DAVID F. SHAYNE ENFORCEMENT DIVISION-WESTERNTEAM 1601 LIND AVE., SW RENTON, WASHINGTON 98057 TELEPHONE: (425) 227-2165 FACSIMILE: (425) 227-1007 

### UNITED STATES OF AMERICA DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, D.C.

Inthe Matter of: FEDERAL EXPRESS



### I INTRODUCTION FAA Case No. 2015NM720020 FDMSD No. FAA 2015-3306 Complainant's Motion Opposing espondent's Motion to Dismiss

Respondent inthe above-captioned matter has moved for apartial dismissal ofthe Complaint in the above-captioned matter, specifically, Section II paragraphs 5-9 and Section III paragraph l(a). Pursuantto 14 CFR 13.218(d), Complainthereby replies and moves for a denial ofRespondent's motion. 

### II BACKGROUND OnApril 9, 2015, following an investigationby FAA Special Agents, Complainant issued
a Notice ofProposed Civil Penaltyproposing a fine of$18,000.00 for two separate violations. The April notice served as the basis for the Complaint in this matter. The first violation occurred when Respondent accepted and transported a package that had external markings indicating it contained Hazardous Materials (HAZMAT) but, infact, did not. That violated 49 CFR 172.303(a). Respondent does not contest and has, in fact, admitted this violation.

Page I of9 DAVID F. SHAYNE, FAA ATTORNEY TEL: (425) 227-2165; FAX: (425) 227-1007The second violation occurred whenRespondent accepted for transportation, and infact transported via aircraft, aplastic drum-type container holding HAZMAT, specificallyresin solution. The plastic drum did not conform to the requirements of49 CFR 173.27(c)(3)(ii) in that it did nothave a marked test pressure of80 kPa1 or higher. Respondent does not contestthe underlying facts leading to the allegation, but maintains it had no legal obligation to ensure the drum bore the required marking because another section, 49 CFR 175.30, does not obligate itto do so. Respondent's entire motion rests onits assertion that 49 CFR 175.30 constitutes the four
corners ofitslegal duties under the Hazardous Materials Regulations (HMRs), and 49 CFR 175.3 cannot include legal requirements not already expressed in49 CFR 175.30. Respondent errs; it is bound by 49 CFR 175.3 and subjectto sanction for failing to comply therewith, as explained below. 

### III ARGUMENT AND REQUESTED RELIEF A. Regulations to be construedto give each rule meaning. Regulations are construed similarlyto statutes, as explainedby the Federal Court of Appeals, "In construing regulations, as with statutes, we look first to the plain meaning ofthe language used. 

### E.g., KCMC, Inc. v. FCC, 600 F.2d 546,549 (5th Cir.l979). lfthatis ambiguous, we turn to the administrative interpretation ofthe regulation, " 'which becomes ofcontrolling weight unless it is plainly erroneous or inconsistent with the regulation,'" United States v. Larionoff, 431 U.S. 864, 872, 97 S.Ct. 2150,2155, 53 L.Ed.2d 48 (1977) (quoting Bowles v. Seminole Rock Co., 325 U.S. 410, 414, 65 S.Ct. 1215, 1217, 89 L.Ed. 1700 (1945)), or inconsistent withthe statute under which it is promulgated. Id 431 U.S. at 873, 97 S.Ct. at 2156. Inthe absence ofan administrative interpretation, a court applies the normal principles ofstatutory construction, considering such factors as the overall purpose ofthe governing statute, the overall purpose ofthe regulation, its history, and the practical consequences ofsuggested interpretations in order

