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U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, DC 

FEDERAL AVIATION ADMINISTRATION, 

Complainant, 

vs. 

TEXAS ARM^' NATIONAL GAIJRD. 

Respondent. 

^^^1 HIS ^ P/;>: ^ Jt 

FAA Docket No. 

FAA Case No. 96SO760104 

COMPLAINANT'S REPLY BRIEF 

Pursuant to the Rules of Practice in FAA Civil Penalty Actions. 14 C.F.R. 

§13.233(c), andl4 C.F.R. §I3.2ll(e) Complainant, the Federal Aviation Administration 

("FAA" or "Complainant"), hereby tiles its reply to Appellant's Appeal Brief, dated July 

8, 2011, filed in response to the Initial Decision ("ID") by Administrative Law Judge 

("AUr') Richard C. Goodwin, served May 20, 2011. 

1. PROCEDURAL BACKGROUND 

On November 25, 2009. Complainant filed its Complaint in this matter alleging 

that Respondent violated numerous provisions of the hazardous materials regulations 

(HMR), Title 49 of the Code of Federal Regulations (49 CFR), specifically regulations 

under parts 172-173, arising from an undeclared shipment consisting of a box containing 

four gallons of flammable paint that Respondent offered to United Parcel Service 
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("UPS") for transportation by air on or about July 2, 2008.' The FAA sought a $30,000 

civil penalty for the violations. Respondent filed its "Original Answer and Affirmative 

Defenses on December 22. 2009. In this Answer, Respondent asked to be referred to as 

the "Texas Army National Guard" instead of the Executive Office of the State of Texas 

as the case was originally captioned. Respondent admitted all of the other factual and 

regulatory violations. Respondent's affirmative defenses consisted of challenges to the 

amount of the civil penalty proposed in the complaint. 

Complainant filed an Amendment to the Complaint on April 10, 2010. \v\ this 

filing Complainant amended the Complaint to change the name of the Respondent to 

"Texas Army National Guard", In doing so, the Complainant specifically explained that 

il was doing so "without any intent to change legal responsibility for the alleged 

regulatory violations.''^ On June 14, 2010. Complainant filed its "Motion For 

Decision." On June 29, 2010,Respondent filed it Response to the Motion for Decision. 

In this filing, Respondent stated that it "has never contested liability in this controversy." 

On July 8, 2010, the Administrative Law Judge (ALJ) issued an Order Granting in Part 

and Denying In Part Motion for Decision." The ALJ found that Respondent's answer 

acknowledged liability and that the substantive allegations of the Complaint were 

admitted. He allowed a hearing to determine the amount of the civil penalty. A hearing 

was held on this matter on January 4, 2011 in Austin, Texas. An Initial Decision (ID) 

As the iDitial Decision states at th. 1, this case was origiraily captioned "Fxecutive Office of the State of 

Texas." 

* This Amendment lo Complaint also anached exhibits consisting of photographs and papcnvork proving 

that the .shipment was offered by the Texas Adjutant General's Depanment; and that this department 

commtindii ihu Tcxaa Military Force?, which in turn consists of the Texas Army National Guard, Texas An 

National Guard, and the Texas Stare Guard. The exhibits showed that the Adjutant General i.<i .subordinate 

10 ihe Govcmoi of Texas. 
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3 

was issued on May 20, 2011. The A U found that Respondent \iolatcd all the alleged 

facts and regulatory violations cited in the complaint. The ALJ also found that, 

considering all the facts and circumstances, a 530,000 ovil penalty was warranted for the 

violations. On June 6, 2001, Respondent filed a Notice of Appeal. Respondent filed its 

brief perfecting its Appeal on July 8, 2011. 

•r 

II FACTS 

The FAA's Complaint, as amended contained the following factual allegations: 

1. Oil nr abovit iuK 2, 2009 the Texas Army Nationul Guard {hcreiuaftev 'Texas") 

knowingly offered to Umtcd Parcel Sen.ice (UPS) a one-piece shipment consisting of a fibcrboard box 

containing hazardous materials for rrausporration by air. 

