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Scott R, Morris 

F AA Office of Regional Counsel 

1601 Lind Ave, SW 

Renton, Washington 98057 

Telephone; 425/227-1417 

Facsimile; 423/227-1007 

RECEIVED 

HEARING DOCKET 

UNITED STATES OF AMERICA 

FEDERAL AVIATION ADMINISTltATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C 

In ihe MaueT of 

EMPIRE AIRLINES, INC. 

FAA DOCKET NO. CP09NM0009 

DMS NO. FAA-2009-0586 

FAA Case No. 2007NM700155 

COMPLAINANT'S REBUTTAL BRIEF 

TO: .ruDOt RICHARD C. GCX)DWIN 

INTRODUCTION 

In essence. Re-spondent's brief nttempt^ to trfinpfcr its rcspDwihility as an air earner to its 

CTiTtOTTicr, FcdcTfil BieiTrrs'? (FrrlP.r). It^ bnr f onl y foniiSrts o n (.lie ar.c*!pt3nce Jlllegation? s o 

Complainaii t assume s tha t it is concedin g th e transport violfHon,? . 

AWGlTiyTF-NT 

A . RrspnnHrn t is m\ inf^rpryir^mt. air r.FirrirT rcsTmn^iH e fnr f^rr-Piptinp:. insper.ting,Jn;)jdinp . an d 

t^:^^sponi•^E 'whjtrvr r p?irV^yrs 7\vr. pln.r.rd tin il.y Hmxyiii. 

Respondeat'6 brief attempts 1o Burgue that, because FedEx o^vns the aircraft Respondent 

operates, it equates to operational control of the aircraft. This argument is simply vronfl as a 

matter of law. Fj-npire Airlines (Empire) own Director of Quality Assurance admined chat the 

COMPLAIKWIT'E REBUTTM. BSIW - CPOSNHOOQS, 

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company had operational control of the aircraft. By rei?uIaiions, Empire's name is on each and 

every aircraft iha[ it operates. See 1^ C.F.R- § 119.9(b). The Respondent is in no diflt'erent 

situation than any other independent air carrier conducting operations for other air carriers. For 

example, SkyWcst is the world's largest refilonal air carrier yei ii operates the vast majority of its 

aircraft with the paint schemes and routing code infoimaTion for its cUenus; major airlines such as 

Delta, United, aiid AirTran Airhnes." 

An air carrier is responsible to know what is loaded on its aircraft. Under Respondent'.>; 

air carrier certificate, the pilot in command is responsibln ibr siupcrwising individuals loading the 

aircraft - regariiless of whether they are Respondent employees, FedEx employees, or some 

other contract en^ployees.'' Despite Respondent's contention, there i.<! no such thing in die 

sututcs or in the federal aviaxion regulations called or identified as "regional air cargo support," 

In facr, no such term exists in a single federal sLatuia, regulation, or federal case."* Wl.ifit 

Respondent was doing was "all-carso air transportation."^ These aperaiions FITC governed 

primarily by 14 C.F.R. Paris 119,135, and 121. Dtiring stirh oprT7irinn,<, ^s an air carrirr. iti.s 

responsible for the actions thai occur during loading, aft-loading, and trfinspnrtin^ tViroiigh n^e of 

its aircraft. Respondent argues tliat "Empire simply flics the plane carrying the FedPjc ExiTrc.« 

shipments from one point to another." Respondent's Brief M 4. h, ^s n specious and dangerous 

argument for Respondent lo assori ihal it has rio responsibility for the items that it transports on 

^ Tr. ai 186, lines 1-19, 

^ Sse hitpV/www alivwe.^r com lasi vijired February ,28, -Oil. 

^ S«« Exhibit C-II, page 11-dl. 

* .TpK49U,i5.C. §40)02 and 14 C.F.R. §1.1 tor definitions. There ia one old Civil AcronuuLica Board case that 

\i6as the phrase "air eai^o support", in referencing a company's foreign air rrantporcatioTi functiont. .Tee Ala>:ka 

Iiuernational. Charier Author iiy, S4 C.A.B. 72R (1979). 1979 WL19133 (D.O,T,), Foreisn air trun.iporlttlion is 

defined in the ululub: rind regulations. 