1 "kPa" is shortfor "kilopascal", a means ofmeasuring pressure within defined area. The marking indicates the drum has been subjected to hydrostatic pressure testing in compliance with 49 CFR 178.605. DAVID F. SHAYNE, FAAATTORNEY TEL: (425) 227-2165; FAX: (425) 227-1007to determine the intent ofthe enactingbody. See, e.g., New York State Commission of Cable Television v. FCC, 571 F.2d 95, 98 (2d Cir.), cert. denied, 439 U.S. 820, 99 S.Ct. 85, 58 L.Ed.2d 112 (1978)." United States v. Heller, 726 F.2d 756, 762 (Temp. Emer. Ct. App. 1983). Moreover, courts are required to "construe regulations so as to give effect and meaning to eachofa regulation's subsections, ifpossible." Barbozav. CaliforniaAss'n ofProf!Firefighters, 651 F.3d 1073, 1078- 79 (9th Cir. 2011) 49 CPR 175.3 simply states, "Ahazardous material that is notpreparedfor shipment in accordance with this subchapter maynot be offered or accepted for transportation ortransported aboard an aircraft." (Emphasis added.) That sectionbroadlyrefers to a shipmentthatis not prepared in accordance with Title 49 ofthe CPR, Subtitle B, Chapter I, Subchapter C. 49 CPR 175.30 has four specific prohibitions regarding acceptance or carriage of HAZMAT. Subsection (a) prohibits acceptance ofa HAZMAT unless the aircraft operator "ensures" certain conditions exist (stated in (a)(!) through (a)(5)). Subsections (b) and (c) of49 CPR 175.30 prohibitthe carriage ofHAZMAT aboard an aircraft unless certain conditions are met. Subsection (d) prohibits the acceptance ofa HAZMA T overpack unless the operator "has taken all reasonable steps to establish that" certain conditions exist (stated in (d)(!) through (d)(3)). The Complaint inthis matter does not allege thatRespondent carried HAZMAT in violation ofSection 175.30, nor does it allege thatthe shipment in questions was an overpack. 49 CPR 175.3 and 49 CPR 175.30 are unambiguous; more importantly, they do not conflict. They do semantically overlap inpart, butthat does notprovide a basis for a courtto invalidate one regulation over the other. Regulations mustbe construed "so that effect is given to all its provisions, so that no partwill be inoperative or superfluous, void or insignificant." United States v. Gross, 73 M.J. 864, 870, fn 6 (A. Ct. Crim. App. 2014).

DAVID F. SHAYNE, FAA ATTORNEY TEL: (425) 227-2165; FAX: (425) 227-1007To the extentthe rules overlap, they are still both enforceable and the adjudicator is not at libertytojudiciallyrepeal or limit the application of49 CFR 175.3. Kyne v. Ritz-Carlton Hotel Co., 835 F. Supp. 2d 914, 934 (D. Haw. 2011). The fact that 49 CFR 175.3 is a broad rule of general application does not create an irreconcilable conflict with 49 CFR 175.30 so that one or the other is unenforceable. See Bobb v. Attorney Gen. ofU.S., 458 F.3d 213,217-18 (3d Cir. 2006) (holding thatthe INS couldbring removal proceedings under either a specific or general regulation that were both applicable to the conduct at issue, noting, "[The erroneous] conclusion that the INS .carmot bring removal proceedings under both subsections has no analogue inthe criminal context, in which courts have recognized prosecutorial discretion to bring charges when particular statutes overlap.") Based onthe rules ofconstruction discussed above, 49 CFR 175.3 is enforceable, evenif the facts could be modified to also demonstrate a violation of49 CFR 175.30. Inthis case, however, the Complaint does not allege a violation of49 CFR 175.30. Itwas not---and is not---incumbent on Complainantto allege how Respondent violated one ofthe specific provisions of49 CFR 175.30. Complainant alleged a violation of49 CFR 175.3, and it is only incumbent on Complainantto prove that Respondent knowingly accepted or transported a shipment of HAZMAT when that shipment was not prepared in accordance with Title 49 ofthe CFR, Subtitle B, Chapter I, Subchapter C. To hold otherwise would be to effectively amend 49 CFR 175.3 to drastically narrowthe scope of"Title 49, Subtitle B, ChapterI, Subchapter C" to the specific provisions in 49 CFR 175.30. Respondent has not cited any regulatory history that would even hintthat the Research and Special Programs Administration (predecessor ofthe Pipeline and Hazardous Materials Safety Administration) intended any such result when itpromulgated or

