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e 

U.S. Ospartment 

of Transportation 

Federal Aviation 

Administralion 

Southwest Region 

Arkansas. Louisiana, 

New Mexico, Oklafioma 

Texas 

May 20, 2010 

Via Federal Express Priority Overnif^ht 

Office of Regional Counsel 

2601 Meacham Boijlevard 

Fort Worth, TX 713137^298 

($17) 222-6099 

(817)222-5a43y5092FAX 

Hearing Docket 

i^'ederal Aviation Administration 

000 Independence Avenue, SW 

Wilbur Wright Building- Suite 2W1000 

Washington DC 20591 

Attention: Hearing Docket Clerk, AGC-43 0 

Re: In the Matter of" Federal Kxprcss Corporation 

FAA Case No. 200{>SW700276 

aP/c6W^7Z507 / ^ ^ ^/o-dSas 

Enclosed you will tind a copy of the Federal Express Corporation request for a hearing received by 

the agency on May 10, 2010, and the original and one copy of the FAA's Complaint in the abovereferenced proceeding. The FAA requests that the hearing in this matter be held in the Tyler, Texas, 

aica, as that is ^vhere the events that gave rise to the violation occurred ajid where the witnesses arc 

located. We anticipate that the hearing will last one day. 

Please address all communications with the FAA to the undei"signed agency attorney, at: 

Kedera.1 Aviation Admini.stration 

Southwest Region, ASW-7G5 

Office of Regional Counsel 

2601 Mcacham Boulevard 

Fort Worth, Texas 76137-4298 

LYNhiTTH WORD 

Regional Counsel 

Southwest i^egion 

lion 

Attorney 

8l7<222-5089 

ill: Cllyn.Ponton@faa.gov 

Kndosure; Federal Express Corporation Request for Hearing 

FAA Complaint - original and one copy 

cc: Courtney E. Felts, Esq. - with copy of Complaint 

Federal Express Corporation 
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Staff Attorney, Regulatory Atfairs 

Legal Department 

3620 Hacks Cross Road 

Building 13, 3"^ Floor 

Mempliis,TN 38125 
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^ 

3C70 Hacks Crcn; Hoad 

Budding ti. 'MCI H(Xi< 

MomphM.TN 38126 

Tcliiphonr. <I01A14 E6Q0 

Express 

VIA FEDEX 

May 4, 2010 

Hearing Docket 

Federal Aviation Administralion 

800 Independence Avenue S.W. 

Wilbur Wright Building - Suite 2W1000 

Washington, DC 20591 

Attention: 1 leaiing Docket Clerk, AGC-430 

RE: Request for Formal Uenring - FAA Case Number: 2009SW700276 

Dear Sir: 

In I'espon.se to the Final Notice oJ" Proposed Civil Penalty that was issued in FAA case number 

2009SW700276 and received by my office on May 3, 2010, Federal Express, in accordance with 

14 CFR 13.16(gX2)(ii), respectfully requests a hearing in this matter. 

A copy of this request is being sent to Ellyn Ponton, Attorney, Southwest Region, Federal 

Aviation Administration. 

All correspondence regarding this matter should be sent to my attention at 3620 Hacks Cross 

Road, 3rd Floor, Building B, Memphis, Tennessee 38125. 

ff there arc any questions, please call me at (901) 434-8632 or email ccfelts@fcdcx-coinVery truly yours, 

FEDERAL EXPRESS CORPORATION 

W f c ^\^QM S' 

Courtney E. Felti 

Senior Attorney 

Regulatory Affairs 

(901) 434-8632 

(901) 434-8283 (f) 

C(.;iV77(>«w 

!:il;,0IAc:WR;;':OTjLMSia£i 
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U.S. DEPARTMENT OF TRANSPORTATION 

FEDEFtAL AVIATION ADMINISTRATION 

In the Matter of: ) 

) FAA DOCKET Not Assigned 

Federal Express Corporation ) FAA Case No. 2009SW700276 

) 

JUDGE NOT ASSIGNED 

COMPLAINT 

Thu Federal Aviation Administration (FAA), by counsel, files its Complaint pursuant to Ride 

208 of the Rules of Pi-actice in KAA Civil Penalty Actions (14 C.F.R. § 13.208 (a-c)), and states the 

following: 

1. Case Status 

On April 29, 2010, Respondent Federal Express Coi-poration was advised through a Final 

Notice of Proposed Civil Penalty that the FAA proposed to asse.ss a civil penalty in the amount of 

$28,125.00. On May 10, 2010, the FAA received a copy of Respondent's written request for a 

hearing. 