2. The abnve-mentioncd shipment was assigned UPS Next Day Air traclcing ntimbcr/air 

waybill numhei IZ, Kl'2 ?60 23 1032 1440. The shipment was offered by Adjuuni General's DcpartmeiiT, 

2200 W. 35''' St., y/34-114. Austin. TX 78703, fur iraasportation to the consignee, Lynette Pattetson. SSG. 

3101 SWS YounfiDrive,Kil)een, Texas 76.S42. 

3. At all time."; mentioned herein, the above-mentioned shipmeni was not accompanied by a 

Shifiper'^ Certification or Declaration of Dangerous Goods. 

4. On or about July 3, 2009, the above-mentioned shipment was flown on a rcyularly 

scheduled UPS cargo Hight in air transp.ination to the UPS sort facility' in LouisviJlc. Kentucky. 

5. On or about July 3, 2009, grouiid-handling personnel at the UPS .son faciliry discovered 

the abovc-meniioned shipment leaking. 

6. The above-mentioned fiberboard box contained four l-gatlon cans of "Durant Dui^aplex 

800 Exterior Alkyd Flat" paint (with metal lids). 

7. The :ibove-described cans were marked as having a flashpoint of 103 degrees. 

?. Further investigatinn showed rhat approximately one gallon of point had leaked into and 

tluough rlie fibeiboard container 

9. (a) "Durant Duraplei: 800 Exterior Alkyd Flat" p:iint" paint is classitled as a 

hazardous material under the Department of Transportation Hazdrdou.'i Materials Regulations (HMR) (4? 

C.F.R § 172.101). 

(b) The proper shipping name of the maierial i.s Paint, tt is in Hazard Class 3 

(Flaftinuble Liquid), Packing Group DI. and has an a.'isigned identification number of IJN1263. The proper 

label IS FLAMMABLE LIQUID. 

' The Motion For Decision specifically cited FAA v. Louisiana National Guard. FAA Order No. 20U2-23 

(2002) in siippon of the motion. 
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10. Tuxas offered the above-described shipment of hazaidous material for nansportaiioii by 

air without shipping papers that Included; 

(a) the proper shippin£ name prescribed for each material; 

(b) the hazard class prescribed for each material; 

(c) the a.isigned identification number prescribed for each material; 

(d) the packing group prescribed for each material; and 

(c) the total quantiry nf each ha?a.rdous material, 

11. lexas 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 CFR . §§ 171, 

« seg.) by prinnng on the shipping papers the certification set forth in § 172.204(a) or § 172.204(c)(l} of 

the HMR; 

(b) prepare the required certifications m duplicfltc; and 

(c) add the following statement to the cerrificarion: 

This shipment is within the limitations prescribed for 

passenger aircraft/cargo-only aircraft (delete non applicable). 

12. Texas offered the abovcdescribed shipment of hazardous materials for transportation by 

ail when: 

(a) the Outer conlainer was nol marked with thcpmpcr shipping name of each 

hazardous mulerial eontumed therein; 

(b) the outer container was not marked with the assigned idenrification number 

of each hazardous materia] contained therein; 

(c) the outer container was not marked with standard orientation markings (as 

prescribed in 49 C.F.R. !i 172.312(a)) on two opposite vertical sides of the package wiib the arrows pointing 

in the correct upright direction; and 

(d) a "FLAMMABL E LIQUID" label was not affixed to the ouier container. 

13. Texas oft'ercd the above-described shipment of hazardous matcnal for transportation by 

air and failed to make emergency response information available for use at all time.-; the hazardous material 

was present. 

14. Texas 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 mcideni involving a hazardous material, or wJio was conducting 

an investigation involving a hazardous maierial. 
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15. Te^as olfered ±c above-described shipment of hazardous material for rranspoiTation by 

air and failed to ensure that each of its liaznut employees was trained in accordance with the prescribed 

requirements as set forth in Section 172.704. 

10. Texas offered the above-described shipmeni of ha'^nrdous material for transportation by 

air and failed lo keep a proper record of iiaininL: for each of ILS haj.mat employees in accordance with the 

prescribed requircmcnu; as set forth in Section 172.704(d). 

17. Texas offered the above-described shipment of hazardous material for transportation by 

air when the packaging was not designed, consuuctcd, 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 

16. Texas offered the above-described shipmcm for transportation by air and failed to use 

stoppers, corkj, or other such friction-type closures that were held in place securely, tightly and effectively 

by positive means. 

