# RECEIVED JUN 2 32015 u.s. DEPARTMENT OF TRANSPORTATIONHEARING 

## DOCKET OFFICE OF HEARINGS WASHINGTON, DC

FEDERAL AVIATION ADMINISTRATION, } 

### Complainant, } } v. } } FISHER SCIENTIFIC COMPANY, LLC, } 

### Respondent. } In the Matter ofFisher Scientific Company, LLC Docket No. FAA-2015-1321 (Civil Penalty Action) Judge Goodwin

MOTIONS TO DISMISS COMPLAINT FOR INSUFFICIENCY AND FOR COMPLAINANT'S VIOLATION OF RULE 208
Respondent Fisher Scientific Company, LLC, a subsidiary ofThermo Fisher Scientific, Inc., (hereinafter referred to as "Fisher") moves to dismiss the Complaint in the above-captioned civil penalty proceeding onthe following two independent grounds. First, the Complaint fails to state a "knowing" violationfor which a civil penalty may be imposed. Second, by including allegations that were first made more thanthree years afterthe alleged incident, the Complaint violates Rule 208(d) ofthe Federal Aviation Administration's (hereinafter "FAA's" or "the Agency's") Rules ofPractice ("Rules"). FAA's Southern Regional Counsel ("Regional Counsel," "the Government" or "Complainant") makes, among others, two allegations concerning acts Fisher allegedly committed almost four yearsago, onJuly20, 2011, when Fisher shipped a single liter ofa corrosive liquid commonly known as lye. First, Regional Counsel alleges that Respondent "knowingly offered
... a ... shipment
... containing hazardous materials for transportationby air." Compl.**~** 1. Second, Regional Counsel claims Respondent "violated the
... hazardous materials regulations" ("HMRs") because it "failed to ensure that [the bottle oflye was]
... packaged with absorbent materials
...." Compl.**~** 1O.c.Respondent'sMotion to Dismiss MotiontoDismiss for Insufficiency The Hazardous Materials Transportation Act ("HMTA"), Pub. LawNo. 93-633, 88 Stat. 2156, 2160 (Jan. 3, 1975), codifiedas amendedat49 U.S.C. § 5123(a)(1)(2011), allows the Governmentto impose a civil penalty upon a "personwho knowingly committedan actwhich is a violation of'the HMRs (emphasis supplied). A later recodification made a non-substantive, editorial change. Itreworded the sentence to say the Government may impose a civil penalty on a "personthat knowingly violates" the HMRs. Nowhere inthe Complaint does Regional Counsel allege that Fisher "knowingly" committed any act which is a violation ofany HMR. It merely states that Respondent "knowingly offered" a declared shipment ofhazardous materials. There are other, more specific allegations in the Complaint, but none ofthem allege a "knowing" violation. Inthe example referenced above, Regional Counsel claims Respondent "violated" 49 C.P.R. § 173.27(e), but there is no allegation that Fisher "knowingly" committed any act which violates it. The cited HMR applies certainpackaging requirements to some hazardous materials shipments but notto others. Inthis case, the lye was a "limited quantity" shipment that was exempt from the specification packaging requirements and otherwise fully complied with all applicable HMRs. However, even ifone were to assume that§ 173.27(e) did apply to the shipment when it was offered in 2011 and that Fisher failed in some respect to comply with it or any other HMR, the HMTA's civil penalty provision, as amended by the Hazardous Materials Transportation Uniform Safety Act of 1990 ("HMTUSA"), Pub. L. No., 101-615, 104 Stat. 3244, 3259 (Nov. 16, 1990), codifiedat 49 U.S.C. § 5123(a)(l)(A) and (B) (2011), unquestionably requires the Agency to allege and prove that Fisher "knowingly committed an act which is a violation of'that or some other HMR. As explained in greater detail in Respondent's Memorandum in Support oftheMotions to Dismiss, the statutory language governing the instant civil penalty proceeding is plain and unambiguous. Even ifthere were some reason to consider it ambiguous, the legislative history ofclauses (A) and (B), which were added by the HMTUSA, leave no doubtthat Congress adopted a new defmition ofthe term "knowingly" for the specific purpose ofprohibiting the Government from imposing a civil penalty in a case involving transportation ofhazardous materials unless it can show thatthe Respondent had actual knowledge that its act or omission violated the HMRs orthat its noncompliance resulted from some specific act ofnegligence on the part ofthe Respondent. Accordingly, the Complaint fails to state a violation ofthe federal hazardous materials transportation statute or regulations and must be dismissed for insufficiency pursuant toRule 218, 14 C.P.R.§ 13.218(±)(1).

