brief, the FAAcites cases thatitcontends supportthe positionthatEmpire 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 providedby entities withwhichrespondents hadcontracted. Inthe Matter ofAlaska Airlines, 2004 FAA LEXIS 905, FAA OrderNo. 2004-8 (Oct. 4, 2004); Inthe Matter of Empire Airlines, 2000 FAA LEXIS 648, FAA OrderNo. 2000-13 (June 8, 2000); Inthe Matter ofUS Air, Inc., 1992 FAA LEXIS 352, FAA OrderNo. 92-70 (Dec. 21,1992); and Inthe Matter ofWestAir Commuter, 1995 FAA LEXIS 342, FAA OrderNo. 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 ofbeing 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 inthe Empire position, United, faced enforcement action for circumstances relatedto the matters raised in WestAir's case. In the Matter ofWestAir 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

5similar violations as being sought in a separate case against FedEx Express. (See FAA DocketNo. 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. Inthe Matter ofEmpire 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 doesrely, 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, SectionIILD, infra.) B. Empirehadneither actual nor constructiveknowledge thatthe shipments at issue containedhazardous materials/ dangerous goods. Thefacts and evidenceclearly establishthatEmpire neitherknewnorhad 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 ofTransportation issued a multi-modal interpretation in 1998 ofthe HMR concerning the responsibility of a carrier when transporting hazardous materials /

6dangerous goods for in commerce. Empire maintains that the minimal "ORM-D" marking simply does not provide sufficientvisual recognition to air carrier personnel and does not adequately indicatethepresenceofhazardous 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 notprovide any shipping papers or any verbal indication to FedEx Express that either shipment contained hazardous materials / dangerous goods. (See Section II, supra.) This misrepresentation putFedExExpress, the carrierprocessing andtransportingthepackages inits system, at a disadvantage inhaving to discover thatthe shipperprovided false information. Empire's role in that process included only the providing of supplemental air cargo services for FedEx Express. Empire was at an even greater disadvantage than FedEx Express and likewise had no information sufficientto indicatethatthe 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, ifat 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, whichthereby resulted inEmpire nothavingthe appropriate infOlmationeither.

7The FAA's argumentthatthe ORM-D markings were immediately adjacentto the FedEx Express label and were in immediate proximity to documents to be scanned for package tracking purposes2 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 ofthe 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 behalfofFedEx Express. That information indicated that no hazardous materials 

### Idangerous goods were aboard Flight 8677-22 anditwasrepresentedto 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 ofthe letters. Although FAA Agent Stiger said the ORM-D mark was on two sides ofboth packages, no regulation requires dual marking. Further, the FAA offered no photographic evidence confhming that the mark appeared on two sides ofthe shipments at issue. (Exhibits C-1 and C-8; Tr. at 84, lines 6-14.) Basedon the

2 Empire acknowledges that it admitted, albeit with some qualifications, Complainant's Requests for Admissions #3-6 referenced on page 11 ofthe FAA's brief. In preparing those responses, Empire had the photographs from Exhibit C-8 which do show the position ofthe markings vis-a.-vis the shipping labels. Empire maintains, however, that itdid notknow nor have reason to know that those markings were onthe two shipments at issue atthetime ofthe mattersraisedin the Complaint. 3 Consumer commodities are materials able to be classified as suitable for retail sale for personal and householdusepurposes. (ICAO PackingInstructionY963.)

8evidence, one can only conclude that the mark was in only one location. Under such circumstances, therefore, Empire exercisedreasonable care: there was great likelihoodfor the marknotto be seen, especially giventhe distinctpossibility thatthe non-marked ends could have been the only ends visible during the FedEx Express loading operations that Empire'spilot 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 Briefatp. 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 onboard 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 ofone 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.