19. Te\a.s offered the above-described shipment of liquid hazardous materials for 

transportation by iii and failed to use an authorized combination packaging for its cransportation. 

By reason of ihc above, Texas violated the following Department of Transportation Hazardous Materials 

Regulations (Title 49 of the Code of Federal Regulations): 

1. Section 171.2(e) in that lexas oflered or transported a hazardous material for 

transportation in commerce when the hazardous material was not properly classed, described, packaged, 

marked, labeled, and in condition for shipmeni as required or authorised by applicable requirements of this 

Subcliapter, or an exemption, approval, or rcgiatration issued under this subchapter or under subchapter A 

of this chapter. 

2. Sections 172.200(a) and 172.202(a)(1) in thatTcxas offered ahazardou.^ material for 

Transporiaiion and failed to describe the hazardous material on shippinjj papers including the irienrification 

number prcseribed fur the maierial as .shown in Column 4 of the § 172.101 Table, in the manner required 

by ihib subpart. 

3. Sections 172.200(a) and 172.202(a)(2) in that Texas offered a hazardous material for 

tranaportfltion and failed to describe the hazardous material on shipping papers including the proper 

shipping name prescribed for the material as shown in Column 2 of the § 172.101 Tabic. 

4. Sections 172.200(a) and 172.202ia)(3l in diat Texas offered a hazardous maierial for 

n-anspoitation and failed to describe the hazaidous inateria! on shipping' papers includini^ the hjzard das.-; 

or division nuinbcr prcicribed fur ihc material as shown in Column 3 of the § 172.101 Table. 

5. Sections 172.200(a) and 172.202(a)(4) in that Texas oifered a hazardous material tor 

transportation and failed to describe the hazardous materia] on shipping papers including the packing 

group in Roman numerals., as designated for the hazardous material in Column 5 of the § 172.101 Table. 

6. Sections 172.200(a) and 172.202(al(6) in that Texas offered a hazaidous material for 

transportation by aircraft and failed to describe die hazardous material on shipping papers showing the total 

mass per package, unless a gross mass is indicated in Columns (9A) or (9B) of the § 172.101 Table in 

which case the lutul gross mass per package must be shown; or, for Class 7 materials, the quantity of 

radiOiiclive must be .i^hown by acti^nty. 
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7. Sections 172.200(a) and 172.20213X^) m that Texas ofleied a hazardous material for 

transportation and failed to describe the hazardous material on shipping papers indicating the number and 

type of packages (for example, "12 drums"). 

8. Sections 172.204(a) or (c)(1) in that Texas offered a hazardous nraterial foi transporiation 

and failed to certify that ihe maierial was offered for transportation in aecurdanee wiih this subchapter by 

printing on ihc shippjny; paper coniaininy the required shipping description one of the certifications set 

forth in thi.<; part. 

9. Section 172.204(c)(2) in that Texas offered a hazardous material to an aircraft operator 

(or transporiation by air and failed to provide two copies of ihe cenilicalion required m this section. 

10. Section 172.204(c)(3) in that Texas offered for transportation by air a ha7.ardous macenal 

authorized for air transponarion and failed TO add to the cettification required in this section the following 

staicment: 

"I declare that all of the applicable air iranspon requirements have bee-n met." 

11. Section 172.30Ua") in that Texas offered for transportation a ha7.ardous material in a nonbulk packaging and failed to mark the package with the proper shipping name and idemification number 

(preceded by UN' ' or"NA". as appropriate) for ihc maierial as ihovm in the §172.101 table 

12. Sections 1 72.300(a) and 172.312(a)(2) in that Tevas offered liquid harardous material fov 

transportation and failed to legibly mark the package with package orientation marking.? that conform 

pictorially to ISO Standard 780-1895. on rwo opposite vertical sides of the package with the arrows 

poiniing in the correct upright du-ection.-

13. Section 172.400(a) in rhat Texas offered for transportation a hazardous maierial in one of 

ihe packages or containment devices bstcd in this subpart and failed to label the package or containment 

device wirh the labels specified for tlie material in Uie $172,101 Table and in tliis subpart. 