COMELAINMII' S REEUTTJUi BRIEF " CPOSNMOCJOJ, 

2Q07KM7D01S5 

P&c^a 2 of 12 

SCOTT K, MORKI.?, PAA XTTOKNE!^ 

TEL: •425.227,1417 ; PAX.- 1 2.? . 227 . 1 0O7 
03/10/2011 16;35 FAX 2024335142 FAA * DMS 003/012 

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its ttircrafi. EssenliiJly Respondent wants the Administrative Law Judge (ALJ) to rule that it can 

contract avyay its regulatory responsibihly for the conduct of its operations. In the Matter of 

WeitAir Commuter, FAA Order 96-16 (May 13,1995), 1996 WL 325903, WestAir attempted to 

make this very argument. In this case. Respondent's Brief goes out of its way to attempt to claim 

that they were not involved or provided any ovcisi^t to the activities of the contractor'ii it used 

to perform the hazardous material requirements. In WnjstAir, the Administrator dispensed with 

(his argument by pointing out that: 

The record fails to show any aLtempi on WestAir's part to monitor whether United 

was keeping its agreement to provide trained grotmd security coordinators for 

West/Sir's flights,... As the lawjudis?© pointed out, an air carrier's responsibilities 

arc too critical to permit it to transfer its obligations to another. It make.s no 

difference that Westair's reliance was on another air carrier.' 

This logic equally .Tpplies here. There is no evidence on Empire's part to monitor whether 

FedEx was keeping its agrrrmfrrit tn provide the correct'Notice to Pilot-iii-Command (NOPTC) 

or loading intbimation to R.cspondcnt's flight cirw. 

Thi.^ i^ nor the first time that an air carrier haa ailcmptcd to avoid responsibility ibr its 

oblijjntion.s nnrlrr it^ ?I.IT cfirricr ccrti.fi.catc, whether il be obhgalions for the maintenance 

performed on its aircraft, the documentation of pilot flight and duly lime/ or the transportation 

of ha?,arrloiis materials. "The courts and the Administrator... have indicated repeatedly in past 

ca.ses that an air carrier's duties, which include a slalulory duty to exercise the highest possible 

ficcrcc of care, me non-dclegable." Alaska Airlines, Inc., FAA Order 2004-8, at 1 (Oct. 4, 

2004). .lart a? in the Alaska Airlines cose, as the air carrier operating the aircraft. Respondent 

' d9 U.S.C. 40102(10) provides: "'all-cariso airiransportation' mean."; the rraniiponalion by aircraft in linerstate air 

inmsporLalion of only property or only mail, <7r both." 

° WasLAir, xupra, at *3. 

' Sti. e.g.. Admmmaior v. Gtihsrtson and Martin, NTSB Order EA-1252, 3 NTSD 1683 (1979), 

roMPWiNANT'5 REBUTTAL BRIEF - cpofWMOOO?, 

2007NM70015S 

EMPIRI AIRLINES 

Page 3 of 12 

SCDTT R, M0RR7*, PAA ATTORKTir 

TEL ; 425.227.1417 ; FAX : 425.227.1QD 7 
03/10/2011 16:35 FAX 2024335142 FAA + DM S 0004/01 2 

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was responsible for the aircraft's contents, however they were placed aboard its aJTx:rafl. This 

is consistent with long establishing liability cases in common carriage.' Respondent had fiiJl 

knowledge that cargo was being placed aboard its aircraft. Its own procedures provide that its 

crewmembers ''must supervise the loading of DG [dan^jerous goods]." Exhibit C-11, at 11-41, 

Appendix G, para. A(2). "During loading the DG is separated from other freight so ihe 

crewmember may accomplish the pre-load inspection." Exhibit C-11, ai 11-41, Appendix G, 

para. A(l) (emphasis added). The manner in which it chooses to liave hazardous material 

shipments processed, soned, identified, and placed in the aircraft was its decision and is its 

ultimate responsibility. Complainant agrees that Respondent can contract the ability to 

perform these functions, but it adamantly maintains (hai the Respondent cannot cnntr2.ci away 

its ultimate responsibility for compliance of the regulations for actions that occur on its 

aircran. being operated tinder its air carrier cerrificate. 