9Imposing 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 ofthe aircraft they fly. In the Matter of Empire Airlines, 2000 FAALEXIS 648 at 

## *24, FAA OrderNo. 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, SectionlILD, infra.) C. Empirehadneither actual nor constructiveknowledgethatthe informationwas not changedinthe FedEx Express electronic manifesting systemto reflectEmpire'sloading change onFlight 8678- 22. The facts and evidence also clearly establishthatEmpireneitherknewnorhad 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 ofparticular 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), butthe FAArefusedto acknowledge thatthe changehadbeen 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).) Itwas Empire's expectationthatFedExExpress ramp operations personnel would make the change inthe 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 FAAcertificated repair station to do the repair and had no reason to suspect the repair station didnotmakethe repairs properly.) D. Empire is not obligatedunder the FederalAviationRegulations 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 ofthe Empire employee, the flight crew, is to fly and otherwise operatethe aircraft safely. Hazardous materials / dangerous goods employee training was the topic ofmajor 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 needto dete1mine the level, content and durationoftraining." 

### ilih at 58812.) Similarly, in the preamble to this rulemaking, the FAA said, "The type ofhazmat training necessary depends upon thejob function performed or directly supervised. It

### is the responsibility ofthe certificate holder to ensure that the level oftraining is adequate

11and appropriate for each worker's job function. The specific level and duration of trainingis detenninedby the certificateholder, nottheFAA." (Id. at 58813.) The ultimate outcome of this significant rulemaking was the adoption of Appendix 0 to Part 121 oftitle 14 C.F.R. (Copy attached.) Table 1 ofthat Appendix outlines requirements for operators that transport hazardous material/dangerous goods, i.e., will-cany certificate holders. Empire is such a certificateholder. The format ofTable 1 is to list functions in Column 1, and then various types of employees in parallel columns, with an "X" in those columns ifthat type ofemployee mustreceive thattype oftraining. Specifically, the list offunctions include: "Acceptance procedures," inother words, the inspectionrequirements of49 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 ofhazardous materials / dangerous goods, such as storage and loadingprocedures and notification ofthe pilot, butnotacceptanceprocedures. As shownby the facts andtestimony, theEmpire pilots do not conduct acceptance procedures, any more than any FedExExpresspilotwould, and like FedExExpress 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. Aproposed civilpenaltyis notappropriateunderthe facts and circumstances ofthis case. Empire argues that, given the facts and circumstances ofthis case, a civil penalty at all is not appropriate. Pursuant to 14 C.F.R. §13.224(a), the Complainant must show

12that the proposed civil penalty is appropriate. In the Matter ofWilliam 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 lawjudges 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 civilpenalty is wan'anted atall: Unless an appeal is filed with the FAA decisionmaker in a timely manner, an initial decision or order of an administrative lawjudge shall be considered an order assessing civil penalty if an administrative lawjudgefinds that an alleged violation occurred, and determines that a civil penalty, in an amountfound appropriate by the administrative lawjudge, is warranted. (Emphasis added). 14 C.F.R §13.16(d)(3). In this case, the FAA has proposed $20,000 as a civilpenalty 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 ofWestAir 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 whenthere are not separate and distinctviolations. Here, theFAAis seeking a civilpenalty from Empire for circumstancesinvolving

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

13constructive knowledge that the change was not made. (See Section lII.C, supra.) Even thoughEmpire contends thatitlacks therequisiteknowledgefor civilpenaltypurposes, it wishes to note that, nonetheless, it took swift action to strengthen procedures to avoid being in a position again were it is placed injeopardy, as seen with the paperwork issue involvedwithFlight 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 ofthe HMR. Additionally, it is undisputed that none ofthe 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, oninconectinformationreceivedfrom another source. (See, Sections III.B-C, supra.) Moreover, the Federal AviationRegulations do notrequire thatEmpire'spilots betrained inpackage acceptance and inspection. (See, SectionlII.D, infra.) These facts and circumstances should have borne more significance inthe FAA's review and considerationofthis case. In sum, civil penalties incases involving the HMRare onlyto 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 inthis 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 ofa civil penalty." 63 Fed. Reg. 30411 (June 4, 1998). Empire submitsthatitis sucha canierinthis case.