14. Sccnon 172.600(c)(1) in that Texas offered for transportation a hazardous material and 

failed TO make the emergency response InformaTiori immediately available for use at all times the hazardous 

material wa^ presenL. 

15. Section 172.60(Xc)(2) in that Texas oftcred for transportation a hazardous material and 

failed TO make such information, including an emergency response telephone number, immediately 

available to any government agency respondmg to an incident involving hazardous materials or conducting 

an investigation which involves a hazardous material. 

16. Section ]72.702(.i) in that Texas offered a hazardous material for transponarion and 

t'ailed to en.-iure that each of iis. har.mat eniployee.*; was trained in accordance with the requiremenrs 

prescribed in this subpart. 

17. Section 173.24rb)(l) in that Texas failed to use a package which was designedj 

constructed, mainiaiued, filled, its contents so limited, and closed, so rhat under conditions normally 

incident to transportation, there would be no identifiable release of hazardous material to the environment. 

1«. Section 173.27(d) in thai Texas offered a package for transportation by air failed to 

ensure stoppers, corks or other such friction-type closures were held securely, tightly and effectively in 

place by positive means, and that each bercw-iypc closure on any packaging was secured to prevent closure 

from loosening due to vibrarion or .substantial change in temperature. 
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19. Section 173.173 m that Texas offered for transportation a package containing paint when 

the () 172.101 Tabic specil'ied that it be packaged as prescribed under §173.202 of this pan if it is a Packing 

Group 11 material or ^173 203 of this pan if it is a Packing Group III material. 

TTI. A??ELI,AN'f'S APPEAL OF THE INITIAL DECISION 

Appellant's appeal ofthc inilial decision submits that the FAA does not have 

jvinsdiction to levy a civil penalty against the National Guard. Alternatively, il asserts 

that the civil penalty was not correctly determined. 

IV. FAA'S RESPONSE 

I. The FAA Has Jarisdiction Over the Texas Army National Guard In This Matter. 

Complainant brought this case under authority of 49 U.S.C. ti 5I23('a'). the 

provision in the federal hazardous materials law that provides that a "person that 

knowingly violates this chapter or a regulation prescribed or order issued under this 

chapter is liable to the United States Government for a civil penalty.'' In 49 U.S.C ^ 

5102(9). the term '"person": 

(A) includes a govcnuncnt .. . or authority of a government , . . offering ha^r.ardous 

material for transportation in commerce or transporting hazardous material to furlher 

a commercial enterprise; but 

(&) does not include -

(t) . . . 

(ii) m seclion 5123 . . . of this title, a department, agency, or instrumentality of the 

[Federal] Government. 

The FAA Administrator has clearly and deJlnilively ruled that a state's National 

Guard is subject to the Ha;'.ardous Materials Regulations. FA.4 v. Louisiana National 

Guard, FAA Order No. 2002-23 (2002). Hay.ardous materials shipments made by 

National Guard employees such as technicians under The National Guard Federal 

Teclinicians Act attach liability' to the National Guard for violations of the Hazardous 
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Materials Regulations. Id., at 2. State national guards are only a potential part of the U.S. 

military. Id. Until activated for federal service, they are basically slate entities with the 

stale governor as their commander in chief Id. Ihe Louisiana Nadonid Guard decision 

cites numerous supporting federal decisions including, hut not limited to the following: 

Perpich V. Dep'l of Defense, 496 U.S. 334, 345 (1990); Gilbert v. United States, 165 F.3d 

470 (6lh Cir. 1999); Jones v A'eiv York State Div. of Military'and Naval Affairs, 166 F.3d 

45,47(2ndCir. 1998); Lfntied Slates v. Hutchings, I27F.3d 1255, 1258(10thCir. 1997); 

Knutson v. Wisconsin Air Nat'l Guard, 995 K.2d 705 (7ih Cir. 1993), cert, denied, 510 

U.S. 933 (1933); MacFarlane v. Grasso, 696 F.2d 217, 226 n.4 (2nd Cir. 1982); Williams 

V. United Stares, 189 F.2d 607, 608 (10th Cir. 1951); Holmes v. California Army Nat'l 

Civarrf, 920 F. Supp. 1510, 1522 (N.D. Cal. ]996l rev'd on other grounds, \24 ¥.id 1126 

