07/14/2011 THll 10:23 FAX 817 222 5092 regional counsel 11003/003 

..^mRTMENT OF 

. :);\I:/SP0RTATI0N 

-'•^-''tT OPERATIONS 

U.S. Depatlrnent 

of Transportation 

Foderc l Aviatio n 

Administration 

July 13,2011 

Hearing Docket 

Federal Aviation AdniinistraUon 

Attention: Hearing Docket Clerk, AGC-430 

600 Independence Avenue, SW 

Wilbur Wright Building, Suite 2W1000 

Washington, D.C. 20591 

Southv/est Region /j]! ' \]ji | O Q 

Arkansas. Louisiana, " • - - . u r-' 

New Mexico. Oklahoma 

Texas 

•^Offlce ot Regional Counsel. ASW-7 

J2601 Meacham Blvd. 

"Fort Worth. TX 76137 

(817)222-5099 

(817) 322-5945/5092 FAX 

/To^l 

Re: In the Matte r of National Bar o Company i 

FAA Case No. 2011SW700016 ^fT^m S ^-d ( '^H ^ Uol i -RUJad ^ - ^ .^^ ^ 

Enclosed you will tmd a copy of National Bam Company's request for a hearing dated June 2S, 

2011, and the original and one copy of the FAA's Complaint in the above-referenced 

proceeding. The FAA requests that the hearing in tliis matter be held in the Houston, Texas, 

area. As that is where the leuking packiige was discovered. As well as, UPS and FAA 

personnel are both located in Houston, Te.\as. We anticipate that the hearing will last one day. 

Please address all conmiLuiications with the FAA to tlie undersigned agency attorney, at; 

Federal Aviation Administration 

Southwest Region, ASW-7G 

2601 Meacham Blvd. 

Fort Worth, Texas 76137-4298 

Phone; 817-222-5078 

FAX; 817-222-5945 

DAVID L. DONNELL 

Regional Counsel 

Southwest Region 

Agency Attorney 

Enclosure: National Bam Company's Request for Hearing 

FAA Complaint - original and one copy 

cc: Brian Keane, President for National Bani Company 
U.S. DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

EC 

In the Matter of: 

National Barn Company 

Respondent 

JUL - / m\ 

HEARING DOCKE^ 

FAA Docket Not Assigned 

FAA Case No.2011SW700016 

Judge Not Assigned 

COMPLAINT 

The Federal Aviation Adtninistration ("FAA") files its 

complaint under Rule 208 of the Rules, of Practice in FAA 

Civil Penalty Actions, 14 C.F.R. § 13.208 and states the 

following: 

I. 

By Notice of Proposed Civil Penalty dated, February 

18, 2011 and by Final Notice of Proposed Civil Penalty 

dated June 24, 2011, National Barn Company was advised that 

the FAA proposed to assess a civil penalty in the amount of 

$17,500.00 . 

1. On or about October 22, 2010 National Barn Company 

knowingly offered to United Parcel Service (UPS) a 

one-piece shipment' consisting of a non-specification 

fiberboard box containing undeclared hazardous 

materials for transportation by air. 

2, The above-mentioned shipment was assigned UPS Air 

Waybill 1Z87V5984445515486. The shipment was offered 

by National Barn Company, Fort Gibson, Oklahoma for 

transportation by air to the consignee, Leslie Clai'k, 

14965 Cedar Lane Loop, Willis, TX 77378. 

3 . At all times mentioned herein, 'the above shipment was 

not accompanied by a Shipper's Certification or 

Declaration of Dangerous Goods. 
4 . On or about October 22, 2010, the above mentioned 

shipment was flown in air transportation from Tulsa, 

Oklahoma, to the UPS facility in Louisville, Kentucky, 

to the UPS facility at George Bush Intercontinental 

Airport, Houston, Texas. 

5 . On or about October 23, 2010 personnel of UPS 

discovered the above-mentioned shipment leaking. 

6. The shipment consisted of an unmarked, unlabelled, 

non-specification fiberboard box containing two (2) 

12-ounce containers of flammable aerosol paint. Both 

containers had discharged their contents when 

discovered by UPS personnel at the UPS facility at 

George Bush Intercontinental Airport. 

7. Aerosol paint is classified as hazardous materials 

under the Department of Transportation Hazardous 

Materials Regulations (HRM), 49 C.F.R. § 172.101. 

8. The proper shipping name of the material is Aerosols. 

It is in Hazard Class 2.1 (Flammable gas), and has an 

assigned identification number UN1950. The proper 

label is FLAMMABLE GAS. 

9. National Barn Company offered the above-described 

shipment of hazardous material for transportation by 

air without shipping papers that included; 

a.The proper shipping name for each material; 

b. The hazard class prescribed for each material; 

c. The assigned identification number prescribed for 

each material; and 

d. The total net mass of the material per package. 

10 . National Barn Company offered the above-described 

shipment of hazardous material for transportation by 

air and failed to: 

a. Certify that the materials were in accordance 

with the HMR (49 C.F.R. § 171 et seq.) by 

printing on the shipping papers the certification 

.set forth in § 172.204(a) or § 172.204(c)(1) of 

the HMR; 

b. Prepare the required certification in duplicate; 

and 
c. Add the following statement in the certification 

required by § 172.204(c)(3) of the HMR: "I 

• declare that all the applicable air transport 

requirements have been met." 

