DAVID F. SHAYNE 

ENFORCEMENT DIVISION-WESTERN TEAM 

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. 

In the 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 in the above-captioned matter has moved for a partial dismissal ofthe 

Complaint in the above-captioned matter, specifically, Section II paragraphs 5-9 and Section III 

paragraph l(a). Pursuant to 14 CFR 13.218(d), Complaint hereby replies and moves for a denial 

of Respondent's motion. 

II BACKGROUND 

On April 9, 2015, following an investigation by FAA Special Agents, Complainant issued 

a Notice of Proposed Civil Penalty proposing 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, in fact, 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) 227-1007 
The second violation occurred when Respondent accepted for transportation, and in fact 

transported via aircraft, a plastic drum-type container holding HAZMAT, specifically resin 

solution. The plastic drum did not conform to the requirements of 49 CFR 173.27(c)(3)(ii) in 

that it did not have a marked test pressure of 80 kPa1 

or higher. Respondent does not contest the 

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 it to 

do so. 

Respondent's entire motion rests on its assertion that 49 CFR 175.30 constitutes the four 

corners of its legal duties under the Hazardous Materials Regulations (HMRs), and 49 CFR 175.3 

cannot include legal requirements not already expressed in 49 CFR 175.30. Respondent errs; it is 

bound by 49 CFR 175.3 and subject to sanction for failing to comply therewith, as explained 

below. 

III ARGUMENT AND REQUESTED RELIEF 

A. Regulations to be construed to give each rule meaning. 

Regulations are construed similarly to statutes, as explained by the Federal Court of 

Appeals, 

"In construing regulations, as with statutes, we look first to the plain meaning of the 

language used. E.g., KCMC, Inc. v. FCC, 600 F.2d 546,549 (5th Cir.l979). lfthat is 

ambiguous, we turn to the administrative interpretation of the regulation, " 'which 

becomes of controlling 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 with the statute under which it is 

promulgated. Id 431 U.S. at 873, 97 S.Ct. at 2156. In the absence of an administrative 

interpretation, a court applies the normal principles of statutory construction, considering 

such factors as the overall purpose of the governing statute, the overall purpose of the 

regulation, its history, and the practical consequences of suggested interpretations in order 

1 "kPa" is short for "kilopascal", a means of measuring 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, FAA ATTORNEY 

TEL: (425) 227-2165; FAX: (425) 227-1007 
to determine the intent of the enacting body. 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 each of a regulation's 

subsections, if possible." Barboza v. California Ass'n of Prof! Firefighters, 651 F.3d 1073, 1078-

79 (9th Cir. 2011) 

49 CPR 175.3 simply states, "A hazardous material that is not prepared for shipment in 

accordance with this subchapter may not be offered or accepted for transportation or transported 

aboard an aircraft." (Emphasis added.) That section broadly refers to a shipment that is not 

prepared in accordance with Title 49 of the 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 of a HAZMAT unless the aircraft operator 

"ensures" certain conditions exist (stated in (a)(!) through (a)(5)). Subsections (b) and (c) of 49 

CPR 175.30 prohibit the carriage ofHAZMAT aboard an aircraft unless certain conditions are 

met. Subsection (d) prohibits the acceptance of a 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 in this matter does not allege that Respondent carried HAZMAT in 

violation of Section 175.30, nor does it allege that the 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 in part, but that does not provide a basis for a court to 

invalidate one regulation over the other. Regulations must be construed "so that effect is given to 

all its provisions, so that no part will 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) 227-1007 
To the extent the rules overlap, they are still both enforceable and the adjudicator is not at 

liberty to judicially repeal or limit the application of 49 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. of U.S., 458 F.3d 213,217-18 (3d Cir. 

2006) (holding that the INS could bring 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 in the 

criminal context, in which courts have recognized prosecutorial discretion to bring charges when 

particular statutes overlap.") 

Based on the rules of construction discussed above, 49 CFR 175.3 is enforceable, even if 

the facts could be modified to also demonstrate a violation of 49 CFR 175.30. In this case, 

however, the Complaint does not allege a violation of 49 CFR 175.30. It was not---and is 

not---incumbent on Complainant to allege how Respondent violated one of the specific 

provisions of 49 CFR 175.30. 

Complainant alleged a violation of 49 CFR 175.3, and it is only incumbent on 

Complainant to prove that Respondent knowingly accepted or transported a shipment of 

HAZMAT when that shipment was not prepared in accordance with Title 49 of the CFR, Subtitle 

B, Chapter I, Subchapter C. To hold otherwise would be to effectively amend 49 CFR 175.3 to 

drastically narrow the scope of"Title 49, Subtitle B, Chapter I, Subchapter C" to the specific 

provisions in 49 CFR 175.30. Respondent has not cited any regulatory history that would even 

hint that the Research and Special Programs Administration (predecessor of the Pipeline and 

Hazardous Materials Safety Administration) intended any such result when it promulgated or 

DAVID F. SHAYNE, FAA ATTORNEY 

TEL: (425) 227-2165; FAX: (425) 227-1007 
amended part 175. The ALJ in this case should construe "Title 49, Subtitle B, Chapter I, 

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 of this case. 

49 CPR 175.3 is the appropriate HMR for this case and is fully enforceable, as the 

Administrator has already considered. (See Section III(B) of this response.) 

