### U.S. DEPARTMENT OF TRANSPORTATION OFFICE OFHEARINGS

WASHINGTON, D. C.**1~.** 

# Rr-.·**(~~.·**

### ~- ,I 

## P.UG 17 2015 

## HEARING 

## DOCKET 1N THE MATTEROF: DOCKETNO. 2015-1321 Fisher Scientific Company, LLC FAACASENO. 2011S0700457 Respondent Judge Richard C. Goodwin

FAA'S RESPONSE TO RESPONDENT'S MOTION TO DISMISS COMPLAINT FOR INSUFFICIENCYAND FOR COMPLAINANT'S VIOLATION OF RULE 208



### The Federal Aviation Administration (hereinafter FAA), through the undersigned counsel, files this response to the Respondent's June 23, 2015, motion to dismiss. The FAA asserts the Respondent's motion should be denied. In 

### support ofits argument, the FAA submits the following:
I. 

### The Complaint Sufficiently Alleges that the Respondent Knowingly Violated 49 U.S.C., Subtitle III, Chapter 51, §§ 

### 5101-5128 (Hazardous Materials Transportation
·Act "HMTA") and 49. C.F.R. Subtitle B, Chapter I, 

### Subchapter C (hazardous

materialsregulations ("HMRs"))
Fisher Scientific Company, LLC (hereinafter "Respondent"), asserts thatthe complaint is insufficient and should be dismissed under 14 C.F.R. § 

### 13.218(£)(1)1 

### Specifically, the Respondent argues the complaint is insufficient to the extent that it alleges that the Respondent

1 14 C.F.R. § 13.218(1)(1) states [a] respondent may file a motion to dismiss the complaint for insufficiency instead offiling an answer. Ifthe administrative lawjudge denies the motion to dismiss the complaint for insufficiency, the respondent shall file an answer not later than 10 days after service ofthe administrative lawjudge's denial ofthe motion. A motion to dismiss the complaint for insufficiency must show that the complaint fails to state a violation of a provision ofthe Federal aviation statute listed in the first sentence in49 U.S.C. 4630l(d)(2) or in 49 U.S.C. 47531, or any implementing rule, regulation, or order, or a violation of the Federal hazardous materials transportation statute, 49 U.S.C. 5121-5128, or anyimplementingrule, regulation or order.

### "'knowingly' offered a declared shipment ofhazardous materials." (Respondent's Memorandum at 2, 

### '1]1). Rather, the Respondent argues the complaint is required to allege that the Respondent '"knowingly committed any act which is a violation of that or some other HMR."2 

### (Respondent's Memorandum at 2, '1]2). In otherwords, the Respondent argues thatthe complaint must allege that the Respondent knowingly violated each HMR cited in the complaint, i.e., that the Respondent "knowinglyviolated 49 C.P.R. Part 173." However, as the HMTA and case law demonstrate, theRespondent's argument is withoutmerit. The Respondent relies on the language contained in the HMTA, which states "[a] person that knowingly violates this chapter or regulation
... issued under this chapter is liable to the United States Government for a civilpenalty
...." 49. U.S.C. § 

### 5123(a)(1) (2011). However, the Respondent overlookstheterm "knowingly," whichtheHMTA defines as:
Aperson acts knowing!y**when~** 

### (A) the person has actual knowledge of the facts glVmg nse to the violation; or (B) a reasonable person acting in the circumstances and exercising reasonablecare wouldhave thatknowledge.
49. U.S.C. § 

### 5123(a)(1)(A)&(B) (2011). Based on the HMTA definition of "knowingly," the complaint only need allege that the Respondent had knowledge ofthe facts giving rise to the violation, i.e., that the Respondent "knowingly offered to United Parcel Service (UPS) a one piece shipment consisting ofa specification fiberboard box containing hazardous materials for transportationby air;"3• 4 

### not that the Respondent had knowledge that it committed aviolation of

2 Although the Respondent argues that the complaint must allege that that the Respondent "'knowingly conunitted any act which is a violation of' that or some other HMR" (Respondent's Memorandum at 2,**~2),** the Respondent argues that "in order to show that 'a person acted knowingly'
...." (Respondent's Memorandum at 3, 111), the Government must prove the person had 'actual knowledge ofthe facts living rise to the violation
...."' The FAA submits the Respondent's briefis contradictory, and submits the latter argument is a correct interpretation ofthe HMTA. 3SeeNotice ofProposed CivilPenalty,**~1** (Exhibit 1); AmendedNotice ofProposed Civil Penalty,**~1** (Exhibit2). 