(9th Cir. 1997), reh'i; and reh'g en banc denied, 155 F.3d 1049 (9th Cir. 1998), cen. 

denied, 525 U.S. 1067 (1999); Mela v. Callaway, 378 F. Supp. 25, 28 (S.D.N.Y. 1974); 

Chapman v. Helden Corp., 414 So. 2d 1283, 1287 (La. Ct. App. 3rd Cir. 1982), re\''d in 

part on other grounds, 428 So. 2d 396 (La. 1983): Williams v. Superior Court of Arizona, 

494 P.2d 26, 30 (Ariz. 1972). Finally, the cases Appellant cites, Lipscomb and NeSmith, 

do not conirol, or relate to the application of the HMR to the National Guard under the 

circumstances of this case, lliereforc, Appellant's argument that the hazmat sianite 

does not confer jurisdiction over the Texa.*; National Guard is not supported by 

precedent and therefore must fail 

n. Appellant Failed To Promptly Raise An Issue of Personal Jurisdiction And 

Therefore Waived The Issue. 
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Until the present appeal. Appellant never raised the issue ofthc DOT's jurisdiction 

over the Texas Army National Guard. A defense of lack of personal jurisdiction must be 

promptly raised since, unlike subject mailer jurisdiction, personal jurisdiction can be 

waived. A defendant who fails lo timely raise the defense is deemed to have acquiesced 

to the couri'sjurisdiction and may not subsequently seek dismissal on jurisdictional 

grounds. See. Hamilton v. Atlas Turner, Inc. 197 F.3d 58, 62 (C.A.2 (N.Y.),(1999) rTn 

sum, Atlas parlicipaled in pretrial proceedings but never moved to dismiss for lack of 

personal jurisdiction despite several clear opportunities to do so during the four-year 

inter\'al after filing its answer. These circumstances establish a forfeiture."); See, Neirbo 

Co. V. Bethlehem Shipbuilding Corp., 308 U.S. 165, 168, 60 S,Ct. 153, 84 L.Ed. 167 

(1939) (personal jurisdiction defense "may be lost by failure to assert it seasonably"); 

Continental Bank, N.A.. 10 F.3d al 1297 (personal jurisdiclion defense lost where 

defendants "participated in lengthy discovery, filed various motions and opposed a 

number of motions'* and "fully participated in litigation of the merits for over tv,'0-and-ahalf years without actively contesting personal jurisdiction'); See. e.g. Mullins v. 

Te-stamerica, Inc., 564 F.3d 386, 395 (5'^ Cir.) (2009) (Defendajit promptly moved to 

dismiss for lack of personal jurisdiclion). Similariy, Appellant, even afler been made 

aware of Ihe Louisiana National Guard case in the Complainanl's Motion For Decision, 

did not raise the issue of personal jurisdiction over the national guard. Therefore, even if 

Appellant at one time had viable argument, it was waived. 

TIT. The Civil Penalty Is Appropriate. 

The entire purpose of the hearing was to determine the proper civil penalty that 

Respondent should pay. The initial decision discussed, at length, the reasons for the 
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10 

assessment ofthc $30,000 penalty proposed by the FAA. ID, pp. 2-6. Complainant 

provided comprehensive arguments and evidence in support of the penalty at the hearing. 

Transcript 42-54, 60-62. Before the hearing, Coinplainant explicitly described the 

reasons for the penalty in his Molion For Decision. 

Under the regulatory authority, the FAA could seek a maximum civil penally of 

$50,000 mulliphed by each and every distinct regulation cited in the Complaint. 14 

C.F.R. §13.305(d). Table 3. The FAA sought a penalty of $30,000 in this case. This 

amount was decreased from the original amount of 533,950 lo give consideration lo 

Respondent's attempt at corrective action - even though the training and training records 

. sent to the FAA as corrective did not meet the requirements of the regulations. ID at 4, 

The FAA originally published "The [FAA] Policy on F.nforeemcnl of the Hazardous 

Materials Regulations: Penalty Guidelini;s on April 21, 1999. The policy was originally 

published in the Federal Register at 64 Fed. Reg. 19443. It is now incorporated as 