11. National Barn Company offered the above-described 

shipment of hazardous materials for transportation by 

air when: 

a. The outer container was not marked with the 

proper shipping name of each hazardous material 

contained therein; 

b. The outer container was not marked with the 

assigned identification number of each hazardous 

material contained therein; and 

c. A 'FLAMMABLE GAS" label was not affixed to the 

outer container. 

12. National Barn Company offered the above-described 

shipment of hazardous material for transportation by 

air and failed to make emergency response information 

available for use at all times the hazardous material 

was present. 

13. National Barn Company offered the above-described 

shipment of hazardous material for transportation by 

air and failed to make an emergency response telephone 

number immediately available to the appropriate 

official person designated to respond to an incident 

involving a hazardous material, or who was conducting 

an investigation involving a hazardous material. 

14 . National Barn Company offered the above-described 

shipment of hazardous material for transportation by 

air and failed to ensure that each of its hazmat 

employees v/as trained in accordance with the 

prescribed requirements as set forth in Section 

172.704 . 

15 . National Barn Company offered the above-described 

shipment of hazardous material for transportation by 

air when the packaging was not designed, constructed, 

maintained, filled, its contents so limited, and 

closed, so that under conditions normally incident to 

transportation, there would be no identifiable release 

of hazardous material to the environment. 
II. 

16. By reason of the above, National Barn Company 

violated the following Department of Transportation 

Hazardous Materials Regulations (Title 49 of the Code of 

Federal Regulations): 

a. Section 171.2(e) [49 C.F.R. § 171.2(e)] in that it 

offered hazardous material for transportation in 

commerce by air when the material was not properly 

classed, described, packaged, marked, labeled, and 

in condition for shipment as required by the 

Hazardous Materials Regulations. 

b. Section 172.200(a) [49 C.F.R. § 172.200(a)] in that 

it offered hazardous material for transportation in 

commerce by air and failed to describe the hazardous 

materials on the shipping paper in the manner 

required by the Hazardous Materials Regulations, as 

follows: 

1. Sectionl72.202(a)(1) [49 C.F.R. S 

172.202(a)(1)] in that it offered hazardous 

material for transportation in commerce by air 

and failed to include on shipping paper the 

identification number prescribed for the 

material as shown in Column (4) of the § 

172 .101 Table. 

2. Section 172.202(a)(2) [49 C.F.R. § 

172.202(a)(2)] in that it offered hazardous 

material for transportation in commerce by air 

and failed to include on the shipping paper 

the proper shipping name prescribed for the 

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

3. Section 172.202(a)(3) [49 C.F.R. § 

172.202(a)(3)] 'in that it offered hazardous 

material for transportation in commerce by air ^, 

and failed to include on the shipping paper S 

the hazard class or division number prescribed 

for the material, as shovm in Column (3) of 

the § 172.101 Table. 

4. Section 172.202(a)(6) [49 C.F.R. S 

172.202(a)(6)] in that it offered hazardous 

material for transportation in commerce by air 

\ 

\ 
and failed to show on the shipping paper the 

total net mass of the material per package. 

c. Section 172.204 [49 C.F.R. § 172.204] in that it 

offe^red a hazardous material for transportation in 

commerce by air and failed to certify that the 

material was offered for transportation in 

accordance with the Hazardous Materials Regulations 

by printing on the shipping paper one of the 

certifications or declarations containing the 

language at § 172.204(a) or § 172.204(c)(1). 

d. Section 172.204(c)(2) [49 C.F.R. § 204(c)(2)] in 

that it offered a hazardous material to an aircraft 

operator for transportation in commerce by air and 

failed to provide .two copies of the certification 

required in this section. 

e. Section 172.204(c)(3) [49 C.F.R. § 204(c)(3)] in 

that it offered a hazardous material for 

transportation by air and failed to provide the 

certification required by this section. 

f. Section 172.300(a) [49 C.F.R. § 172.300(a)] in that 

it offered a hazardous material for transportation 

in commerce by air and failed to mark each package, 

freight container, and transport vehicle containing 

the hazardous material in the manner required by the 

marking regulations of the Hazardous Materials 

Regulations. 

g. Section 172.301(a) [49 C.F.R. § 172.301(a)] in that 

it offered a hazardous material for transportation 

in commerce by air in non-bulk packaging and failed 

to mark the package v/ith the proper shipping name 

and identification number (preceded by "UN" or "NA," 

as appropriate) for the material as shown in the § 

172.101 Table. 

> 

h. Section 172.400(a)(1) [4 9 C.F.R. § 172.400(a)(1)] in A 

that: it offered a hazardous material for v 

transportation in commerce by air in a non-bulk 

package and failed to label the package with the *^ 

labels specified for the material in the § 172.101 A 

Table and in the Table in the labeling requirements 

of the Hazardous Materials Regulations. 
i. Section 172.600(c)(1) [49 C.F.R. § 600(c)(1)] in 

that it offered for transportation a hazardous 

material in commerce by air and- failed to make the 

emergency response information immediately available 

for use at all times the hazardous material was 

present. 