### 2

### the HMRs. See 

### In the Mater of Scott H. Smalling, FAA Docket No. CP93NM0260, *1, *3 (October 5, 1994) ("However, in this context- a civil case inwhich specific intent to violate the regulations neednotbe shown-lackofknowledge ofthelaw is irrelevant."). This interpretation also was discussed and acknowledgedbyDepartment ofTransportation ("DOT") Administrative Law Judge ("ALI") Burton S. Kolka in FAA v. Boats U.S. Marine, Inc., FAA Docket No. CP94EA0148 *1,*1 (December 29, 1994). There, ALI Kolko stated "[t]he statute requires knowledge only of the act which constituted the violation

- offering a shipment for transportationby air- not knowledge ofthe application ofthe act to relevant law orregulations." In supportofhis finding, ALJ Kulko cited to legislativehistory:
The conference report accompanying H.R. 15223 (which bill was later enacted) instructs that a 'civil penaltymaybe imposed only upon proofthat the defendant knowingly committedthe actwhich constitutesthe violation (it is notnecessary to show that he knew the act constituted a violation)
..." 

### (italics supplied). S. Conf. Rep. No. 1347, 93rd Cong., 2d Sess. 23, reprinted in 

### 1974 U.S. Code Cong. & Admin. News 

### 7669, 7686. Plainly, Congress evidencing a strongpublicinterestin the enforcement ofhazardous materials regulations, required onlythatknowledge ofthe actbe shownin orderto make out aviolation.
Id. The Courthas repeatedly applied the samerequirement in subsequent casesbefore it. See 

### In the Matter of William A. 

### Luker, Jr., FAA Docket No. CP09SW0008 *1,*3 (May 13, 2010) ("[49 U.S.C.§ 5123] requires that the alleged violator must have known the 'facts givingrise to the violation."'); In the Matter ofKMC Acquisition Corp. d/b/a l<.irkhill Mfg. Co., FAA Docket No. CP08S00004 *1,*1 (August 6, 2008) ("It 

### is difficult to conceive of any plainer way to allege the mens rearequired to state a violation ofthe law" where the complaint alleges that the respondent tendered to an air carrier a package containing hazardous materials with knowledge

4 The FAA submits the Respondent knew that it offeredhazardous materials for transportation by air, to the extent that Respondent's counsel explained that the hazardous materials were "properly declared." (Respondent's Memorandum, Exhibit2, p2, 11). 3

### ofthe nature ofthe contents.); FAA v. Mace Adhesives & 

### Coatings Co., Inc., FAA Docket No. CP02EA0004 

### *1,*1 (June 19, 2002) ("Congress intended civil penalties to be imposed on those who knowingly committed the act that constituted a violation, which boils down to knowingly tendering a shipment for carriageinair commerce."). Based on the foregoing, the Respondent's argument that the complaint must allege that the Respondent "knowingly committed any act which is a violation ofthat or some other HMR" is withoutmerit and due to bedenied.
II. The FAATimelyNotifiedthe Respondent ofViolating 14 C.P.R. § 

### 173.27(e)
The Respondent argues that the complaint, in its entirety, should be dismissed under 14 C.P.R. § 208(d),5 

### because the Agency amended its Notice ofProposed Civil Penalty more than two years after the facts givingrise to the violation occurred. 6 

### (Respondent's Memorandum at 5,**~4).** 

### More specifically, the Respondent argues that the FAA's amendment to paragraph "f' 

### of the Notice of Proposed Civil Penalty (in which the FAA alleged that the Respondent was obligated to include absorbent materials in its package) warrants dismissal of the complaint becausethe amendment occurredmorethantwo years aftertheincidentoccurred. TheNotice ofProposed Civil Penalty, paragraph "f," served onJuly 3, 2013, alleges:

5 14 C.F.R.**~** 208(d) states: Instead offiling an answer to the complaint, a respondent may move to dismiss the complaint, or that part ofthe complaint, alleging a violation that occurred on or after August 2, 1990, and more than 2 years before an agency attorney issued a notice ofproposed civil penalty to the respondent. (1) An administrative lawjudge may not grant the motion and dismiss the complaint or part ofthe complaint ifthe administrative law judge finds that the agencyhas shown good cause for any delay in issuing the notice ofproposed civil penalty. (2) If the agency fails to show good cause for any delay, an administrative lawjudge may dismiss the complaint, or that part ofthe complaint, alleging a viola6on that oCcmTed more than 2 years before an agency attomey issued the notice ofproposed civil penalty to the respondent 6 The Respondent alternatively argues that the complaint's reference to "absorbent materials" should be dismissed shouldthe Court denythe Respondent's motion to dismiss the complaint, inits entirety, under 14 C.F.R. § 208(d). 4

### By reason of the above, Fisher violated the following Department of Transportation Hazardous Materials Regulations (Title 49 ofthe Code ofFederal Regulations): f. 

### Section 173.27(e) in that Fisher offered a package containing hazardous liquids inPacking Group I or II ofClass 3, 4, 5, 6, or 8, in glass, earthenware, plastic or metal inner packages and failed to use a means of containing the liquid in the form of leakproof liner, plastic bag, or other equally efficient means of containmentinthe event ofleakage. (Exhibit 1). The Notice ofProposed Civil Penalty was served on the Respondent within two years of the incident giving rise to the violation. As a result, the Notice of Proposed Civil penalty was timely issued pursuant to 14 C.P.R. § 

### 208(d). The Amended Notice ofProposed Civil Penalty/paragraph 

### "f", servedonJuly 24, 2014, alleges: By reason of the above, Fisher violated the following Department of Transportation Hazardous Materials Regulations (Title 49 ofthe Code ofFederal Regulations): f. Section 173.27(e) in that Fisher failed to ensure that except as otherwise provided in this subchapter, a package containing liquids hazardous materials in Class 3, 4, or 8, or Division 5.1, 5.2 or 6.1 that are packaged and offered for transport in glass, earthenware, plastic ormetal innerpackages are packaged with absorbent materials as follows:
... (2) Packing Group 1liquids on cargo aircraft, and Packing Group II liquids including Division 5.2 liquids on passenger and cargo aircraft, must be packaged using a sufficient quantity ofabsorbent material to absorb the entire contents ofany one ofthe inner packagings containing such liquids. When the innerpackagings are ofdifferent sizes and quantities, sufficient absorbent material must be used to absorb the entire contents of the inner packaging with greatest volume of liquid. (3) When absorbent materials are required and the outer packaging is not liquid tight, a means of containing the liquid in the event ofleakage must be provided in the form ofa leakproofliner, plasticbag orotherequallyefficientmeans ofcontainment.
Exhibit 2). Although the amendment to paragraph "f" 

### was made more than two years after the incident occurred, the amendment is proper because it relates back to the time the Notice of Proposed Civil Penalty was issued. The "relationback doctrine" enables aplaintiffto add a new claim after the statutory period has expired, if the original notice sufficiently notifies the

7TheFAA subsequentlyfiled the AmendedNotice ofProposed Civil Penalty as the complaint. 5

### respondent ofthe charges. In the Matter of: Mississippi Air Express, LLC, Docket No. FAA2014-0866 *1, *9 (July 22, 2015). Where an amendment asserts a claim which arose from the
occurrences alleged in the original complaint, itrelates back to the date ofthe original pleading. FAA v. Beni, FAA Docket No. CP95SOOI38 (June 25, 1996). Because the amended claim in the instant case arises from the original set of facts alleged in the Notice of Proposed Civil Penalty, neither the amendment, nor the complaint, is subject to dismissal under 14 C.F.R. § 

### 208(d).Based on the foregoing, the Respondent's argument that the Agency's amendment to paragraph "f' 

### ofthe Notice ofProposed Civil Penalty is untimelyis withoutmerit and due to be denied.
III. Conclusion WHEREFORE, based on the foregoing, the Respondent's motion to dismiss the complaint for insufficiencyunder 14 C.P.R. § 

### 13.218(±)(1) and for untimeliness under 14 C.P.R. § 

### 208(d) are without merit and due to be denied. As a result, the FAA requests that the Court denytheRespondent's June 23, 2015, motionto dismiss.