Respondent was the operator of the aircraft here. 49 C.F.R.. § 175,] (b)(l) provides: 

This subchapter applies; ID any person who perfonns. ?itirmpf.<; lo p«rfoTm, or is 

reqtiired to perform any function subject to this subchapter, inrliKling — 

{\)Air carriers, indirect air carriers, and freight forwfirdcrs nnd their flight 

and non-jllghi employees, agents, subsidiary ?»nd contractpar^ormel (including 

cargo, passenger and baggage acceptance, handling, loading and vnbadins 

personKel)... (italics added) 

This provision makes it clear thai the air carrier is responsible not only for its employees, but 

for personnel it contracts with to perform those furciiona. 

Respondent attempts to distinguish the Alaska A ir line of cases from this case by 

claiming it was the person performing the service function and that Complainant's cited cases 

^ 5ee Alaska Airiinef, Inc. v. Swccf, 568 P.2d 916, ?26 (1977), for the line of cMca involving niii ftnd itioior carrier 

operaiionj where the courts held that this rcsponsibiUty Js non-deJegabie. The Ala.ska Suprcmi; Ct>ur. exicnclecl these 

ConpijMHfiNT's REBUTTAL BriTjr - CP09NMQ009, 

2007miJ70015S 

Ppg o 4 a i 12 

SCOT'J R. MORMa, FAA ATTORHtrf 

TEL: 425.227,1417 ; ^'AX : la.i; . 22 7 . 100 7 
03/10/201 1 16:3 5 FAX 202433514 2 FAA •> CMS 21005/01 2 

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"do not say much, if anything at all, about the related enforcement actions afiainsl the parties 

pcrfoimirg rhr .services..." Respondent's Brief at 5. First, Courts have long held the decision 

on whether or not pro:5f;r,utorial discretion is exercised againiji another entity is not relevant to 

the violations aeei-nst A charged respondent. In the Mailer ofHi^h Expoavre, Inc., FAA Order 

2001-2 (.May 16, 2,001), at '4, 2001 WL 629389; In ihti Maner ofCosiello, FAA Order 93-10 

(Mar. 25, 1993), at *3, 1993 WL «3S110. See H&ckler v. Cheney, 470 U.S. 821, 831 (1985). 

Second, RcspoiiHent as,surrir.5 that every Respondent on appeal would attempt to raise as a 

defense the action taken again.st other related entities as a basis for mitigation or exoneration. 

Third. Respondent's argnmml., in part, misstates the case law. /;? the Matter of Alaska 

Airliner. FA A Order 2004-8, action -was taken against each repair elation that performed the 

maintenance. Id., at 4.' Respondent then nrgues that the WnxiAir case'" is distinguishable 

because the Adminisiralor found ".sqiaratr nnd distinct violaLions." Respondent's Brief at.5. 

But that is exactly the case here. Tlic actions alleged aie for i.he actions required by the 

Respondent not FedEx. All of ihe allegations here pen.nin to its rcsponsibililies as an air 

cerrier. Granted some oflhose actions to implenimt its responsibility may have been 

contracted to FedEx, but they arc still squarely the ohligation under the regulations of the 

Respondent.'^ 

z-Afes to air carrier operations holding, AliLika Airlines liable for the neglicence of its coiilraciors. 

^ "Jn r?ir,h case. Alaska uitd an FAA.cerrifled repair ttation, and the KAA filed chftrgcn ligainstt each repair station. 

hi the AL.rg vjew, the FAA's pursurf of enforcement action asainsi the repair siaiions flilfillecl The public's interest in 

•"HfeTy." fd. 

'" In the Matter ofWatAir, FAA Order No. 9(5-16 (May 3, 1995). 

" Respondent assero thit the facts in FAA Docket CP09NM0010 arc the same or sijnileii, Thia i.-i improper 

ttrgurreni because there are no facia in the record that penain to the other case, Notwiihsiarniing thi.s, the ftcis In the 

case agaJftsi FedEx are different violations because the acceptance and transport ollee;ed in that case involved I'cdEx 

employctj in BMibnorc, MD and Memphis, IN and Ponland, OB, aud Involvctl flights for aircraft operated imiar 

FedEx's own »lr carrier certificate. 

2007NM700155 

Paqc. 5 cvf 12 

BBTEF - CPQSNMO0D9, SCOTT R , MDXKIS , FAA ATTOKNFV 

TEL: 425.227.1417 ; TAX: 423.227.100 7 
03/10/201 1 16:3 5 FAX 202493514 2 FAA + DMS @iooe/oi2 

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B. Respondent had at leaiit constructive, if not actual. laiQwlcdge thai ihc shipments placed on 

its aircraft contained hay^ardous niaierials. 

