U.S. Department of Transportation Federal Aviation Administration Office of the Chief Counsel



### U.S. CERTIFIED MAIL, RETURN-RECEIPT REQUESTED 

### October 19,2015 Hearing Docket Federal Aviation Administration 800 Independence Avenue, SW Washington, DC 20591

Attn: Hearing Docket Clerk, AGC-430 Wilbur Wright Building- Suite 2Wl000 RE: In

### the matter ofFannie May Enforcement Division Midwest Team 2300 E. Devon Avenue, Room 479 Des Plaines, Illinois 60018 

# RECEIVED OCT 2 32015 HEARING DOCKET 

# d01CS- 2:>315

FAA DocketNo. CP-Not Assigned; Case No. 2015-GL-70-0126 Enclosed are the original and one copy ofthe complaint inthe above-referenced case. The Complainant requests that the hearing be held in Chicago, Illinois and expects that the hearing in this case will last one day(s). All correspondence to the Complainant in this matter should be directed to Kate Barber, at: Office ofthe ChiefCounsel Enforcement Division, Midwest Team 2300 E. DevonA venue, Room479 Des Plaines, Illinois 60018 email: kate.barber@faa.gov Telephone: (847) 294-7313 (main) (847) 294-7862 (direct) (847) 294-7498 (fax) RJspectfully,

# '~w~~1'{~~\ Kate Barber Office ofthe ChiefCounsel EnforcementDivision, Midwest Team 2300 E. Devon Avenue, Room 479 Des Plaines, Illinois 60018 email: kate.barber@faa.gov Telephone: (847) 294-7313 (main) (847) 294-7862 (direct) (847) 294-7498 (fax)

### Enclosure
cc: Ron Orcutt Director ofWarehousing and Distribution Operations Fannie May Confections Brands, Inc. 1793 Enterprise Parkway Twinsburg, Ohio 44087 2PLEADING FORM CIVIL PENALTY COMPLAINT 

### U.S. DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION

In the matter of: Fannie May
JUDGE NOT ASSIGNED ) ) 

### ) ) FAA DocketNo. CP-Not Assigned Case No. 2015-GL-70-0126

COMPLAINT The Complainant hereby files its Complaint, pursuantto Rule 208 ofthe Rules of Practice in FAA Civil Penalty Actions (14 C.F.R. 

### § 13.208), and states as follows: I. Respondent Fannie May was advised through a Final Notice ofProposed Civil Penalty dated October 5, 2015, that the FAA proposed to assess a civil penalty inthe amount of$15,000. By a letter dated October 7, 2015, Respondent requested a hearing. The Enforcement Division, Midwest Team received Respondent's written request for a hearing on October 14, 2015. II. 1. On or aboutMarch 18, 2015, FannieMayConfections Brands, Inc. (FannieMay), offered a shipmentto UnitedParcel Services (UPS), for transportationbyair under airwaybill (A WB) 1ZW536560134471379. 2. The shipmentundertracking number 1ZW536560134471379, was discovered byUPS employees atthe UPS Middleburg, OH sorting facility. Upon further investigationitwas discoveredthatthe package containedhazardous materials. 3. The shipment contained 6 pounds ofdry ice. The proper shipping name ofthis, hazardous materials is UN1845, Carbon Dioxide, Solid, Class 9, Packing Group III, which is classified as a hazardous material under Section 172.101 ofthe Hazardous Materials Regulations.4. This hazardous materials shipmentwas not declared, described, marked orlabeled as containing hazardous materials orinthe proper conditionfor transport according to the Hazardous Material Regulations. 5. The shipmentof the hazardous materials was processed and preparedby an employee ofFannie Maythat didnotreceive therequired hazardous materials training. 6. At all times mentioned herein, the shipment was not accompanied by a Shipper's Declaration for Dangerous Goods. 2

7. Fannie May offered the above-described shipment ofhazardous material for transportation by air when there were no shipping papers containing the proper shipping name of eachhazardous material; the hazard class ofeach hazardous material, preceded by "UN" or "NA," as applicable; the total quantity by weight or volume ofeach hazardous material covered by the description; and the basic description ofeachhazardous material shown in sequence. 8. Fannie May offeredthe above-described hazardous material for transportation by air when the shipment was not marked or labeled in any mannerthat would indicate the hazardous nature ofthe contents contained therein. 9. Fannie May offered the above-described shipment for transportation by air when the box
was not marked with the proper shipping name and the assigned identification number ofeach hazardous material contained therein, and with the required marking in English and printed on or affixed to the surface ofthe package. 10. Fannie May employee performed hazardous material shipping functions when they had not received the required hazardous materials employee training.III. 

### 1. By reason ofthe foregoing, Respondent violated:
a. 49 C.F.R. §171.2(e), which states, no person may offer or accept a hazardous material for transportation in commerce unless the hazardous material is properly classed, described, packaged, marked, labeled, and in condition for shipment as required or authorized by applicable requirements ofthis subchapter or an exemption or special permit, approval, or registration issued under this subchapter or subchapter A ofthis chapter. b) 49 CFR § 172.200(a), which states, except as otherwise provided in this subpart, each person who offers a hazardous material for transportation shall describe the hazardous material on the shipping paper in the marrner required by this subpart. c) 49 CFR § 172.204(a), which states, except as provided in paragraphs (b) 

### and (c) ofthis section, eachperson who offers a hazardous material for transportation shall certify that the material is offered for transportation in accordance withthis subchapter by printing (manually or mechanically) on the shipping paper containing the required shipping description the certification contained inparagraph (a)(l) ofthis section or the certification (declaration) containing the language contained in paragraph (a)(2) ofthis section. d) 49 CFR 172.30l(a)(l), which states, except as otherwise provided bythis3