11. Facts Alleged 

1. On or abont July 9, 2009, Federal Express Coiporation dba FedEx Express (FedEx), a 

Federal Air Regulations Part 121 air carrier [14 C.F.R. §§ 121.1 et. .sec/] which transports 

hazardous materials aboard aircraft, knowingly improperly accepted a one-piece .shipment from 

Judith A. Osbom that contained hazardous materials under FedEx Express 2Day Air 

Waybill/Tracking Number 8692 32682116 for transportation by air in commerce to the consignee, 

Anthony Hm'tt, Sweet Springs, MO. 

2. The above-referenced shipment contained, in part, one 12-volt '1nter.state Marine/RV Deep 

Cycle Battery." Lead acid batteries arc regulated under the Department of Transportation Hazardous 

Maierial.s RegtJlations. 

3, The non-specification fibcrboard box containing the above-referenced shipment did not 

exhibit any identification markings or labels to indicate the presence of the battery inside Ihe box. 

4, At all times mentioned herein, the above-referenced shipment was not accompanied by a 

Shipper's Certification or Declaration of Oangerous Goods. 
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5. At all times mentioned herein, the above-referenced shipment was not accompanied by 

.shipping papers that de.s;cribed the hazardous materials and provided emergency response 

infonnaiion, including a 24-houT emergency response telephone number. 

6. Ms. Osbom declared to FedEx employee K. Kortol that the open package contained a 

"battery." Ms. Kortol failed to pursue inlbnnation concerning the contents of the package in order 

to determine whether hazardous materials were being improperly offered. 

7. FedHx accepted the above-referenced shipment, and on July 9-10, 2009, transported the 

shipment from Tyler TX to Alliance AiTj-tort (AFW), Fort Worth, TX. 

8. The above-referenced shipment was pulled from tran.sportation when FedEx personnel at the 

AFW cargo facility discovered that the package was leaking battery acid during the sort process. 

Battery acid had leaked out of the battery and destroyed the integrity of the outer packaging. 

9. FedEx improperly accepted and transported a hazardous material when it had knowledge 

that the package contained a hazardous material which had not been packaged, marked, labeled, and 

described on a shipping paper as required by the HMR. 

10. Electric storage batteries containing batteiy eleetrolyle (acid) are a regulated hazardous 

material under the Department of Transportation Hazardous Materials Regulations (HMR) 

Hazardous Materials Table [49 C.F.R. §§ 172.101 ]. The proper .shipping name is Battery, wet, 

filled with acid. This hazardous material is in Hazard Cla.ss 8 (Corrosive), and it has an assigned 

identificanon number of UN2794 and Packing Group 111 (PGll pciformanec standards when offered 

for air shipment). The proper label is "CORROSFVE." 

III. Citations 

By reason of the above facts and circum.stances Federal Express Corporation knowingly 

violated the followmg Department of Transportation Hazardous Materials Regulations (II MR): 

1. Section 175.3 [49 C.F.R. § 175.3J, by accepting for tran.sportation and tiansporting aboard 

an aircraft a hazardous material that is not prepared for shipment in accordance with this 

subchapter. 