# R'VJ~(J:::""'L



# d"yof____,b'-+----"-7/'--J...:..__~, 2015.
WilliamVines General Attorney Office oftheRegional Counsel

6CERTIFICATE OF SERVICE I hereby certify that the foregoing FAA's Motion for Extension to File a Response was sent to the following viacertifiedmail: FederalAviationAdministration 800 Independence Avenue, S.W. Washington, D.C. 20591 Attention: HearingDocket Clerk, AGC-430 WilburWrightBuilding- Suite2Wl000 The HonorableRichard C. Goodwin AdministrativeLawJudge OfficeofHearings, M-20 U.S. DepartmentofTransportation 1200NewJerseyAvenue, S.E. (Ell-310) Washington, DC 20590 Facsimile: (202) 366-7536 JerryW. Cox, Esq. Potomac StrategyAssociates 2729 Gallows Rd., Suite401 Vienna, VA22180



### 1 

## AUG 

# -.z 2015] Dated

7U.S. Department ofTransportation Southern Region Office of the Regional Counsel P. 0. Box 20636 Atlanta, Georgia 30320 Federal Aviation Administration (404) 305-5200 (404) 305-5223 FAX 

### JUL 3 2013 CERTIFIED MAIL- RETURN RECEIPT REQUESTED REGULAR MAIL 2011S0700457 President Fisher Scientific Company, L.L.C. 6722 Bickmore Avenue Chino, CA 91708
NOTICE OF PROPOSED CIVIL PENALTY
Based on a report ofinvestigation, including the letterofJames W. Patterson, Esq
.. dated August 12,2011, it appears that: 1.

2.

3.
4.
5.

6.

7. On or about July 20, 2011, Fisher Scientillc Company, L.L.C, ("Fisher") knowingly o!Tered to United Parcel Service (UPS) a one piece shipment consisting of a spccit!cation tlberboard box containing hazardous materials for transportation by air. The above-mentioned shipment, assigned UPS tracking number/air waybill number 1Z9V34911325638264, was offered by Fisher for next day air transportation to the consignee, Genova Diagnostics, 63 Zillicoa Street, Asheville, NC 28801. On or about July 21, 2011, ground handling personnel at the UPS sort facility discovered the above-mentioned shipment leaking. The above-mentioned specitlcation tlberboarcl box contained a one (1) liter plastic bottle ofsodium hydroxide solution, Class 8, UN 1824. Further investigation showed that approximately 2 ounces had leaked into and through the tlberboard container. Fisher alTered the above-described shipment for transportation by air when it failed to ensure friction type closures were securely, tightly and effectively held in placeby positive means. Fisher offered the above shipment ofhazardous material for transportation by air and failed to usc a means ofcontaining the liquid in the fom1 ofa leakproofliner, plastic bag or otherequally efficient means ofcontainment. 

### Government 

### Exhibit8. Fisher offered the shipment of hazardous materials for transportation by air and failed to package it so there would be no identifiable release ofhazardous material to the environment. 9. Fisher offered the shipment ofhazardous materials for transportation by air and failed to ensure the closure was secure and leakproof. 10. Fisher offered the shipment of hazardous materials for transportation by air and failed to pack, secure, and cushion the package to prevent breakage or leakage. By reason ofthe above, Fisher violated the following Department ofTransportation Hazardous Materials Regulations (Title 49 ofthe Code ofFederal Regulations):
a. Section 171.2(a) in that Fisher offered a hazardous material for transportation in commerce when the hazardous material was not properly classed, described, packaged, marked, labeled. and in condition for shipment as required or authorized by applicable requirements ofthis subchapter. b. Section 173.24a(a)(3) in that Fisherfailed to ensure that inner packagings ofcombination packagings were sufficiently packed, secured, and cushioned to prevent their breakage or leakage and to control their shifting within the outerpackaging under conditions normally incident to transportation.
c. Section 173.24(b)(l) in that Fisher failed to use a package which was designed, constructed, maintained, filled, its contents so limited, and dosed, so that under conditions normally incident to transportation, there would be no identifiable release of hazardous material to the environment. d. Section 173.24([)(1) in that Fisher failed to use apackage which had closures so designed and closed that under conditions (including the effects of temperature and vibration) normally incident to transportation, there would be no identifiable release of hazardous materials to the environment from the opening to which the closure was applied and the closure was secure and leakproof.
e. Section 173.27(d) in that Fisher failed to ensure stoppers, corks or other such frictiontype closures were held securely, tightly and effectively in place by positive means, and that each screw-type closure on any packaging was secured to prevent closure from loosening due to vibration or substantial change in temperature.· f. Section 173.27(e) in that Fisher offered a package containing hazardous liquids in Packing Group Ior !I ofClass 3, 4, 5, 6, or 8, in glass, earthenware, plastic or metal inner packagings and failed to use a means ofcontaining the liquid in the form ofleakproof liner, plastic bag, or other equally ef1icient means ofcontainment in the event ofleakage.

