•;£F:^TMENT OF . 

UNITED STATES DEPARTMENT OFTRANSPORTAT!ON'f^'^§f^0P^kA^^^^ 

OFFICE OF HEARINGS .A^;J,<Li 'JuHAiiUl.. 

WASHINGTON, D.C. m ., r^ i i.ft 

/Oil SEP i ^ P •• - ^ 

' IN THE MATTER OF 

TGI FREIGHT 

•AA DOCKET NO. CP10NM00I2 

{Civil Penally Proceeding) 

DMSNO. FAA-2010-1079 

'DECEIVED 

SEP l a 2011 

HEAR/NG DOCKET 

COMPLAINANT'S OPPOSITION TO TGI FREIGHT'S MOTION IN LIMINE RE: 

PRIOR INVESTIGATIONS 

The Federal Aviation Administration (hereinafter "FAA"), by and through its Regional 

Counsel, opposes TGI Freight's (hereinafter "TGI") motion to preclude the FAA from presenting 

any evidence al the hearing of 1) any prior investigations conducted by the FAA of TGI; 2) any 

shipments made by TGI before February 19, 2010, thai Ihe FAA alleges to have not been 

handled properly; and 3) any alleged violations of federal regulations by TGI prior to 

February 19, 2010. Specifically. TGI asserts that such information is not relevant to these 

proceedings, that bringing it.up would be more prejudicial than probative, and that such 

information would violate Federal R. Evid. 404(b). 
On March 31. 2006. the FAA issued TGI a Warning Notice' for an incident wherein TGI 

improperly offered a shipment containing hazmat to Northern Air Cargo. To ask your Honor to 

determine whether this information will be relevant is premature at this point. It may depend on 

what type of defenses TGI raises. It might go to what TGI should have been expected to have 

known about the proper shipment of hazmat—all things that are in fact relevant to this case. 

Should the FAA find the information to be relevant to its case, the FAA will make an 

offer to enter the March 31, 2006 Warning Notice into evidence and/or elicit the testimony of 

appropriate witnesses. TGI can raise any objections that it has at that time. Given that TGI's 

Motion can be renewed at the time of hearing, the FAA respectfully requests that TGI's Motion 

In Limine Re: Prior Investigations be denied at this time. 

Respectfully requested this 12'^ day of September 2011. 

HOWARD L. MARTIN, JR 

Regional Counsel 

By: •---Vl:T>^V'LV^^^^-^::> 

Cheryl M.'jones 

Senior Attorney 

' Exhibit A. This is Ihe only investigation conducted by the FAA of TGI or shipment made by TGI before 

February 19. 2010 that the FAA alleges that TGI did not handle properly. In this earlier case the manufacturer 

clearly marked the two bo.xes with warning labels, which stated, "'contents not approved for air shipment". TGI 

covered the labels and offered the two packages for shipment. However, based upon mitigating facts collected 

during the investigation, the FAA concluded that legal action was not warranted and closed the case with a warning 

notice. 

In the Matter of TGI Freight 

Docket No. CP10NM00I2 

Page 2 of3 
Q 

U.S. Dcpaitment 

of Transportation 

Federal Aviation. 

Administration 

Northwest Mountain Region 

Colorado. lOi'iho. Mcntana. Oregon 

Uiah. Wjshington. Wyoming 6 Alaska 

CTLRTinilD MAI L - RETURN REClilFT RCQUIIS fl-I) 

rCjl Freight > 

.Ann. Todd Clark 

I'D Box 221049 

Anchoniec. AK ^)9522 

P/^f^ -^,7 

SECURITY & HAZARDOUS MATERIALS DIVISION 

Alaska Branch O'fice 

222 West 7""."Avenue, Bon jSi4 

Anchorage, AK 99513-^37 

Tel: 1907J 271-55 

Fa-: (9071 271-19 iECeiVED 

SEP I d 201! 

HEAR/IVG DOCKET 

Dear Mr. Clark: 

' Warning Noticf 

I'ileNo: 20d6AL7000jO 

The rccieial Aviation .Adniinistraiion fF.AA) has compleicd an investigation into an incident 

that occurred on February 13. 2006. wlien two hazardous niatcrials shipments containing 

llEE'i' i t iSO-l-IEE'r that you offered lo Northern .Air Cargo, in Anchorage, AK was found lo 

be noi auihori'/.ed tor air transporlanon. 

il is a violaiion of the United .States Code of Federal Rcgukuioi\s Title 49 (CFR 49). Part 

1 71.2(e). wliich states that no person may offer a hazardous material for air tiansportaiion, 

unless that materia! is properly classed, described, marked, labeled and packaged for 

shipment. In this case the manufacturer clearly marked each bo.\ with the warning "contents 

not approved for air shipment". Discussions with the manufacturer verilied that the inner 

packaging had never been test as required under CFR 49 Part I 73.27. Vou covered this 

warning on the bo.xes and shipped thejii as consiiiner commodities. ORM-D-.AIR. 

Based on the tacis collected during this investigation, il appears thai you did. in fact, violate 

this regulation. However, the facts also disclosed that your actions were apparently 

unintentional, you misunderstood a manufacturer's represeiUaLive and thought that what you 

were doing wa^ OK, and you have no other violations of a similar nature. Given these 

considerations, we have concluded that legal action is not warranted. In lieu of such action, 

we are issuing (his letter which will be made a matter of record. No fuither aclion is being 

considered. lio\\e\er we expect future compliance with the regulations, and any future 

violaiion would be a serious matter, and may necessitate a se\'ere sanction. 

Sincerely.^ 

^ 

, W .-Vutlrew li. SlrabaUi? 

Manager. Denver/Sali Lake/.Anchorage 

ScCLiiitv and Hazardous Materials Branch 

£^xkb:^- fi 
CERTIFICATE OF SERVICE 

Re: TGI Freight 

FAA Docket No. CP10NM0012; 

DMS No. FAA-2010-1079 

I hereby certify that on this date I have served a copy of the COMPLAINANT'S 

OPPOSITION TO TGI FREIGHT'S MOTION IN LIMINE RE: PRIOR 

INVESTIGATIONS by U.S. Mail and facsimile to the following: 

Original and 1 Copy 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington. D.C. 20591 

Attn: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building-Suite 2W1000 

One Copy 

Rebecca J. Hozubin, Esq. 

WILKERSONHOZUBIN 

3lOKStreel, Ste. 405 

Anchorage, AK 99501 

FAX: (907)276-5291 

The Honorable Richard C. Goodwin 

Office of Hearings. M-20 

U.S. Department of Transportation 

East Building Ground Floor, Room El2-320 

1200 New Jersey Avenue. S.E. 

Washington, D.C. 20590 

Fax: 202-366-7536 

DATED: .Jy^ ' /o ? ^^/ / 

r^iTlc^j. ^ t^iU ^ 

Federal Aviation Administration 

Office of Regional Counsel 

222 West 7lh Avenue, Box 14. AAL-7 

Anchorage, Alaska 99513-7587 

In the Matter of TGI Freight 

DocketNo. CPI0NMOOI2 

Pa"e 3 of3