14CERTIFICATE OF SERVICE I certifythat atrue and con'ect**cop~f**the foregoing was forwarded viafacsimile andFedExOvemightdelivery onthe**{~'** day ofFebruary, 2011,to: TheHonorableRichard C. Goodwin, AdministrativeLawJudge Office ofHearings, M-20 U.S. DepartmentofTransportation 1200NewJerseyAvenue, SE EastBuildingGroundFloor, RoomE12-320 Washington, DC20590 FAX: (202) 366-7536 FederalAviationAdministration 800 IndependenceAvenue, SW WilburWrightBuilding, Suite 2W1000 Washington, DC 20591 Attn: HearingDocketClerk, AGC-430 FAX: (202) 493-5142 Mr. Scott R. Morris, Esq. FederalAviationAdministration Office ofthe Regional Counsel-NOlihwestMountainRegion 1601 LindAvenue SW Renton, W A 98057 FAX: (425) 227-1007

# QO(M~**ffte~** Courtney E. elts

16Federal 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. andpart 135, subpartK ofthis chapter. The training requirements for var- ious categories ofpersons 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. Trainingrequirements for certificateholders pt, 121, App, 0 authorized in their operations specifications to transporthazardousmaterials (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)mustfollow 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 holdermustcertifythata testhasbeencompleted satisfactorily to verify understanding ofthe regulations andrequirements. 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 ........................ ........................ ........................ ........................ listof 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 

# • ".IntheMatter of: UNITED STATES OF AMERICA DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, D.C.

FAADocketNo. CP09NM0010 FederalExpress Corporation Respondent ) ) ) ) ) ) FAA Case No. 2007NM700156 ) 

### --------------------------) TheHonorableRichard C. Goodwin POST-HEARING BRIEF OFRESPONDENT At the conclusion ofthe October 25, 2010 hearing in this matter, the Honorable Judgeprovidedthe parties the opportunityto file briefs onthe issues. Pursuantto Section 13.231(c) ofthe Rules ofPractice in FAA Civil Penalty Actions (14 C.F.R. §13.231(c», Respondent, by andthroughundersigned counsel, herebyfiles this Post-HearingBrief. I. INTRODUCTION This case arose outofan inspectionbytwo Federal AviationAdministration ("FAA") agents onor about August 21, 2007 at the Medford, Oregon facility operated by Respondent, Federal Express Corporation d/b/aFedEx Express (hereinafter refenedto as "FedEx Express"). During the course ofthe 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 ofInvestigationwas issuedby the FAA and answeredbyFedEx Express. A Notice ofProposed Civil Penalty was issued and ultimately a Complaint was filed bythe FAA, which FedEx Express answered. The parties exchanged discovery, and the case

was set for hearing. The hearing occUlTed inPOliland, Oregon on October 25,2010, with the Honorable Richard Goodwin, Administrative LawJudge, presiding. II. THEFACTSAND 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 FedExExpress onor about August 21,2007 inBaltimore, 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 mightbe offered for airtransportation. 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 ofthe 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 notevidence.

2

### responsibility depending primarily on the shipper advising the carrier ofthe presence of hazardous materials/ dangerous goods. (Tr. at 131, lines 15-20.) During the testimony ofFAA 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 inExhibit C-2 represented physical

or machine scans. (Tr. at 75-76.) In fact, automationplays 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. at79, lines 1-7.) FedExExpress Corporate Safety Advisor David Littlejohn testified that the ORM-D mark only need appear on a single side ofthe 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 ofthe 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 ofORM-D as ahazard class (Tr. at 146), the recognition problem experienced by carriers (Tr. at 148, lines 19

- Tr.

3at 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 onthe two shipments atissue was not sufficientindication to providetherequisite knowledge thatthe shipments containedhazardous materials/ dangerous goods. FedExExpress does notdenythatittransportedthe shipments at issue inthis proceeding? However, the applicable regulations and FedEx Express policies establish

a systembywhich shippers ofhazardous materials/ dangerous goods are to communicate the presence ofthose 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. Sincethe shipping labels affixedto the shipments were appliedbythe shipper and loaded into the freight container by the shipper, the opportunities for FedEx Express to have seenthe insufficientmarking ofORM-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'spastpractice ofnever offering hazardous materials/ dangerous goods shipments for air transpOliation amplified the potential for the shipper's misrepresentation.