2In accordance with Section 5123(a) ofTitle 49 ofthe United States Code (Transportation) (49 U.S.C. § 5123(a)), Fisher is liable for a civil penalty not lower than $250, nor greater than $27.500 for each violation of the Department of Transportation Hazardous Materials Regulations. After reviewing our investigative file, we propose to assess a civil penalty in the amount of$6,500 for these violations. Enclosed is infi.mnation on Fisher's options in responding to this Notice. The options include pariicipating in an inti.mnal conference with an FAA attorney. and submission ofinformation to the FAA for consideration. Fisher must submit, in writing, its choice of the altematives explained on the enclosed information forn1, on or before 30 days atler Fisher receives this Notice. If Fisher fails to submit its choice within that time, Fisher will have no further right to participatein the inli.mnal procedures.

RANDY E.



### H~'AN



### ACII~q**~** I NAL COUNSEL BY: 

# 'W ____. WILLIAM VINES Attorney Oftlce ofthe Regional Counsel Enclosures: Information Sheet Reply Form FAR 13.16 and Subpart G ofPm113

3CERTIFICATE OF SERVICE
I hereby certifythatthe foregoingNotice ofProposed Civil Penaltyhas been sent by ceiiitled mail and regularmail to: President Fisher Scientific Company. L.L.C. 6722 Bickmore Avenue Chino. CA 91708 James W. Patterson. Esq. Reger, Rizzo, & Damall. LLP Cira Centre. 13'h Floor 2929 Arch Street Philadelphia, P A 19104-2899



# ~f)) 

# e Donna E. Stanley Legal Assistant
Date

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**~** 'Southern Region U.S. Department ofTransportation Office ofthe Regional Counsel Federal Aviation Administration



# mw l24 201 CERTifiED MAIL -RETURNRECEIPTREQUESTED REGULAR MAIL President Fisher Scientific Company, L.L.C. 6722 Bickmore Avenue Chino, CA 91708 P. 

### o. Box 20636 Atlanta, Gecrgia 30320 (404) 305-5200 (404) 305-5223 FAX

2011 S0700457

AMENDED NOTICE OF PROPOSED CIVIL PENALTY TheNotice ofProposed Civil Penalty issued onJuly 3, 2014 is hereby amended as follows: Based on a report ofinvestigation, including the letter ofJames W. Patterson, Esq., dated August 12, 2011, it appears that: 1. On or about July 20, 2011, Fisher Scientific Company, L.L.C, ("Fisher") knowingly offered to United Parcel Service (UPS) a one piece shipment consisting of a specification fiberboard box containing hazardous materials for transportation by air. 2. The above-mentioned shipment, assigned UPS tracking number/air waybill number 1Z9V34911325638264, was offered by Fisher for next day air transportation to the consignee, Genova Diagnostics, 63 Zillicoa Street, Asheville, NC 28801. 3. On or about July 21, 2011, ground handling personnel at the UPS sort facility discovered the above-mentioned shipment leaking. 4. The above-mentioned specification fiberboard box contained a one !-liter plastic bottle (with friction or screw-type cap) of "Acros Sodium Hydroxide IN Standard Solution". 5. (a) "Acros Sodium Hydroxide IN Standard Solution" is classified as a hazardous material under the Department of Transportation Hazardous Materials Regulations (HMR) (49 C.F.R. 