Appendix C to FAA Order 2150.3B. Under this policy, a civil penalty is determined by 

analyzing the statutory factors present in the Federal Hazardous Materials Transportation 

Sututc, 49 U.S.C. 5213(a) incliiding the namre, circumstances, extent, and gravity of the 

violation, the degree of culpability of the violator, any history of past violations, ihe 

ability to pay, any effect on the ability to continue to do business, and other matters as 

justice may require. The siamtory factors are then given a specific weight to determine 

the aggregate weight ofthc case. Finally, a matrix is used to further narrow the penalty 

range as follows: 

a. Under the eurreni policy, the first category of factors (nature, 

circumstances, extent, and gravity of the violation) analyzes Ihe nature of the material 

itself and the potential dangers it presented. Respondent's shipment involved flammable 

Uquid, or Class 3 hazardous materials. Under the current policy, this material is 
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11 

classified as a "Cattrgory B" maierial caaying a "moderate" final aggregate weight. 

b. Next, the policy requires the FAA to consider the violator's degree of 

culpability. There were no mitigating or aggravating factors in this category. The 

sanction guidance slates that a respondent's lack of a violation history may be . 

aggravating but not mitigating. A violation fi"ec history is expected to be the norm. In the 

Mailer of TCI Corporation, FAA Order No. 92-77 (1992). 

c. The final aggregate weight of the case was moderate. 

d. Aficf assigning an aggregate weight of moderate to the case, the next step 

is lo refer lo the Penalt)- Matrix. Because this shipment contained an "undeclared 

shipment within hazmat quantity limitations", this case fell into Offense Category II. 

This determination would be made by fmding the proper shipping name of the hazardous 

material ('in this case "Paint") and the corresponding columns 9A and 9B of the 49 C.F.R. 

§172.101 (Hazardous Material Table). 

Respondent was not an "individual" as defined by the sanction guidance. 

Therefore the offense would fall under al least Column B of the Matrix ("Business 

emit}'"), which is usually used for entities that don't nonnally offer hazardous materials. 

Category IL Column B of the matrix carries a range of penalties from Sl,500 for 

minimum weight ca>es to S8.200 for maximum weight cases for each violation group. 

The moderate range of the Matrix ranges from approximately S3,733 to approximately 

$5,966. The median of the range is S4850. The original $33,950 proposed civil penalty 

would have been supponed by assigning a $4,850 penalty to each violation group. The 

FAA would have been justified in choosing any penalty in the moderate range for seven 

violation groups (shipping papers, labels, marking, packaging, training, release, and 

emergency response information). In this case, it chose the median, which produced Ihc 

total amount of S33.950. 

Even though the evidence indicated that Respondent's corrective action didn't 

meet Ihe requirements of the regulation, as a good faith an offer of settlement, the FAA 

mitigated the civil penalty from the justified original amount. The documents 

Respondent provided did not meet the applicable training requirements of 49 C.F.R. 
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12 

§172. 700 et. seq. ID at 4; See, Exhibit R-1, and R-2. For example, the documents 

contained no documentation of any of the types of training required by 49 C.F.R. § 172. 

704(a). The evidence of training was nol timely, did not show completed training, or was 

prospective. Nevertheless, the FAA, as a good faith offer of sctllement, reduced the 

proposed civil penalty to $30,000. 

No other mitigating factors arc present. Even if the corrective action Appellant 

submitted was legally sufficient according to the HMRs. the kind of corrective action 

Appellant presented can be considered neither timely nor comprehensive. See, TCI 

Corporation. Order No. 92-77. p.21. (December 22, 1992). ("A carrier's .swift action 

designed to better insure future compliance may warrant such a reduction."). No credit 

should be given for training ihai is legally required for Respondent's employees and 

agents. Phillips Building Supply, FAA Order No. 2000-20 (August 11, 2000), al 10 

("Larger adjustments are reserved for corrective measures that arc more thorough, 

immediate, or both."). 

Respondent's ability to pay is not in dispute in this case. Res-pondcnt has not 

alleged that it does nol have the ability lopay the proposed civil penalty of 530,000. 

