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U.S. Department ofTransportation FederalAviation Administration



### MAY : G 2013 Eastern Region Regional Counsel Telephone: 718 553-3272 Facsimile: 718 995-5699 

### FEDERAL**EXPRESS~** FederalAviationAdministration 800 Independence Avenue, S.W. Washington, D.C. 20591 Attn: Hearing DocketClerk, AGC-430 WilburWrightBuilding- Room 2014 1Aviation Plaza Jamaica, NY 11434 

# RECEIVED MAY 1 72013 HEARING DOCKET

ATTN: HEARINGDOCKET CLERK Re: 

### Jnthe MatterofRadio HollandUSA, Inc. 

# JP13- 

## Au:>A#Ct¥-

### ..2-a-1~ DocketNo. 20IlEA 700202 

# Fcms OWl 3- 02.

# rJo Enclosedhereinpleasefind a copy ofa request for hearing andthe original and one copyof the FAA's Complaint 

### in the above-entitled action for tiling, together 

### with proofof service uponthe Respondent. The FAArequests that the hearing 

### in this matter be held

### in the WashingtonD.C. area, and expects 

### thatthehearing

### will lastone day. Please address 

### all communications for the Federal Aviation Administration tothe attention ofJeanine Gotimer, Office of the RegionalCounse4 1AviationPlaza Jamaica, NY 11434. Sincerely, AlfredR Johnson, Jr. Regional Counsel
By:

# L!~CYtk~ Attorney Enclosures
cc: AEA-700 '· - ( 'U.S. DEPARTMENT OF TRANSPORTATION FEDERAL AVIATIONADMINISTRATION OFFICE OF HEARINGS

WASHINGTON, D.C.
Inthe Matter of Radio HollandUSA, Inc. 2011EA700202 Judge NotAssigned

COMPLAINT The Federal Aviation Administration (FAA), by counsel, hereby files its Complaint, pursuantto Rule 208 ofthe Rules ofPractice (14 C.P.R. 13.208), and states as follows: I Respondent, Radio Holland USA, Inc., was advised through a Final Notice ofProposed Civil Penalty that the FAAproposed to assess a civil penalty in the amount of$88,500. On April29, 2013, Respondent submitted awritten demand for a hearing. II

1. On or about March 4, 2011, Radio Holland USA, Inc., (Radio Holland), through its employee Damon Cole, knowingly offered hazardous material to US Airways for air transportation aboard Flight 4084 from Norfolk, Virginiato Philadelphia, Pennsylvania.

### 2. · Mr. 

### Cole offered an Ultra Torch soldering iron containing butane fuel (the shipment) in his checked baggage, for air transportation aboard US Airways Flight 4084, a passenger carrying flight from Norfolk, Virginia to Philadelphia, Pennsylvania with onward travel to Jacksonville, Florida.

3. The shipment was assigned Baggage Tag No. 0037007701.

4. The UltraTorch soldering iron contained butane fuel. Butane fuel is regulated by the Department ofTransportation Hazardous Materials Regulations, 49 C.F.R. 171 et. seq. 

### (DOT HMR).

5. The proper shipping name ofbutane fuel is Petroleum gases, liquefied. It

### is in Hazard Class 2.1 and has an assigned identification number ofUN1075. The proper label is FLAMMABLE GAS.

6. The hazardous material describedherein is forbidden for transportation aboard apassenger carrying flight.

7. At all times mentioned herein, the shipmentwas not accompanied by a Shipper's Certification or Declaration ofDangerous Goods.

28. The shipmentbore no markings or labels to indicate its hazardous nature.

9. Radio Holland offeredthe shipment for air transportation in non-bulk packaging when itfailed to markthe package withthe proper shipping
name and identificationnumber for the material as showninthe Table at49 CPR §172.101 ofthe DOT HMR.

10. Radio Holland offeredthe shipment for air transportation when it failed to
ensure thatthe thepackage bore a FLAMMABLE GAS label, the label specified for the material in the Table at 49 CPR §172.101 ofthe DOTHMR. 11. Radio Holland offeredhazardous material for transportation by air and failed to label the shipmentwith theprimary hazard label for the material as specified inthe Column 6 ofthe inthe Table at 49 CPR §172.101 ofthe DOTHMR.

12. Radio Holland offeredthe shipment, which is authorized on cargo aircraft only, for airtransportation when itfailed to ensure thatthepackagebore a CARGO AIRCRAFT ONLY label specified in 49 CPR§ 172.448 ofthe DOTHMR.

313. Radio Holland offered the shipment for air transportation without shipping papers that included:
(a) the proper shipping name prescribed for the hazardous material;
(b) the hazard class prescribed for the hazardous material;
(c) the assigned identificationnumberprescribed for the hazardous material; and
(d) The number and type ofpackages.