Respondent cannot wiccessftil claim that inattention by its flight crew, or that of its 

conlractors, eliminate."^ i.(.<; fluty imder the hazardous material regulations. The photographs 

and testimony of the Agcnt-s provitie overwhelming evidence the shipments were clearly 

marked or labeled &s hazardou.? -mntrrial. Despite Respondent's contcniion, it had the 

opportunity to have seen the ORM-D markings on the boxes. The individuals loading its 

aircraft and the flight crew that were reqiiired to monitor the loading of its aircraft each had an 

opportunity to observe markings, Thrsc markings were literally inches from the very label.i 

that its contractor.^ would use to scan aitd tnrk the shipments for the flighl.s at issue. It begs 

credibility to argue otherwise. 

Likewise Rciipondcnt claim.n that it docs not accept the shipment. Respondent is 

confusing the requirements for acceptance und«-,r 49 C.F.R. § 171.2 with the additional 

acceptance requirements in 49 C.F.R. § J 75.30. Fach "aircrall operator" must inspect the 

shipment prior to transport. This inspection include.-? vcrificaLion of the markings, labels, and 

requu-ed shipping papers. 49 CF.R. § 175.30(a). Thr, word "operator" is defmed as "a person 

who coniroh the use of an aircrafit, vessel, or vciiiclc."'^ 49 C,F..R, § 171.8 (emphasis added). 

Respondent controlled the use of its aircraft in the conduct of th<r Jlights at i-ssue. Therefore, 

prior to acceptance for a given flight, the air carrier (who i.^ the air operator) must inspect the 

shipment to ensure compliance with the hazardous malenal rejTtiUlinns under 49 C.F.R. 

^' Rfspondenr'.^ own management acknowledged that it had operalioniil control over all of its aircraft under its 

operations specifications. .SecTr at 186, 

Cn«reiAIWM)T'S RrnvTTHL BRIBf - C^O!»NMO003 , 

20n7r^Tnni=i.=; 

EMPIRE AiRLTsii-,)i 

Page R OJ: \ ? 

TF.T,: 425.227.1417, FAJCi 425.227.1007 
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."subchapter C. '^ This only makes sense in the context of maintaining the highest level of 

safety in air commerce. Under 49 C.F.R. § 171.2, acceptance does occur at the time a shipper 

tenders for placement in commerce - not air commerce — commerce. But Part 175 further 

requires, prior to acceptance on an aircrall, the package be inspected or re-inspeaed anew. 

This heightened requireraeni Btands to reason for one cannot simply pull over at 35,000 feet 

due to a fire, or exit a boat in a life-raft.'" 

Incredibly, Respondent attempts to minimize its calpabiUiy by arguing "ii would 

actually compromise safety to cxpee,! a crewmember in a single pilot operation to perform 

package acceptance, inspection and loading funciions." Respondent believes "it would 

impede, commerce and interfere with a crewmeinber's pre-flight responsibilities concerning 

mriintenance and airwonhiness..." .Respondent's brief at 7-8, Respondent convenicnily omits 

that it is the one that decides the, number of crewmember.'; on ii.s aircrall. It is trtie thai the 

ifgiilan'ors only require one crewmember forrJie Cessna Caravan operation; however, if 

RrKpnnHmt is st a.11 r.onrrmrd with safety, there is no impediment to it requiring s co-piiot. 

Fiirthrr. R pijot's prc-flight duties arc not limited to maintenance and airworthiness issues. 

Ultimately, the pilot-in-cnrrmand i„>; rc.sponsibic for cvcryrhing nco^ssaiy to cnndua a ,safp. 

flight. HowKVer. hrrp a pilot. \n ?iflHrf:^«;ing mn riirwoT+hinr^:s issur in tjnr loJ^ding of his or her 

^^ Natethatthereqiiirennentsof49C.f,K., Parr 17.'! are In addition TO those of 171.17?., ]7i, ]7X and )K0. i^ 

C.F.R, § 175.1(a). 