j. Section 172.600(c) (2) [49 C.F.R. § 600(c) (2)] in . 

that it offered for transportation a hazardousmaterial in commerce by air and failed to make such 

information, including an emergency response 

telephone number, immediately available to any 

government agency responding to an incident 

involving hazardous materials or conducting an 

investigation which involves a hazardous material. 

k. Section 172.604(a) [49 C.F.R. § 172.604(a)] in that 

it offered a hazardous material for transportation 

in commerce by air and failed to provide an 

emergency response telephone number, including the 

area code or international access code, for use in 

the event of an emergency involving the_ hazardous 

material, which telephone number must be monitored 

at all times that the material is in transportation 

or storage-; be the number of a person knowledgeable 

of the material being shipped and has comprehensive 

emergency response and incident mitigation 

information for that material or has immediate 

access to a person who possesses such knowledge or 

information; and be entex~ed on the shipping paper in 

the manner prescribed by § 172.604(a)(3)(i) or (ii) 

of tlie Hazardous Materials Regulations. 

1. Section 172.702(a) [49 C.F.R. § 172.702(a}] in that 

it offered a hazardous material for transportation 

by air and failed to ensure that each of its hazmat 

employees was trained in accordance with the 

requirements prescribed in this subpart. 

\ 

m. Section 173.1(b) [49 C.F.R. § 173.1(b)] in that it \ 

offered a hazardous materials for transportation by \ 

air when the shipment containing the hazardous 

materials was not prepared in accordance with the 

Hazardous Materials Regulations and when it failed 

to ensure that each hazmat employee was trained in 

accordance with the requirements of the Hazardous 
Materials Regulations, and further failed to ensure 

that each officer, agency, and employee having any 

responsibility for preparing hazardous materials for 

shipment had been instructed as to applicable 

Hazardous Materials Regulations. 

n. Section 173.22(a) [49 C.F.R. § 173.22(a)] in that it 

offered a hazardous material for transportation by 

air and failed to ensure that the material was 

contained in an authorized packaging required by 

Part 173. 

o. Section 173.24(b) (1) [49 C.F.R. g 173.24(b) (1)] in • 

that it offered a hazardous material for 

transportation by air and failed to use a package 

v;hich was designed, constructed, maintained, filled, 

its contents so limited, and closed, so that under 

conditions normally incident to transportation, 

there would be no identifiable release of hazardous 

material to the environment. 

p. Section 173.24(f) (1) [49 C.F.R. § 173.24(f) (1)] in 

that it offered a hazardous material for 

transportation by air and failed to ensure that the 

closures on tlie packaging containing the hazardous 

material were so designed and closed that under 

conditions (including the effects of temper'ature, 

pressure and vibration) normally incident to • 

transportation there was no identifiable release of 

the hazardous material to the environment from the 

opening to which the closure is applied. 

III. 

Pursuant to the Federal hazardous material transportation 

law, and 107.329 of the Hazardous Materials Transportation 

Regulations [49 U.S.C. § 5123 (a)(1) and 49 U.S.C. § 

107.329] National Barn Company is liable for a civil 

penalty not to exceed $50,000.00 for each violation 

alleged. 

Under the facts and circumstances of this case, a civil 

penalty of $17,500.00 is appropriate. 
WHEREFORE, the Regional Counsel for the Federal Aviation 

Aditiinistration, Southwest Region, respectfully requests 

that the Administrative Law Judge enter an Order that 

National Barn Company be assessed a civil penalty in the 

amount of $17,500.00. 

th Respectfully, submitted this 6 day of July 2011. 

DAVID L. DOiWELL 

Regional Counsel 

Southwest Region 

By: n.^.. 

Erdc E. Anderson, Attorney 

(817) 222-5078 
Please Note 

Pursuant to Title 14 CFR § 13.209(a), you are required to 

file a written answer to this complaint, or a written 

motion to dismiss if appropriate, not later than thirty 

{3 0} days after the date shown on the certificate of 

service which is attached to this document. 

CERTIFICATE OF SERVICE 

Re: National Barn Company, F7U\ Case No. 2011SW700016 

I hereby certify that on the 6^^ day of July 2011, I have 

sent via Federal Express an executed original and one copy 

of the complaint, addressed as follows: 

Hearing Docket 

Federal Aviation Administration 

600 Independence Avenue, SW., 

Attention: Hearing Docket Clerk, 

AGC 43 0 

Wilbur Wright Building, Suite 2W1000 

VJashington, DC 20591 

(202)385-8229 

I further certify that on this date, I have sent via 

Federal Express a true copy of the complaint, addressed as 

follows: 

Mr. Brian Keane, President 

National Barn Company 

1739 East Highway 62 

Fort Gibson, OK 74434 

(918)478-3538 

DAVID L. DONNELL 

Regional Counsel 

Southwest Region 

By: Dated: July 6, 2011 

Eric E. Anderson, Attorney 

(817) 222-5078