DAVID F. SHAYNE, FAA ATTORNEY TEL: (425) 227-2165; FAX: (425) 227-1007amended part 175. The ALJ in this case should construe "Title 49, Subtitle B, ChapterI, Subchapter C" to have its plain language meaning. Respondent has failed to state a legal basis to support its motion; the ALJ should find there is no ambiguity or basis for refusing to enforce 49 CPR 175.3 under the facts ofthis case. 49 CPR 175.3 is the appropriate HMR for this case and is fully enforceable, as the Administratorhas already considered. (See Section III(B) ofthis response.)

B. The Adminsitratorhas already held 49 CFR 175.3 is enforceable. As discussed above, there is no conflict or ambiguity thatrequiresjudicial construction,
or prevents the Administrator from fully enforcing 49 CPR 175.3. Moreover, although the specific argument Respondent raises hereinhas notbeen addressed, the Administrator, in his capacity as Decisionmaker, has already recognized that a violation of49 CPR 175.30 canbe affirmed, even ifthe same conduct also violates 49 CPR 175.3. Inthe Matter ofEmpire Airlines, Inc., CP09NM0009, 2012 WL 5378722, at *9 (Oct. 11, 2012). Respondent concedes as much in its motion (at page 7). Thus, it is clear the Administrator fully recognizes the overlapping nature ofthe two regulations and does not find the overlap to be a basis for limiting his authority to penalize violators under eitherregulation or both. 2

2 Respondent's argumentregarding the overlap of49 CFR 175.3 and 49 CFR 175.30, to the extent it has any validity, could apply to the actual sanction amount, sincethe Administratorhas held separate penalties may notbe imposed for violatingboth regulations when the same conduct is at issue. IN THE MATTER OF: COASTAL AIRTRANSPORT, INC. RESPONDENT, 2014 WL 1204673, at *12. However, that issue does notexist inthis case since 49 CFR 175.30 has not been alleged.

DAVID F. SHAYNE, FAA ATTORNEY TEL: (425) 227-2165; FAX: (425) 227-1007Finally, acceptance ofRespondent's argument wouldresult inthe absurd outcome that Respondent can ignore the fact that a shipper submitted an improperly marked package, even though Respondent had actual or constructive knowledge oftheimpropermarking. This attempt to circumvent a clearviolationhas disturbing implications for safety. One need look no farther than the facts ofthe case 

### subjudice: Given that the drum did notbearthe proper marking indicated it had undergone the required testing, then the possibility exists the drum in fact had not beentested or did not actually meet the minimumrequirements. This, inturn, means that a real risk ofa release ofHAZMAT existed. Under Respondent's theory, ifa leak had occurred, the Administrator would be powerless to take any punitive action against Respondent as a result. Such an interpretation would be clearly contrary to the underlying legislative and regulatory intent ofboththe legislative and executive branches ofthe Government. See United States v. Scenic ViewDairy, L.L.C., No. 1:10-CV-865, 2011 WL 3879490, at *11 (W.D. Mich. Sept. 1, 2011) (Noting that remedial legislation intendedto protectpublic healthis to be construed liberally). C. Respondent's arguments regarding "overpack" and training are inapposite, The "overpack" argument is fundamentally flawed in that it is the equivalent ofarguing "ifmy aunt had wheels she'dbe abicycle." Overpacks are permitted pursuantto specific regulations, whichRespondent cites. This was not an overpack, so the arguments are irrelevant. The "overpack" argument is a weak attempt to circumventthe clear guidance the Administratorhas provided ininterpreting the regulations at issue regarding air carrier liability. The Administrator held in In the Matter ofEmpire Airlines, 