2Respondent'sMotion to Dismiss

Motion to Dismiss for**As§~Iting** a Claim About Whichthe Government Failedto Giye Timely Notice As noted above, Regional Counsel asserts, among other claims, that Respondent '"violated the
... hazardous materials regulations" because it "failedto ensure that [the bottle oflye was]
... packaged with absorbent materials
...." The HMRs imposedno such requirement onthe shipment at issue inthis case, but even ifone were to assume thatthere was a requirement for packaging the subject limited quantity oflye with absorbent materials, Regional Counsel was obligatedto givetimely notice that the Governmentplanned to base its Complaint on such a claim. FAA served a Notice ofProposed Civil Penalty ("the Notice") onJuly 3, 2013. During an Informal Conference, Respondent pointed out to Regional Counsel thatthe Notice was expost facto, based ahnost entirely on HMRs that were not in effect inJuly, 2011, when Fisher shipped the subject package. The Notice contained no allegation whatsoever that Respondent was obligated to include "absorbent materials" or that Fisher failed to do so when it packaged the lye. In fact, this Notice didnot even mention "absorbent materials." The first Notice ofthis claim was served not withintwo years, as required, but more than three years after the alleged incident, in FAA'sAmended Notice ofProposed Civil Penalty ("the AmendedNotice") dated July 24,2014. Amended**Notice~** f. Rule 208(d)(2) ofF AA's Rules provides, in pertinent part, that thejudge "may dismiss the complaint or that part ofthe complaint alleging a violation that occurred more than two years before an agency attorney issued the notice ofproposed civil penalty" to the respondent "[i]fthe agency fails to show good cause for any delay
...." (Emphasis supplied.) There is no excuse or other good cause for Regional Counsel to keep Respondent in the dark for more than three years about the Agency's intended allegations. To reward Regional Counsel's failure to give timely notice by allowing this case to proceed would defeat the stated purposes and policies ofRule 208, grossly prejudice Respondent's opportunity to defend itselfand constitute a denial ofRespondent's due process rights under the U.S. Constitution. WHEREFORE, Respondent respectfully moves to dismiss the Complaint on the following two independent grounds: frrst, for insufficiency pursuant to Rule 218, 14 C.P.R. § 13.218(±)(1); and, second, to dismiss the Complaint for violating Rule 208 pursuant to 14 C.P.R.§ 13.208(d). Even ifthe Complaint is not dismissed outright on account ofRegional Counsel's violation of Rule 208, thatportion ofthe Complaint alleging a failure by Respondent to include "absorbent materials" in the packaging for the subjectmaterials (i.e., 

### all of**Complaint~** 1O.c.) should be stricken, as alternatively provided in Rule 208( d).

3Respondent'sMotion to Dismiss
Respondent recognizes the importance ofthe issues presented 

### inthis case to hazardous materials civil penalty cases 

### in general and respectfully requests an opportunity to present oral argument in persononthese motions.

Dated: June 23, 2015 Respectfully submitted,

(email)jco;-,:@potomacstratcgyassociates.com (tel) 703-757-5866 Counsel for Thermo Fisher Scientific, Inc., and Fisher Scientific Co., LLC

4CERTIFICATE OF SERVICE

OnJune 23,2015, the undersigned sentby air courier one copy ofthe foregoing Motions to Dismiss Complaint for Insufficiency and for Claimant's Violation ofRule 208 to each ofthe persons listed below. [One Copy] William Vines, Esq. Regional Counsel, ASO-7 U.S. Department ofTransportation Federal AviationAdministration SouthernRegion 1701 Columbia Ave. College Park, GA 30337 [One Copy] The Hon. Richard C. Goodwin Office ofHearings, M-20 U.S. Department ofTransportation 1200 NewJersey Ave., S.E. (E11-310) Washington, DC 20590 [Original and One Copy] Hearing Docket Clerk, AGC-430 Federal Aviation Administration Wilbur Wright Bldg., Suite 2Wl000 600 Independence Ave., S.W. Washington, DC 20591

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