^' .Tudffe Kolko prohaWy best describe) rht uniqueness of problems wlrh aircrafl wiiile in f)ighr in In the Matter qf 

Norlhw^ Ah-linci. Inc., FAA Docket No. CP98GL0028, 1999 WI, 337^89.^7 (D.O.T.): 

One would ordinarily have a con.iidcrably hctler chance of avoiding, a srroldcrinj fire in the honne, 

on the ground Ihan in avoi<Img such a fire aboard a metal tube hurtling through the air at .10,0^0 

feet, In the home one may be able tu Dec through B dot>r or by opening or even breakinc a window; 

an airline passenger has no such option. Further mipllcaiing the public safety i.-! the fact that a fire 

in flight vv'oald generally claim many more potonlia! viciims than in a fire in a home. 

COMPlAIfAlT' S R.EBDTTM. BRlUr - CP0 5NMD00 9, 

2nn7NM7noi55 

CKPIRE ,MIU,T>^3 

Page 7 of 12 

SCOTT ft. Moutis, ?AA ATTOIUIEI 

TEL: 425.227.1417; FAX: 425.227.1007 
03/10/2011 16:36 FAX 2024935142 FAA + DMS 1008/012 

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aircraft. Staying viithin an aircraft's weight and balance envelope is an aircraft operating 

limitation imposed by the ai.rcratl's flight numual. See 14 C.F.R. § 91.9(a). 

When Respondent uses the p.hra>;K 'impede commerce", it really means it slows down 

its operations. The haztirdom rnalt-ri?!.! regiilatior.<;, especially in the air mode, were put in 

place to trump the "speed is kinj;" approach to certain cargo. The tragedy and history of the 

consequences that resulted from the tinrhf-cked approach proposed by Respondent are the very 

rea-sons these regulations were promulg^led and need not be recounted. 

C. Respondent had at least corbib-uctivc. if not actual kneiwledae of the manifest, load ohantJe 

mit3.Fi'^ha678-22. 

Complainant will not rehash its earlier arguments on this point. It merely ask.^ ihft 

rourt to consider A) the Manar of WestAir CommuTSr, FAA Order 96-16 (May 3. 1995). 1996 

"WT. 325903. In shon, the acts of one'i contractors, or affirmative ignorance, is not a 

defense.' 

D. Respondent is oblicated under the Federal Aviation Regulations to provide 1 

material.'; tPiining for its lliahi crew. 

First, note that Respondent in this part of it.^ argument admits thai it is a will-cany 

cenillcaie holder, Re-spondent's Brief at 12. SeconH, Respondent attempts to limit JK 

responsibility under the hazardous material regulations hy claiming that its flight crews are not 

required to receive acceptajice training. But a,5 an ,iir ram'rr. Respondent's training 

" Reapondciil cites In the Matter qfF.mptra Air!inns, FAA Order 2000-13 (June g, 2OO0) For the proposition that 

'•[a]n AU has held that a party in Empire's position is not liable for regulatory vjolaxions resulting fTom SUCH 

reliance." Rcsptmdcni'.i Brief ai 10 - 11. That cast does not stand at all for thai proposition. In feci, it stands for 

the opposite position. There is dicta in that case tt page 6 where the AdminisiniTor refer."! to an earlier initial decision 

aCftinst the ca,>ie air rfliriiT in an even eaxlier case which upheld such a proposition. However, the Adminijtrator 

cIe<-Lrly points out that ihat was not to be piven ony precodcntial weight. Further, in tlie cases siib.<iequenT to I'A A 

Order 2000-13. chc Administrator's deeisioni hawt made it very clear that reUauce upon a work of other entities as 

an excuse lo avoid responsibility will uoi reveal, .^ee, e.jr.. irt the Maner cf Alaska AlrltniS. inc., 1"AA Order 2004-

8; Jn (he Maner of Federal Express: Corporcainn, FAA Order 2003-2 (Mny 6, 2003), 2003 WL 21403977. 

rOMHiiiMANi's EaouTTXL SBIEF - CI'06NM00[I9, 

2007NM700155 

.EvinREAIRUWEi 

P^ge 8 of 12 

SeeTT R. MrJHRTS, TAA ATTOkuEY 

TEL: 425.227,1417; FAK: 4Z5.227.1007 
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requirements are not merely limited to the training of its flight crews. The Respondent wants 

the AL J to ignore the contract ground handler.^; fit Portland, Oregon thai actually loaded 