### supra at 8, thatthe test is a common
sense one, ifthe transporter accepting and transporting the shipment in question was in a position to readily ascertain the violation, it will be held responsible for not doing so. In so holding, the

DAVID F. SHAYNE, FAAATTORNEY TEL: (425) 227-2165; FAX: (425) 227-1007Administrator quoted the preamble to the amendments to Section 175.30 in2006: "[t]o ignore readily apparent facts indicating
... [that] a shipment actually contains a hazardous material governedby the HMRdespite the fact it may not be properly marked, labeled, placarded, or described on a shipping paper as containing a hazardous material, would not represent reasonable care." 71 Fed. Reg. 14586, 14592 (March 22, 2006)
.

### .lcl. As argued above, inthis case, Respondent's personnel couldhave easily determined the drum did not meet the HMRrequirements discussed above. It did not exercise reasonable care andhad at least constructive knowledge ofthe violation. Legal enforcementpursuantto 49 CFR 175.3 is therefore appropriate. Respondent's training program argument is evenmore irrelevantthan its overpack argument. The Administrator does not create Respondent's trainingprogram, and Respondent is not relieved ofits regulatory or statutory duties bothregarding training and the transporting of HAZMA T simply because an FAA employee may have failed to notice a defect inthe training program. The duty to comply with applicable regulations remains ultimately with Respondent, as the Administrator explained inIn the Matter ofEmpire Airlines, 

### supra at 9: "Underthe statute and the regulations, Respondent has a non-delegable duty to bar the transportationby air ofgoods that itknows or should reasonably know do notconformto the HMR. HowRespondent chooses to meetthat obligationis up to Respondent, regardless ofwhether the obligation is met by Respondent's employees, its contractor's employees, an agent's employees, or some combination thereof." (Emphasis added). Just as its regulatory duties cannotbe delegated to thirdparties, it certainly cannot be delegated to the Government. Respondent's arguments should be rejected and its Motionto Dismiss denied.

DAVID F. SHAYNE, FAA ATTORNEY TEL: (425) 227-2165; FAX: (425) 227-1007

### IV CONCLUSION Respondent is, in effect, asking the ALJ to ignore the plain and unambiguous language of 49 CPR 175.3, and deny the Administrator's statutory authority to enforce it. Itis quite telling the Respondent fails to cite a single case that held in manner consistent withits argument. This tribunal, as well as all other adjudicators, are obligatedto uphold validlypromulgated regulations
as writtenunless a compelling basis exists for doing otherwise. Respondent did not and cannot show that any suchbasis exists and its Motion to Dismiss should therefore be denied. Respectfully submitted this 9th day ofOctober, 2015.



### DAVID F. SHAYNE FAAAttomey

DAVID F. SHAYNE, FAAATTORNEY TEL: (425) 227-2165; FAX: (425) 227-1007CERTIFICATE OF SERVICE I hereby certifY that the foregoing Complainant's Motion Opposing Respondent's Motionto Dismiss has been served by first class mail, and facsimile where indicated, to the following: Federal AviationAdministration Attn: Hearing Docket Clerk, AGC-430 Wilbur Wright Building- Suite 2Wl000 800 Independence Avenue SW Washington, D.C. 20591 Fax: (202) 267-1293 Honorable J.E. Sullivan Office ofHearings, M-20 U.S. Department ofTransportation 1200 New Jersey Avenue, S.E. East Bldg., Ground Floor, RoomEll-310 Washington, D.C. 20590 Fax: 202-366-7536 Greg. G. Stofko Senior Attorney Regulatory Affairs 1700 PennsylvaniaAvenue, N.W., Suite 950 Washington, DC 20006

Dated this 9th day ofOctober 2015.

JeffKamberg, 'tegalTechnician Enforcement Division National Enforcement Program Western Team Federal AviationAdministration Renton, Washington

DAVID F. SHAYNE, FAAATTORNEY TEL: (425) 227-2165; FAX: (425) 227-1007