15. Radio Holland offeredthe shipment for airtransportation when it failed to: (a) certify that the hazardous material was offered in accordance with the DOT HMR by printing on the shipping paper the certification set forth in Section 172.204(a) or 172.204(c)(1) ofthe DOT HMR (49 C.F.R. Section 172.204(a) or Section 172.204(c)(l)); (b) add the statement 'I declare that all of the applicable air transport requirements have been met." to the cetification on the shipping paper as

4required by 172.204(c)(3) of the DOT HMR (49 C.P.R. Section 172.204(c)(3)); and (c)provide two copies ofthe required certifications to the aircraft operator.

16. Radio Holland offered the above-described shipment ofhazardous material for transportation by air when it did not make emergency response information, including the emergency response telephone number, immediately available for
use at all times the hazardous material was present.

17. Radio Holland offeredthe above-described shipment ofhazardous material for transportation by air when it failed to ensure that each of its hazmat employees received hazardous materials training in accordance with the requirements prescribed in SubpartH ofthe DOT HMR.

18. Specifically, Radio Holland offered the above-described shipment of hazardous material for transportation by air when it failed to ensure that its employee Damon Cole received General Awareness/familiarization training as required by the DOT HMR at 49 CPR 172.704(a)(1).
5

### III By reason of the foregoing facts and circumstances, Respondent violated the following section(s) ofthe Department ofTransportationHazardous Materials Regulations:

a. Section 171.2( e), which states that 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 of this subchapter or an exemption or special permit, approval, or registration issued underthis subchapter or subchapterA ofthis chapter.

b. Section 172.200(a), which states that, 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 manner required bythis subpart.

c. Section 172.202(a)(1), which states that the shipping description of a hazardous material on the shipping paper must include the identification number prescribed for the material as shown in Column ( 4) ofthe §172.101 table. 6d. Section 172.202(a)(2), which states that the shipping description of a hazardous material on the shipping paper must include the proper shipping
nameprescribed for the material in Column (2) ofthe 

### §172.101 table.

e. Section 172.202(a)(3) which states that the shipping description of a hazardous material on the shipping paper must include the hazard class or division number prescribed for the material, as shown in Column (3) ofthe 

### §172.101 table. The subsidiary hazard class or division number is notrequired to be entered when a corresponding subsidiary hazard label is not required. Except for combustible liquids, the subsidiary hazard class(es) or subsidiary division number(s) must be entered in parentheses immediately following the primary hazard class or division number. In addition-- (i) The words "Class"
or "Division" may be included preceding the primary and subsidiary hazard class or division numbers. (ii) The hazard class need not be included for the entry "Combustible liquid, n.o.s." (iii) For domestic shipments, primary and subsidiary hazard class or division names may be entered following the numerical hazard class or division, ·or following the basic description.

7f. Section 172.202(a)(7), which states that the shipping description of a hazardous material on the shipping paper must include the number and type ofpackages.

g. Section 172.204 (a), which states that, except as provided in paragraphs (b) and (c) of this section, each person who offers a hazardous material for transportation shall certify that the material is offered for transportation in accordance with this subchapter by printing (manually or mechanically) on the shipping paper containing the required shipping description the certification contained in paragraph (a)(1) ofthis section or the certification (declaration) containing the language contained in paragraph (a)(2) ofthis section.

h. Section 172.204(c)(2), which states that each person who offers a hazardous material to an aircraft operator for transportation by air shall provide two copies of the certification required in this section. (See §175.30 of this subchapter.)

1. Section 172.204(c)(3), which states that effective October 1, 2006, each person who offers a hazardous material for transportation by air must add to 8the certification required in this section the following statement:''I declare that all ofthe applicable air transport requirements have been met." (i) Each person who offers any package or overpack of hazardous materials for transport by air must ensure that: (A) The articles or substances are not prohibited for transport by air (see the §172.101 Table); (B) The articles or substances are properly classed, marked and labeled and otherwise in a condition for transport as required by this subchapter; (C) The articles or substances are packaged in accordance with all the applicable air transport requirements, including appropriate types ofpackaging that conform to the packing requirements and the "A" Special Provisions in §172.102; inner packaging and maximum quantity per package limits; the compatibility requirements (see, for example, §173.24 ofthis subchapter); andrequirements for closure for both inner and outer packagings, absorbent materials, and pressure differential in §173.27 ofthis subchapter. Other requirements may also apply. For example, single packagings may be prohibited, inner packaging may need to be packed in intermediate packagings, and certain materials may be required to be transported in packagings meeting a more stringentperformance level.

J. Section 172.300(a), which states that each person who offers a hazardous material for transportation shall mark each package, freight container, and
9transportvehicle containing the hazardous material inthe manner required by this subpart.

k. Section 172.301(a)(1), which states that, except as otherwise provided by this subchapter, each person who offers ahazardous material for transportation in
a non-bulk packaging must mark the package with the proper shipping name and identification number (precededby "UN" or "NA," as appropriate) for the material as shown in the §172.101 Table. Identification numbers are not required on packagings that contain only ORM-D materials or limited quantities, as defined in §171.8 of this subchapter, except for limited quantities marked in accordance withthe marking requirements in §172.315.