### § 172.101). (b) The proper shipping name ofthe material is sodium hydroxide solution. It is in Hazard Class 8 (Corrosive Liquid), Packing Group II, and has an assigned identification number ofUNI824. 6. Further investigation showed that approximately 2 ounces of the material had leaked into andthrough the fiberboard container. above-described 

### Government 

### Exhibit7. Fisher offered the above-described shipment for transportation by air when it failed to ensure friction type closures were securely, tightly and effectively held in place by positive means, and/or failed to ensure that each screw-type closure on any packaging was secured to prevent closure from loosening due to vibration or substantial change in temperature. 8. Fisher offered the above shipment ofhazardous material for transportation by air and failed to use a means ofcontaining the liquid in the form ofa leakproofliner, plastic bag orother equally efficient means ofcontainment. 9. Fisher offered the shipment ofhazardous materials for transportation by air and failed to package it so there would be no identifiable release ofhazardous material to the environment. I0. Fisher offered the shipment ofhazardous materials for transportation by air and failed to ensure the closure was secure and leakproof. 11. Fisher offered the shipment ofhazardous materials for transportation by air and failed to pack, secure, and cushion the inner package to prevent breakage or leakage. By reason ofthe above, Fisher violated the following Department ofTransportation Hazardous Materials Regulations (Title 49 ofthe Code ofFederal Regulations):
a. Section 171.2(a) in that Fisher offered a hazardous material for transportation in commerce when the hazardous material was not properly classed, described, packaged, marked, labeled, and in condition for shipment as required or authorized by applicable requirements ofthis subchapter. b. Section 173.24a(a)(3) in that Fisher failed to ensure that inner packagings ofcombination packagings were sufficiently packed, secured, and cushioned to prevent their breakage or leakage and to control their shifting within the outer packaging underconditions normally incident to transportation.
c. Section 173.24(b)(l) in that Fisher failed to use a package which was designed, constructed, 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. d. Section 173.24(f)(l) in thatFisher failed to use apackage which had closures so designed and closed that under conditions (including the effects of temperature and vibration) normally incident to transportation, (i) there would be no identifiable release of hazardous materials to the environment from the opening to which the closure was applied, and (ii) the closure would be secure and leakproof.

2e. Section 173.27(d) in, that Fisher failed to ensure that stoppers, corks or other such friction-type closures must be held securely, tightly and effectively in place by positive means. Each screw-type closure on any packaging must be secured to prevent closure from loosening due to vibration or substantial change in temperature. f. Section 173.27(e) in that Fisher failed to ensure that except as otherwise provided in this subchapter, a package containing liquids hazardous materials in Class 3, 4, or 8, or Division 5.1, 5.2 or 6.1 that are packaged and offered for transport in glass, earthenware, plastic, or metal innerpackagings are packaged with absorbent materials as follows:. (2) Packing Group I liquids on cargo aircraft, and Packing Group II liquids including Division 5.2 liquids on passenger and cargo aircraft , must be packaged using a sufficient quantity of absorbent material to absorb the entire contents ofany one ofthe inner packagings containing such liquids. When the inner.packagings are ofdifferent sizes and quantities, sufficient absorbent material must be used to absorb the entire contents ofthe inner packaging with the greatest volume ofliquid. (3)When absorbent materials are required and the outer packaging is not liquid tight, a means ofcontaining the liquid in the event ofa leakage must be provided in the form ofa leakproofliner, plastic bag or other equally efficient means ofcontainment
In accordance with Section 5123(a) ofTitle 49 ofthe United States Code (Transportation) (49 U.S.C. 

### § 5123(a)), Fisher is liable for a civil penalty not lower than $250, nor greater than $27,500 for each violation of the Department of Transportation Hazardous Materials Regulations. After reviewing our investigative file, we propose to assess a civil penalty in the amount of$6,500 for these violations. Enclosed is inforn1ation on Fisher's options in responding to this Notice. The options include participating in an informal conference with an FAA attorney, and submission ofinformation to the FAA for consideration. Fisher must submit, in V.'fiting, its choice of the alternatives explained on the enclosed information form, on or before 30 days after Fisher receives this Notice. IfFisher fails to submit its choice within that time, Fisher will have no further right to participate in the informal procedures. RANDY HYMAN ACTlN'G

### I[E~I~NAL COUNSEL BY 

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