2. Section 175,30(a) [49 C.F.R. § 175.30(a)J, by accepting a hazardous material for 

tran.sportation aboard an aircraft without cnsLiring the hazardous material is described and certilled 

on a .shipping papei" prepared in duplicate in accordance with part 172 of this subchapter and is 

marked and labeled m accordance with subparts D and E of part 172. 
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IV. Proposed Civil l*cnalry 

1. In accordance with Section 5123(a) of Title 49 of the United States Code (Transportation) 

[49 U.S.C. § 5123(a)J, Federal F.xpress Corporation is liable for a civil penalty of not less than 

.S250 [$450 for training violations], nor greater than S50,000 [."SI 00,000 if death, serious illness, 

seveie injury, or substantial property damage results] for each violation of 49 U.S.C § 5101 et seq., 

the Federal hazardous materials transportation law, or any regulation prescribed under this statute in 

the Department of Transportation Hazardous Materials Regulations [49 C.F.R. Part 171 et seq\ 

2. Under the facts and circumstances of this case, a civil penalty of $28,125.00 is reasonable 

and appropriate. 

V. Conclusion 

WHRREFORE, the FAA, by counsel, re.spectfully requests that the Administrative Law 

Judge enter an Order that Respondent be assessed a civil penally in the amount of $28,125.00. 

Respectfully submitted this 20"' day of May 2010. 

LYNETTE WORD 

Regional Counsel 

Federal Aviation Administralion 

Southwest Region 

2601 Meacham Houlevard 

Fort Worth, Tex 

^nton 

Attorney 

-5089 

-5092 Fax 

b-inail: Ellyn .Ponton(^)faa.gov 

NOTE TO RESPONDENT: 

Pursuant to § 13.209 of the Rules of Practice for FAA Civil Penalty Actions (14 C.F.R. § 13.209). 

Respondent shall file a written answer to the complaint, not later than 30 days after service of the 

complaint. The answer must be dated and signed and may he typewritten or legibly handwritten. A 

Respondent filing an answer .shall personally deliver or mail the original and one cojiy of the 

answer for filing with the Hearing Docket Clerk, AGC-430, at the following addresses: 
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-1 

IF YOU ARE FILING A DOCUMENT VIA PERSONAL DELIVERY OR EXPEDITED COURIER 

(i.e., FedEx or other delivery service): 

Hearing Docket 

Federal Aviation Administration 

600 Independence Avenue, SW 

Wilbur Wright Building Suite 2W1000 

Washington DC 20591 

Attention: Hearing Docket Clerk, AGC-430 

IF Y'OU ARE FILING A DOCUMENT VIA U.S. MAIL: 

Hearing Docket 

Federal Aviati(.)n Administration 

800 Independence Avenue, SW 

Wilbur Wright Building - Suite 2W1000 

Wa.shington DC 20591 

Atleniion: 1 learing Docket Clerk, AGC-430 

The Re.spondcnt tiling an answer should suggest a location for the hearing when fihng the answer 

and shall serve a copy of the answer on the agency attorney who filed the complaint. 

A Respondent filing an answer shall admit, deny, or state that it is wltliout sufficient knowledge or 

information to admit or deny, each numbered paragraph of the complaint, A general denial of the 

complaint is deemed a faikire to tile an answer. Failure to file an answer without good cause shall he 

deemed an admission of the truth ofeach allegation contained in the complaint. 
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CERIIFICATE OF SERVICE 

I hereby certify that the original and one copy of the foregoing Complaint for FAA Case No, 

20f)9S W700276 was filed by Federal Express Prioriiy Overnight Tracking No. 

7935 6L09 4451 with the Hearing Docket Clerk, AGC-430, at; 

Hearing Docket 

Federal Aviation Administration Telephone: 202-385-8229 or 8230 

600 Independence Avenue, SW 

Wilbur Wright Building - Suite 2W1000 

Washington DC 20591 

Attention: Hearing Docket Clerk, AGC-430 

I hereby also certify that a copy of the foregoing Complaint for FAA Case No. 2009SW700276 has 

been served this date by certified mail, return receipt requested, receipt no. 

7003 0500 0004 9786 7187 , to Respondent: 

Courtney B. Felts, Esq. 

Federal Express Corporation 

Staff Attorney, Regulator^' Affairs 

Legal Department 

3620 Hacks Cross Road 

Building B, 3"^ Floor 

Memphis, TN 38125 

^/J&jPtL^^ _^S^h^oy^ 

Mai-qvifta Robinson l^'^te 

Paralegal Specialist