Although ability to pay is one of the statutory factors, this factor cannot accurately be 

considered until Respondent raises the issue. It is in the nature of an affinnative defense, 

which must be proNed by respondent. See, In the Matter of Dominion Concepts. Inc., 

FAA Order No. 2005-4, (March 10,2005), at 10, n. 16). Ability to pay musl be 

specifically pleaded in the Answer, The Administrator does not require the prosecutor at 

a hazardous material case hearing lo offer evidence on each of the specified 

considerations." In the Matter of Northwest Airlines. Inc., FAA Order No. 90-37, at 14 

49 C.F R. §172. 704 di;scribes the iuformation all training lecords "shall include". 
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13 

(November 7, 1990). For example, if Respondent does not raise the issue of'"other 

matters as justice may require", which could include many factors that Complainant 

cannot anticipate. Complainant cannot present evidence on that statutory factor. 

Complainant therefore, is nol required to present evidence on Respondent's ability lo pay, 

especially when Respondent did not raise that issue as an affirmative defense. 

The transportation of hazardous materials is inherently dangerous. A hay.ardous 

material is defined in the HMRs as "a substance or material that the Secretary of 

Transportation has determined is capable of posing an unreasonable risk to health, safely, 

and property when transported in commerce'', and has been so designated. 49 C.F.R. 

§171.S. Therefore, offerors of inherently dangerous materials such as flaiimaablc liquids 

have a very high duty of care. 

In addition lo the inherent danger of this material, ihis particular shipment was 

undeclared - meaning there was no paperwork, tl^ere were no markings or labels to lei Ihe 

carrier, the pilot, or anyone else know the dangers in.-iide the outer conlainer. An 

undeclared shipmeni destroys the entire regulatory scheme set up to prevent such 

packages from being transported. There was no emergency response information or 

telephone number on the shipping papers with the shipment to let the pilot know how to 

properly segregate the material or to let first respondcrs react properly if there was a spill 

of this material as there was in this case. 

As explained in detail above. Respondent had the knowledge, or if it exercised 

reasonable care, would have had knowledge that this shipmeni contained hazardous 

materials. Under the circumstances, the proposed civil penalty is supported by statute, 

regulation, policy, and case law. In contrast, Appellant cited the wrong sanction 
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guidance in his brief It cites sanction guidance in 49 CFR Part 107. App. A, which 

contains guidelines for the Pipeline and Hazardous Materials Safely Administration, not 

the FAA. As explained above, the FAA's Sanction Guidance is published in FAA Order 

2150.3B. The FAA, under delegated authority, enforces the Federal hazardous material 

transporiation law and the HMR, with particular emphasis on shipmeni of hazmat by air. 

49 C.F.R. § I -47(1). Sections levied in other cases, which may weigh slalutory factors 

differently and may hsive different evidence, do nothing to decrease the legitimacy of the 

penalty supported by the record in this case, which applies to Appellant's particular 

circumstances. 

CONCLUSION 

Accordingly, Complainant respectfully submits that the fuUy-devcloped record in 

this case clearly supports the ALJ's initial decision and the 530,000 penalty it as.<;essed. 

Complainant respectfully requests that the Administrator affirm the ALJ's initial 

decision. 

Respectfully submitted this 12th day of August, 2011. 

Peter J. Lynch 

Assistant Chief Counsel 

Enforcement Division 

Federal Aviation Administration 

BY: 

GERALD A. ELLIS 

Artomey 

Office of the Regional Counsel 
08/18/201 1 18.11 FAX 2024935142 FAA ^ DM S a015/015 

15 

CERTIFICATE OF SFRVICL 

I hereby certify' that the foregoing Complainant's Reply Brief ha.^ been mailed by 

I'EDERAL EXPRESS to the following: 

I'cdcral Aviation Administration 

600 Independence Ave., SVV 

Wilbur Wiighi Building - Suite 2W1000 

Washington, DC 20591 

Aim; Hearing Docket Clerk, AGC-4J O 

(Original -^ I copy) 

Michael C. Crowley. 

As.-^islant Attorney Genera! 

Office of the Aiujmey General of Texas 

Environmental Protection and .Adininiilralive Law Division 

300 W. ! 5'''Street, 10 Fluor 

-Austin, r x 7R701 

Regional Counsel 

mi \ mr 

Dated