B. The Adminsitrator has already held 49 CFR 175.3 is enforceable. 

As discussed above, there is no conflict or ambiguity that requires judicial construction, 

or prevents the Administrator from fully enforcing 49 CPR 175.3. Moreover, although the 

specific argument Respondent raises herein has not been addressed, the Administrator, in his 

capacity as Decisionmaker, has already recognized that a violation of 49 CPR 175.30 can be 

affirmed, even if the same conduct also violates 49 CPR 175.3. In the Matter of Empire 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 of the two 

regulations and does not find the overlap to be a basis for limiting his authority to penalize 

violators under either regulation or both. 2 

2 Respondent's argument regarding the overlap of 49 CFR 175.3 and 49 CFR 175.30, to the extent it has any validity, could 

apply to the actual sanction amount, since the Administrator has held separate penalties may not be imposed for violating both 

regulations when the same conduct is at issue. IN THE MATTER OF: COASTAL AIR TRANSPORT, INC. 

RESPONDENT, 2014 WL 1204673, at *12. However, that issue does not exist in this case since 49 CFR 175.30 

has not been alleged. 

DAVID F. SHAYNE, FAA ATTORNEY 

TEL: (425) 227-2165; FAX: (425) 227-1007 
Finally, acceptance of Respondent's argument would result in the absurd outcome that 

Respondent can ignore the fact that a shipper submitted an improperly marked package, even 

though Respondent had actual or constructive knowledge ofthe improper marking. This attempt 

to circumvent a clear violation has disturbing implications for safety. One need look no farther 

than the facts of the case subjudice: Given that the drum did not bear the proper marking 

indicated it had undergone the required testing, then the possibility exists the drum in fact had 

not been tested or did not actually meet the minimum requirements. This, in turn, means that a 

real risk of a release of HAZMA T existed. 

Under Respondent's theory, if a 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 of both the legislative and 

executive branches of the Government. See United States v. Scenic View Dairy, L.L.C., No. 

1:10-CV-865, 2011 WL 3879490, at *11 (W.D. Mich. Sept. 1, 2011) (Noting that remedial 

legislation intended to protect public health is 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 of arguing 

"if my aunt had wheels she'd be a bicycle." Overpacks are permitted pursuant to specific 

regulations, which Respondent cites. This was not an overpack, so the arguments are irrelevant. 

The "over pack" argument is a weak attempt to circumvent the clear guidance the 

Administrator has provided in interpreting the regulations at issue regarding air carrier liability. 

The Administrator held in In the Matter of Empire Airlines, supra at 8, that the test is a common 

sense one, if the 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, FAA ATTORNEY 

TEL: (425) 227-2165; FAX: (425) 227-1007 
Administrator quoted the preamble to the amendments to Section 175.30 in 2006: "[t]o ignore 

readily apparent facts indicating ... [that] a shipment actually contains a hazardous material 

governed by the HMR despite 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, in this case, Respondent's personnel could have easily determined the 

drum did not meet the HMR requirements discussed above. It did not exercise reasonable care 

and had at least constructive knowledge of the violation. Legal enforcement pursuant to 49 CFR 

175.3 is therefore appropriate. 

Respondent's training program argument is even more irrelevant than its over pack 

argument. The Administrator does not create Respondent's training program, and Respondent is 

not relieved of its regulatory or statutory duties both regarding training and the transporting of 

HAZMA T simply because an FAA employee may have failed to notice a defect in the training 

program. The duty to comply with applicable regulations remains ultimately with Respondent, as 

the Administrator explained in In the Matter of Empire Airlines, supra at 9: 

"Under the statute and the regulations, Respondent has a non-delegable duty to bar the 

transportation by air of goods that it knows or should reasonably know do not conform to 

the HMR. How Respondent chooses to meet that obligation is up to Respondent, 

regardless of whether 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 cannot be delegated to third parties, it certainly 

cannot be delegated to the Government. Respondent's arguments should be rejected and its 

Motion to 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. It is quite telling 

the Respondent fails to cite a single case that held in manner consistent with its argument. This 

tribunal, as well as all other adjudicators, are obligated to uphold validly promulgated regulations 

as written unless a compelling basis exists for doing otherwise. Respondent did not and cannot 

show that any such basis exists and its Motion to Dismiss should therefore be denied. 

Respectfully submitted this 9th day of October, 2015. 

DAVID F. SHAYNE 

FAAAttomey 

DAVID F. SHAYNE, FAA ATTORNEY 

TEL: (425) 227-2165; FAX: (425) 227-1007 
CERTIFICATE OF SERVICE 

I hereby certifY that the foregoing Complainant's Motion Opposing Respondent's Motion to 

Dismiss has been served by first class mail, and facsimile where indicated, to the following: 

Federal Aviation Administration 

Attn: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building- Suite 2Wl 000 

800 Independence Avenue SW 

Washington, D.C. 20591 

Fax: (202) 267-1293 

Honorable J.E. Sullivan 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E. 

East Bldg., Ground Floor, Room Ell-310 

Washington, D.C. 20590 

Fax: 202-366-7536 

Greg. G. Stofko 

Senior Attorney 

Regulatory Affairs 

1700 Pennsylvania Avenue, N.W., Suite 950 

Washington, DC 20006 

Dated this 9th day of October 2015. 

JeffKamberg, 'tegal Technician 

Enforcement Division 

National Enforcement Program 

Western Team 

Federal Aviation Administration 

Renton, Washington 

DAVID F. SHAYNE, FAA ATTORNEY 

TEL: (425) 227-2165; FAX: (425) 227-1007