2 Itis importantto clarify what is provided inthe Procedural Summary ofthe FAA's briefregardingwhat FedExExpress admittedin its Answer. (Complainant's Briefatp. 1.) In SectionII(4)-(6) ofits Answer, FedExExpress admitted onlythat ittranspOltedthe shipments at issue. In SectionV ofits 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 ofthe letters. Although FAA Agent Stiger said the ORM-D mark was on two sides ofboth packages, no regulation requires dual marking. Further, the FAA offered no photographic evidence confirming that the mark appeared on two sides ofthe 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 markhas beenconfusingfor years, andtheU.S. throughthe UnitedNationshas eliminatedthat confusionthroughrulemaking. 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 ofthe hazard and the number ofthe UN classification, to communicate the presence ofhazardous 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 CanadaTransport ofDangerous 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 householduse purposes. (ICAOPackingInstruction Y963.) 4International codes are adoptedbythe U.S. through 49 C.F.R. §171.12 and §171.23.

5

### ID 8000" butrequire a diamond-shaped Class 9 label and full shipping document. (ICAO List ofDangerous 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 provisionis particularly difficultto teach to thousands of personnel handling packages in international air commerce who otherwise are toldthat a diamond isthe primary signalby whichto designate ahazardous material/dangerous goods. (Tr. at 128, line 21

- Tr. at 129, lines 1-9). The United States delegate to the UN chairedthe UN Committee ofExperts when this subjectofnon-harmonizedmarking ofsmallpackagedproducts 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 ofDangerous Goods by Road (ADR) 3.4.7 and 3.4.8.0.) Ithas 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 ofhazard communication: "We agree that increasing the visibility of the consumer commodity packages to enhance package marking and labeling would make them more readily identifiable duringtranspOliation." (Tr. at 152, lines 8-12; Respondent'sExhibitB.) 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 markunderthe statutory considerations of"thenature, circumstances, extent, and gravity oftheviolation"required by 49 U.S.C. §5123(c). C. Theproposed civilpenalty is not appropriate under the facts and circumstances ofthis 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 ofWilliam A. 

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

7promulgated guidance for proposing penalties, but "this Guidance [sic] is notbinding on respondents or administrative lawjudgesin settingpenalties." rd. FedEx Express would also point out that Administrative Law Judges, under the provisions ofthe 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

anamountthatthey deemjustand appropriate: Unless an appeal is filed withthe 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 lawjudge finds that an alleged violation occurred, and determines that a civil penalty, in an amount found appropriate by the administrative lawjudge, is warranted (Emphasis added.) 14 C.F.R §13.16(d)(3).

The clear and unambiguous language ofthat 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 ofdeference is to be afforded to the FAA's enforcementmechanisms, including the Administrator's Sanction Guidance, but contends that such deference does notequateto a "lUbber stamp." FedEx Express disagrees withthe FAA's categorization ofthe 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 FedExExpress does not contend, forthepurposes ofthis argument, thatitlacks the ability to paythe civil penalty orthat the penaltywould affect its abilityto continue in business.

8explosives and toxic inhalation hazards. (Exhibit C-I0.) It is a declining scale, however, where the lowerthe hazard, the less the figure to be applied inutilizingthe 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 wouldbe available. The Sanction Guidance also does not say that materials must have beenpackaged 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 of60 liters. Itis refelTed to the limited quantity reliefdescribed 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 meetthe requirements ofORM-D-AIRin orderto fit the lowestpenalty category. The Sanction Guidance does not say that, nor does that Federal Register page ofDocket No. HM-228 cited by FAA counsel (Tr. at 166, line 13), which pertained only to the imposition ofacceptance inspectioncriteria of49 C.F.R. §175.30 on ORM materials.

9Furthermore, the Sanction Guidance document at page C-8 does not require the material to have been properly prepared for air shipment. "Thatthe 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 couldhavebeen andwas shipped as ORM-D. The FAA misappliedthe 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, infact, were shipped as ORM-D inthis case. Bythe 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 theprimary hazardous material in alcoholic beverages. Exceptions for Class 3 in 49 C.F.R. §173.150(d) provide full relieffrom 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 calculationprocess and shouldhaveresultedin apenalty assessment at alowerlevel.

