RECEIVED 

JUN 2 3 2015 

u.s. DEPARTMENT OF TRANSPORTATIONHEARING DOCKET 

OFFICE OF HEARINGS 

WASHINGTON, DC 

FEDERAL AVIATION ADMINISTRATION, } 

Complainant, } 

} 

v. } 

} 

FISHER SCIENTIFIC COMPANY, LLC, } 

Respondent. } 

In the Matter of Fisher 

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 of Thermo Fisher Scientific, Inc., 

(hereinafter referred to as "Fisher") moves to dismiss the Complaint in the above-captioned civil 

penalty proceeding on the following two independent grounds. First, the Complaint fails to state 

a "knowing" violation for which a civil penalty may be imposed. Second, by including 

allegations that were first made more than three years after the alleged incident, the Complaint 

violates Rule 208(d) of the Federal Aviation Administration's (hereinafter "FAA's" or "the 

Agency's") Rules of Practice ("Rules"). 

FAA's Southern Regional Counsel ("Regional Counsel," "the Government" or "Complainant") 

makes, among others, two allegations concerning acts Fisher allegedly committed almost four 

years ago, on July 20, 2011, when Fisher shipped a single liter of a corrosive liquid commonly 

known as lye. First, Regional Counsel alleges that Respondent "knowingly offered ... a ... 

shipment ... containing hazardous materials for transportation by 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. ~ 1 O.c. 
Respondent's Motion to Dismiss 

Motion to Dismiss for Insufficiency 

The Hazardous Materials Transportation Act ("HMTA"), Pub. Law No. 93-633, 88 Stat. 2156, 

2160 (Jan. 3, 1975), codified as amended at 49 U.S.C. § 5123(a)(1)(2011), allows the 

Government to impose a civil penalty upon a "person who knowingly committed an act which is 

a violation of' the HMRs (emphasis supplied). A later recodification made a non-substantive, 

editorial change. It reworded the sentence to say the Government may impose a civil penalty on 

a "person that knowingly violates" the HMRs. Nowhere in the Complaint does Regional 

Counsel allege that Fisher "knowingly" committed any act which is a violation of any HMR. It 

merely states that Respondent "knowingly offered" a declared shipment of hazardous materials. 

There are other, more specific allegations in the Complaint, but none of them allege a "knowing" 

violation. In the 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 certain packaging requirements to some hazardous materials shipments 

but not to others. In this 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 if one 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), codified at 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 ofthe Motions to 

Dismiss, the statutory language governing the instant civil penalty proceeding is plain and 

unambiguous. Even if there were some reason to consider it ambiguous, the legislative history 

of clauses (A) and (B), which were added by the HMTUSA, leave no doubt that Congress 

adopted a new defmition of the term "knowingly" for the specific purpose of prohibiting the 

Government from imposing a civil penalty in a case involving transportation of hazardous 

materials unless it can show that the Respondent had actual knowledge that its act or omission 

violated the HMRs or that its noncompliance resulted from some specific act of negligence on 

the part of the Respondent. 

Accordingly, the Complaint fails to state a violation of the federal hazardous materials 

transportation statute or regulations and must be dismissed for insufficiency pursuant to Rule 

218, 14 C.P.R.§ 13.218(±)(1). 

2 
Respondent's Motion to Dismiss 

Motion to Dismiss for As§~Iting a Claim About Which the Government Failed to Giye Timely 

Notice 

As noted above, Regional Counsel asserts, among other claims, that Respondent '"violated the ... 

hazardous materials regulations" because it "failed to ensure that [the bottle of lye was] ... 

packaged with absorbent materials .... " The HMRs imposed no such requirement on the 

shipment at issue in this case, but even if one were to assume that there was a requirement for 

packaging the subject limited quantity oflye with absorbent materials, Regional Counsel was 

obligated to give timely notice that the Government planned to base its Complaint on such a 

claim. 

FAA served a Notice of Proposed Civil Penalty ("the Notice") on July 3, 2013. During an 

Informal Conference, Respondent pointed out to Regional Counsel that the Notice was ex post 

facto, based ahnost entirely on HMRs that were not in effect in July, 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 did not even mention "absorbent materials." The first Notice of this claim 

was served not within two years, as required, but more than three years after the alleged 

incident, in FAA's Amended Notice of Proposed Civil Penalty ("the Amended Notice") dated 

July 24,2014. Amended Notice~ f. 

Rule 208( d)(2) ofF AA' s Rules provides, in pertinent part, that the judge "may dismiss the 

complaint or that part of the complaint alleging a violation that occurred more than two years 

before an agency attorney issued the notice of proposed civil penalty" to the respondent "[i]f the 

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 of Rule 208, grossly prejudice Respondent's opportunity to defend itself and 

constitute a denial of Respondent'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 if the Complaint is not dismissed outright on account of Regional Counsel's violation of 

Rule 208, that portion of the Complaint alleging a failure by Respondent to include "absorbent 

materials" in the packaging for the subject materials (i.e., all of Complaint~ 1 O.c.) should be 

stricken, as alternatively provided in Rule 208( d). 

3 
Respondent's Motion to Dismiss 

Respondent recognizes the importance of the issues presented in this case to hazardous materials 

civil penalty cases in general and respectfully requests an opportunity to present oral argument in 

person on these 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 

4 
CERTIFICATE OF SERVICE 

On June 23,2015, the undersigned sent by air courier one copy of the foregoing Motions to 

Dismiss Complaint for Insufficiency and for Claimant's Violation of Rule 208 to each of the 

persons listed below. 

[One Copy] 

William Vines, Esq. 

Regional Counsel, ASO-7 

U.S. Department of Transportation 

Federal Aviation Administration 

Southern Region 

1701 Columbia Ave. 

College Park, GA 30337 

[One Copy] 

The Hon. Richard C. Goodwin 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Ave., S.E. (E11-310) 

Washington, DC 20590 

[Original and One Copy] 

Hearing Docket Clerk, AGC-430 

Federal Aviation Administration 

Wilbur Wright Bldg., Suite 2Wl 000 

600 Independence Ave., S.W. 

Washington, DC 20591 

/