Re.'spondcni's aircraft. Furthermore, if its flight crcw.^; perform the duties of one that accepts a 

shipment, il is still required to provide that (raintr£ to its night crew. .See 14 C.F.R. Part 121, 

Appendix O, Table 1, Notes 1,2. & 3. The Prcflmblrr to the Pan 121 rules provides: 

Will-carry certificate holders will have to conduei in-depth training for persons 

directly supervising or performing any of the following job functions involving 

items for (rajisport on aircraft- acceptance, rrjcction, handling, storage incidental 

to transport, packaging of company maleriaj<; owned or used by the certificate 

holder (known as COMAT), and loading."* 

In its argiimeri,, F.espondcni again conftised the acoeptance requirements set forth in 

49 CF.R. § 171.?withthoscin49C.F.R, § 175-30, A caj-eful look at Appendix 0 to ?art 121 

clarifies Respondent's eonfu.';ion. Respondent only refers the AJJ Lo the column pcrt.aining lo 

the ''flight crcw.-i and load planners." Flight crewg, acting solely as flight crews,'' as a 

iTunimum, arc requiri=d tn rrre.ivc training about Ihe general philo.<!ophy, limitations, list of 

hazardous materials, labeling unci marlcing, recogniilon of undeclared hazardous matcnab, 

storage and loading procediirK.^, pilot's notiiicaiion, provi.<;jons for passengers and crew., and 

emergency procedure^," So there is a great deal of infonration that flight crews ere, at a 

minimum, required to know." Ths regulations specifically require that the flight crew and 

" 70 Fed. Reg. 58797, cftlurru) 2, 1" fill pai-a, (Oei. 7, 2005). In addition ilie preamble detloes a supervisor as 

"was meant to include indiyidual.'; wiTh any (Segree of direct overtlghl over a Junction addressed by the proposed rule. 

Id ar column 1, last sentence. 

•" Tleferring to the tables and the co.liirnii names The preamble provider: "Itpie type of hazmat ^rtiininjE; an employee 

receives is based on the job functions he ar .she performs fc>r, or on behalf of tlic part 121 or pan 1 ^'S operator, not 

hie or her job dc.icriprion." 70 Fed. Rep.. Ri 5*7''S, column 2, Sei oho id. at column 3 (i'ocua is on job function nor 

Jnb flesci'lption). 

^^ Sci 14 C.F.R. Part 121. App. 0. Triblr. 1, 

'" "The praciicie that an operator's statfbc adequately trained to assist them tn identify and detect Uildeclartd 

dan.a:eroua good.i hos been an industry stundard in the lATA DGR for over 10 years. The TATA DCR informatieii is 

CoMPlJiiKAfiT' s REUinTJiL fiRIEr - rD0?NMD0D9, 

2007Mlil7001££ 

£h-fflRE AnU-INl£.'i 

Pag e S o f 13 

STOTI R . MORXIO, FA ^ AnORNEV 

TE1[ 425 . SJ7 , 1417 ; PAX: 425.227.100" ^ 
03/10/2011 16:36 FAX 2024935142 FAA + DMS 010/012 

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ground crew be knowledgeable about recognition of undeclared hazardous materials. F.ven 

Rcspontlent's own program acknowledges thet the flight crrw must know, and is responsible 

for, ths rorapatibility, separation distances, accessibility, .security, and package orientation of 

its ha7.ardoiis material cargo. But one must also look at the only location where acceptance 

procedurr;,^ wc marked with an "X". Tliat column is entitled "Operations and ground-handling 

agent'; sta.£f accepung hazardous material.i." And then look at NntR 3. The acceptance 

procedure.^ being referenced are those activities that occur at the time a shipment is initially 

offered imdrr Part 171, no: the acceptance referenced under Part 175. Recall, the acceptance 

requirement'^ for the air carrier are in addition to those in Pfirl 171,2, The Respondent wanK 

49 C.F,R. § 175.30 to read the initial aircraft operator ensures compliance. What the 

regulation provides is the aircraft operator. Prior to an aircmft operator placing, or having 

placed, aboard ii,s aircrafl a hazardous material, it must conduct an inspection ns set forth in 

Section 175.30 prinr to its acceptance for transport in air commerce. 