10FedEx Express further asserts that multiple mitigating factors were present inthis case, but were generally disregardedbythe FAA inthis case. The FAA contends thatno weight should be given to the fact thatthe shipments did not cause damage or harm. (Tr. at 62, line20

- Tr. at 63, lines 1-5.) 

### It is undisputed thatthe shipments inthis case did not cause any damage orharm. (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. Ifa "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 weightinthepenalty calculationprocess. 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 thatthe 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

northe shipments as marked and loaded by the shipperprovided sufficient indicationthat the shipments contained hazardous materials I dangerous goods. (Sections II and IILA, supra.) Accordingly, FedExExpressreasonably 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.)

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### 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 ofthe more than 3 million packages accepted daily. (Tr. at 115, line 6.) When an error is discovered concerning a hazardous materials I dangerous goods shipmentthat has been offered to FedEx Express, the company's Dangerous Goods Administration team immediately conducts an investigation and works withmanagement ofthe facility where the shipment at issue was processed and the shipper to address the situation, all ofwhich was done in this matter. (Tr. at 144-145; ExhibitC-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.) Managementreiterated correctpolicies and procedures and distributed an ORM-Djob aid to all employees attheirfacility 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

12specifically 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 inthe Administrator's Sanction Guidance. (See Exhibit C-10 at 19447.) Itshould also be noted that all the corrective measures described here were taken shortly after FedEx Express became aware ofthetwo shipments at issue here, as opposed to beingtaken after the issuance ofaNotice ofCivil Penalty.6 FAA Agent Stiger, in explaininghis recommendation for a penalty figure, did not credit any of the FedEx Express corrective actions. In his view, actions above and beyondthe regulations needto havebeentakento validate credit on apenalty calculation. (Tr. at58, lines 3-20.) No such criterion appears inthe Sanction Guidance. Furthermore,

as outlined above, FedEx Express took several actions such as the embargo that are not requiredby any regulation. FedEx Express believesthatthe Administrative Law Judge has ample evidence in the record to order a substantial reduction ofthe civil penalty assessed inthis case, given the misuse ofthe 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 ofthe 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 refusedto acknowledgethatthe 0ppOliunity for humanenorcould be greater for a carrier transporting such a high number of shipments on a daily basis

6 FedExExpress' Letter ofResponse to the FAA'sLetter ofInvestigationwas submittedon or about September 6, 2007. (ExhibitC-9.) The FAA issued aNotice ofProposed CivilPenalty onthe matter onor

13when 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 oftraining 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 equationfor assessing anypenalty. 

### IV. CONCLUSION Respondent, Federal Express Corporationd/b/aFedExExpress, respectfully requests that, in light of the foregoing discussion and argument, the proposed civil penalty of$37,500 is excessive and shouldbe substantiallyreducedbythe Court.

Respectfully submitted, FEDERALEXPRESS CORPORATION

# ~~mef**~Qk---** SeniorAttorney

- Regulatory Affairs FederalExpress Corporation 3620 Hacks Cross Road BuildingB, 3rdFloor 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 aboutFebruary26,2008. (See Complaint, SectionI; Answer, Section 1.)

14CERTIFICATE OF SERVICE I certifythat atrue and correctcopyoftheforegoing was forwarded viafacsimile andFedEx Overnightdelivery onthe 

### I

### f6-1"'" day ofFebruary, 2011, to:

The Honorable Richard C. Goodwin, AdministrativeLawJudge Office ofHearings, M-20 U.S. Department ofTranspOliation 1200NewJersey Avenue, SE EastBuilding GroundFloor, RoomE12-320 Washington, DC 20590 FAX: (202) 366-7536 FederalAviationAdministration 800 IndependenceAvenue, SW WilburWrightBuilding, Suite 2W1000 Washington, DC 20591 Attn: HearingDocket Clerk, AGC-430 FAX: (202) 493-5142 Mr. ScottR. Morris, Esq. FederalAviationAdministration Office ofthe Regional Counsel-NorthwestMountainRegion 1601 Lind Avenue SW Renton, W A 98057 FAX: (425) 227-1007

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