### 1. Section 172.400(a), which states that except as specified in §172.400a, each person who offers for transportation or transports a hazardous material in any ofthe following packages or containment devices, shall label the package or containment device with labels specified for the material in the §172.101 Table and in this subpart. (1) A non-bulk package; (2) A bulk packaging, other than a cargo tank, portable tank, or tank car, with a volumetric capacity of less than 18 m3 (640 cubic feet), unless placarded in accordance with subpartF ofthis part; (3) A portable tank ofless than 3785 L (1000 gallons) capacity, unless placarded in accordance with subpart F ofthis part; (4) A
10DOT Specification 106 or 110 multi-unit tank car tank, unless placarded in accordance with subpartF ofthis part; and (5)An overpack, freight container
or unit load device, of less than 18 m3 (640 cubic feet), which contains a package for which labels are required, unless placarded or marked in accordance with §172.512 ofthis part.

m. Section 172.402(a)(1), which states that eachpackage containing a hazardous material shall be labeled with primary and subsidiary hazard labels as specified in column 6 ofthe §172.101 table (unless excepted in paragraph (a)(2) ofthis section).

n. Section 172.402(c), which states that each person who offers for transportation or transports by aircraft a package containing a hazardous material which is authorized on cargo aircraft only shall label the package with a CARGO AIRCRAFT ONLY label specified in §172.448 of this subpart.

o. Section 172.600( c), which states that no person to whomthis subpart applies may offer for transportation, accept for transportation, transfer, store or otherwise handle during transportation a hazardous material unless: (1) Emergency response information conforming to this subpart is immediately
11available for use at all times the hazardous material is present; and (2) Emergency response information, including the emergency response telephone number, required by this subpart is immediately available to any person who, as a representative of a Federal, State or local government agency, responds to an incident involving a hazardous material, or IS conducting an investigationwhich involves ahazardous material.

p. Section 172.702(a), which states that a hazmat employer shall ensure that each ofits hazmat employees is trained in accordance with the requirements prescribed inthis subpart.

q. Section 172.704(a)(l), which states that hazmat employee training shall include the following: Each hazmat employee shall be provided general awareness/familiarization training designed to provide familiarity with the requirements ofthis subchapter, and to enable the employee to recognize and identify hazardous materials consistent with the hazard communication standards ofthis subchapter.

r. Section 173.22(a)(l) which states that, except as otherwise provided in this part, a person may offer a hazardous material for transportation in a packaging or container required by this part only in accordance with the
12following: (1) The person shall class and describe the hazardous material in accordance withparts 172 and 173 ofthis subchapter.

s. Section 173.27(b)(1), which states that when Column 9a of the §172.101 Table indicates that a material is "Forbidden", that material may not be offered for transportation or transported aboardpassenger-carrying aircraft.

IV

1. Pursuantto 49 U.S.C. §5123(a) ofChapter 51, Title 49 ofthe United States Code of Transportation, 49 U.S.C.§5123 Respondent is liable for a civil penalty ofnot less than $250 ($450 for training violations), nor greater than $55,000 ($110,000 if death, serious illness, severe injury, or substantial property damage results), for each ofthe violations alleged.

2. Under the facts and circumstances of this case, a civil penalty of $88,500 IS appropriate.

13WHEREFORE, the FAA, by counsel, respectfully requests 

### that the Administrative Law Judge enter anorderthatRespondentbe assessed a civilpenaltyintheamountof $88,500.
Respectfully submitted, Alfred R Johnson, Jr. Regional Counsel

# By:~('~ anine C. Gotimer Attorney Federal AviationAdministration 1AviationPlaza Jamaica, NY 11434 718 553-3272 718 995-5699 

### NOTE: TheRules ofPracticefor this proceeding aresetforth in Part 13, Subpart G, of theFederalAviation Regulations (14 C.F.R.. Part 13). The Rules ofPractice provide that Respondent must file a written answer to this Complaint, or a written Motion to Dismiss ifappropriate, not later than 30 days afterthedateshown on theCertificate ofService. A general denial is deemed a failure to file an answer (Section 13.209(e)).

2CERTIFICATE OF SERVICE
I hereby certify that on this 16th of May, 2013, copies ofthe foregoing Administrator's Complainthas been served upon the following viaFederal Express:

Dated: May 16, 20 13 Hearing Docket, AGC-430 Attention Hearing Docket Clerk Federal AviationAdministration 800 Independence Avenue, SW Wilbur Wright Building- Rm. 2014 Washington, DC 20591 Ms.AnacarolinaEstaba, Esq. Gardere Wynne Sewell LLP 1000 Louisiana, Suite 3400 Houston, Texas 77002-5011


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Paralegal Specialist FederalAviationAdministration Office ofRegional Counsel 1AviationPlaza Jamaica, NY 11434

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