### subchapter, eachperson who offers a hazardous material for transportation in a non-bulk packaging must mark the package withthe proper shipping name and identification number (preceded by "UN", "NA" or "ID," as appropriate) for the material as shown in the §172.101 Hazardous Materials Table. The identification number marking preceded by "UN", "NA", or "ID" as appropriate must be marked in characters at least 12 mm (0.47 inches) high. Packages with a maximum capacity of30 liters (8 gallons) or less, 30 kg (66 pounds) maximum netmass,
or cylinders with a water capacity of60 liters (16 gallons) or less must be marked with characters4
at least 6 mm (0.24 inches) high. Packages with a maximum capacity of5 liters (1.32 gallons) or 5 kg (11 pounds) or less must be marked in a size appropriate for the size ofthe package. e) 49 CPR 172.702(a), which states, a hazmat employer shall ensure that each ofits hazmat employees is trained in accordance with the requirements prescribed in this subpart. 

### f) 49 CPR 173.1(b), which states a shipment ofhazardous materials that is not prepared in accordance with this subchapter may not be offered for transportationby air, highway, rail, or water. It is the responsibility ofeach hazmat employer subject to the requirements ofthis subchapter to ensure that each hazmat employee is trained in accordance with the requirements prescribed inthis subchapter. It is the duty ofeach person who offers hazardous materials for transportation to instruct each ofhis officers, agents, and employees having any responsibility for preparing hazardous materials for shipment as to applicable regulations in this subchapter. L Pursuantto 49 U.S.C. §5123(a), Respondent is subjectto a civil penalty not to exceed $75,000 (or $175,000 for violations resulting in death, serious illness, or severe injury to any person, or substantial destruction ofproperty), for each violation ofthe Federal Aviation Regulations. After reviewing all ofthe information contained in our investigative file,
we propose to assess a civil penalty in the amount of$15,000. 2. Under the facts and circumstances ofthis case and in accordance with the Administrator's Sanction Guidance in FAA Order 2150.3B, Appendix B, a civil penalty of $15,000 is appropriate for the violation(s) in this case. WHEREFORE, the Complainant respectfully requests that the Administrative Law Judge enter an order that Respondentbe assessed a civil penalty in the amount of$15,000.

### Date: October 19,2015 Respectfully submitted, Peter J. 

### Lynch Assistant ChiefCounsel

for ErrfqrcrJent By: 

# \I



# (!JI()f:ruv~v~ .Kikfe Barber Office ofthe ChiefCounsel Enforcement Division, Midwest Team 2300 E. Devon Avenue, Room 479 Des Plaines, Illinois 60018 email: kate.barber@faa.gov Telephone: (847) 294-7313 (main) (847) 294-7862 (direct) (847) 294-7498 (fax)

NOTE: Pursuantto 14 C.F.R. § 

### 13.209(a), a written answer to a complaint must be filed no later than thirty (30) days after service ofthe complaint. 5

### CERTIFICATE OF SERVICE 

### I hereby certify that onthis date, I have sent by U.S. Certified Mail- return receipt requested, a copy ofthe foregoing complaint inthe matter ofFannie May, FAA DocketNo. CPNot Assigned, Case No.2015-GL-70-0126 to: Ron Orcutt Director ofWarehousing and Distribution Operations Fannie May Confections Brands, Inc. 1793 Enterprise Parkway Twinsburg, Ohio 44087 6



### In addition, I hereby certify that on this date, I have sent by U.S. Certified Mail- return receipt requested, the original and one copy ofthe foregoing document to:

Date: Hearing Docket Federal Aviation Administration 800 Independence Avenue, SW Washington, DC 20591 Attn: Hearing Docket Clerk, AGC-430 Wilbur Wright Building- Suite 2W1000·-""

Smice via U.S. CertifiedMail, Rtturn-&ceiptRequested, andFirst-ClassMail 

# ocr ' ·4
October 7, 2015
. Attn: Kate Barber FederalAviationAdministration EnfmcementDivision, Midwest Team 2300 EastDevonAve. Des Plaines, IL 60018 Attn: HearingDocket Clerk, AGC-430 FederalAviationAdministration 800 IndependenceAve, S.W. Wilbur Wright**Building~** Suite 2W1000 Washington, D.C. 20591 REQUEST FORHEARlNG RE: FINALNOTICE OF PROPOSED CIVILPENALTY Re: Fannie May Confections Brands, Inc., Case No. 2015-GL-70-0126
Pursuant to 14 C.F.R §13.16, Fannie May Confections Brands, Inc. hereby respectfully requests a hearing befme the Administrative ljawJudge concerningthe FederalAviationAdministration's proposed civil penalty in the above-captioned matter. Further arguments and evidence in supportwillbe submitted once Fannie May has been notified of theAdministrative LawJudge assigned to this matter. Fannie May also respectfully requests thatfurther cottespondence in this matterby directed to Ron Orcutt, Director ofWarehousing andDistribution Operations, FannieMay Confections Brands, Inc., 1793 Enterprise Parkway, Twinsburg, Ohio 44087. Sincerely,

Ron Orcutt 

### .£.

## tY'h.- cf;?;::;,..-;7**£··~** "**~.f?•"'"** Director ofWarehousing and Distribution Operations Fannie May Confections Brands, Inc. 1793 Enterprise Parkway Twinsburg, Ohio 44087 Phone: (614) 743-3592 Email rono@fanniemaybrands.com