E. The proopsed civil penalty is appropriate under the facts and circumstances of thi'^: cfisc. 

Complainant largely rests upon its initial brief. Complainant docs take i.5sur with 

RespondcnL^s reprr.'se.ntatiDns of the We.uAIr Commuter case, but has addressed those concerns 

above. Respondent attempts to argue certain factors that the Administrator ha.'s clearly :?tatcd 

are not mitigating. Complainant reminds the court that a lack of a prior violation hi.ttory i,"? not 

mitigating as an unblcmi^^hrd record i."! the expected norm. See, e.ji., Pony Expre,<;x CatirK-r 

Corporation, FAA Order 94-19 (June 22, 1994). "The fact that no damage occurred as a 

intenaea to prevent undeclared dan^erou-i soods in cargo from being iMdcd on an aircraft...." 70 Fed, Reg. ai 

,^8«03. cohiian 2. I" fii 11 paragraph 

^^ L'xhibit C-] ], page 11^1, App. G, para. A (2). 

GtiMPuiijnkwr'e REBUIIJU. BUTEP - CP03NMO0OS. 

2007NM70015^ 

rji,rP|RBAlIU.iNES 

Poge 10 o r \7, 

SCOTT R, MOUKT.S, FAA ATTOimsr 

TEL: 425.227,1417 ) PAJt ; 425.227.100 7 
03/10/2011 16:36 FAX 2024935142 FAA * DM S @1011/012 

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result of the shipment is not a mitigating factor." 49 Fed. Reg. 19445, column 3, para, 3. Any 

corrciciive action by Respondent must not just r,oTT«-,t H problem, but must exceed the 

minimum requirements. Id. at 19444, colunm 3. T*^ ftiH paTEigraph. 

CONCLUSrON 

For alj ofilie reasons set forth in Complainant','; initial brief and this rebuttal brief, the 

Hudings of violations should be establisljed and the sanction proposed has been demonstrated 

to be a sufficient deterrent. Complainant maintains that the $20,000 requested is appropriate 

?in<^ warranted by the circumstances. The fact that Rcsponilcni ms4e ri business dedsion to rely 

upon the actions of another air carrier's acceptance and titicking syslf.m docs not relieve it from 

it'; ovm. independent responsibihty under the Hazardoas Matcri.fil Rrgulations. 

Rcspccifully submitted this 4th day ofMarch, 2011. 

colt R. Morris 

F A A Attorney 

COMm,»iHA»T'.i BriUTTM. BnjEi' - CP09NMnnn=i, 

2007wiTnnn.'?5 

HwPtWiAIJiLINrs 

Page i.i or 12 

scoriB . MoRRia, PAA ATTORjinf 

TEL: 42S.227 , 1417 ; ?K/,: 425.227,100 7 
03/10/2011 16:36 FAX 2024935142 FAA DMS @012/012 

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S3 

CERTIFICATE OF SERVICE 

I hereby certify that the foregoing Cornpl«Tnani.''s Rebuttal Brief, has been served via FacBiinile 

and Certified Mail (his date, to the following: 

The HonorsHr Rjcijard C. Goodwin 

Office of hearings, M-20 

1200 Mew >T";ry Avenue, S.E. 

East Building Ground Floor, Rm El 2-320 

Washington, D.C. 20590 

FAX: 202.366.7536 

Attn: Hearing Docket Clerk, AGC-430 

Federal Aviation Administration 

800 hidepcndence Ave SW 

Wilbur Wright Bldg. • Suite 2W 1.000 

Washington, D.C. 20591 

FAX: 202.493.5142 

Courtney E. Felts 

Staff Attorney, Federal Express, Inc. 

3620 Hacks Cross Road 

Building B,3''^ Floor 

Memphis, TN 38125-8800 

FAX: 901.454.i;283 

Dated this 4th day ofMarch. 201). 

l/ltl ^ 

MOIFAIR CHIN 

Office of Regional Counsel (ANM-7) 

Federal Aviation. Aflministratian 

1601 LindAve. SW 

Renton, W A 9fi057 

TEL: 425,227.21<50 

FAX: 425.227.1007 

CoMPtiAINAlJl-'s RlSOTTJlL Bxicr 

2nfiTi<rNi7nni55 

P.MPIRE Anu-INES 

Pag e \ 7 o r 12 

crosNMoon^, 

Scow ti, MBSHIS, PA>, JSTTORHZV 

TEL: ,1^5.227.1417 ; FAX: 42.5 . S?,7 . 100 7