U.S. Department ofTransportation Federal Aviation Administration


## JM 28 2015 Southern Region Office of the Regional Counsel

CERTIFIED- RETURN RECEIPT REQUESTED Hearing Docket Clerk FAA, AGC-430, Suite 2W1000 Wilbur Wright Building 800 Independence Avenue, SW Washington, DC 20591 P.O. Box 20636 Atlanta, Georgia 30320 (404) 305-5200 ( 404) 305-5223 FAX 

# RECEIVED FEB 022015 HEARING DOCKET



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Re: In the Matter ofPro Form Products Ltd. FAA CaseNo. 2012S0700264 Enclosedherewithplease fmd a copy ofa request for hearing and the original and one copy of the Complaintinthe above-referencedproceeding. The FAArequests that the hearinginthis matterbeheld in the Louisville, Kentucky area, and expects thatthehearingwill last two days. Please address all communications for the FAAto theundersigned, at: Federal Aviation Administration Office ofthe Regional Counsel, AS0-7 Southern Region 1701 ColumbiaAvenue College Park, GA 30337 Telephone: (404) 305-5200, facsimile (404) 305-5223. Sincerely,



# ~IJ~ ROBERT B. DIXON Attorney Office ofthe Regional Counsel
EnclosuresU.S. DEPARTMENT OF TRANSPORTATION OFFICE OFHEARINGS FEDERAL AVIATION ADMINISTRATION

FEDERAL AVIA TTON ADMINISTRATION, Complainant,
vs. Pro Form Products Ltd. Respondent.
JUDGENOTYET ASSIGNED FAADocketNo. Judge

COMPLAINT The Federal AviationAdministration (FAA), bycounsel, hereby files its Complaint, pursuant to Rule 208 oftheRules ofPractice (14 C.F.R. 13.208), and states as follows: I. I. OnJanuary 15,2015,Respondent, Pro Form Products Ltd. was advised through a Final Notice ofProposed Civil Penaltythatthe FAAproposedto assess a civil penaltyin the amount of$78,000. On January 27,2015, the AgencyAttorneyreceived awritten request for a hearing from the Respondent. II. I. Onor about June 11,2012,Pro Form Products Ltd. ("PFPL") knowingly offered to DHL a one-piece shipment containing hazardous materials for transportationby mr. 2. The above-mentioned shipmentwas assignedDHLtrackingnumber/air waybill number40 7849 5610 for Express Worldwide Air Service. 3. The shipment was offeredbyPFPL, 604 McGeachie Drive, Milton, Ontario Canada L9T3Y5, for transportation to the consignee, Distributors Warehouse, 1900 N. lOth Street, Paducah, KY 42001. 4. At all times mentioned herein, the above-mentioned shipment was not accompaniedbya Shipper's Certification or Declaration ofDangerous Goods.5. Onor aboutJune 12, 2012, the above-mentioned shipment was transported to the DHL sort facility in Louisville, Kentucky. 6. Onor aboutJune 12, 2012, ground-handlingpersonnel at the DHL sort facility discoveredthe above-mentioned shipment during an inspection. 7. The above-mentioned non-specification fiberboardbox contained two innernonspecification fiberboard boxes, each containing six !-quart metal containers of General Purpose Adhesive Cleaner.
8. a. General Purpose Adhesive Cleaner is classified as ahazardous material underthe Department ofTransportation Hazardous Materials Regulations (HMR) (49 C.P.R.§ 172.101). b. Theproper shippingname ofthe material is Flammable LiquidN.O.S. (Hydrogen chloride). Itis in Hazard Class 3, Packing Group II, and has an assigned identificationnumber ofUN1993. Theproper label is FLAMMABLE LIQUID. 9. PFPL offered the above-described shipment ofhazardous material for transportationby air without shippingpapers that included:
a. the assigned identificationnumberprescribed for each hazardous material; b. the proper shippingnameprescribed for eachhazardous material;
c. the hazard class prescribed for eachhazardous material; d. thepacking group prescribed for each hazardous material;
e. the total net mass perpackage ofeachhazardous material; and, f. the number andtype ofpackages containinghazardous material. 10. PFPL offered the above-described shipment ofhazardous material for transportationbyair and failed to:
a. certifythat the materials were in accordance with theHMR (49 C.P.R.§§ 171, et seq.) byprinting onthe shippingpapers the certification set forth in § 172.204(a)(l), 172.204(a)(2), or§ 172.204(c) oftheHMR; b. prepare therequired certifications in duplicate; and,
c. add to the certificationrequired inthis sectionthe following statement:

### "I declare that all ofthe applicable air transport requirements havebeen met. 11 

### 11. PFPL offered the above-described shipment ofhazardous materials for transportationbyair when:
a. the outer containerwas not marked withtheproper shipping name ofeach hazardous material contained therein; b. the outer containerwas not markedwiththe assigned identification number ofeach hazardous material containedtherein;
c. the outer containerwas not marked with standard orientation markings (as prescribed in 49 C.P.R. §

### 172.312(a)) on two opposite vertical sides ofthe package with the arrows pointing in the correctupright direction; and d. a "FLAMMABLE LIQUID" label was not affixed to the outer container. 12. PFPL offered the above-described shipment ofhazardous material for transportationby air and failed to make emergencyresponse information available for use at all times thehazardous material was present. 13. PFPL offeredthe above-described shipment ofhazardous material for transportationby air and failed to make an emergencyresponse telephone number immediately available to the appropriate official person designated to respond to an incident involving ahazardous material, orwho was conducting an investigation involving ahazardous material. 14. PFPL offered the above-described shipment ofclass 3materials for transportation by air and failed to use combinationpackagingthat met Packing Group II standards for liquids. 15. PFPL offeredthe above-described shipment ofliquidhazardous materials for transportationby air and failed to use an authorized combinationpackaging for its transportation.Ill. 16. Byreason ofthe above Pro Form Products Ltd. violatedthe following Department ofTransportation Hazardous Materials Regulations (Title 49 ofthe Code ofFederal Regulations):
a. Section 171.2(e) in that PFPL offered ortransported ahazardous 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, or an exemption, approval, or registration issued under this subchapter orunder subchapterA ofthis chapter. b. Sections 172.200(a) and 172.202(a)(1) in that PFPL offered a hazardous material for transportation and failed to describe the hazardous material on shipping papers including the identification number prescribed for the material as shown in Column 4 of the § 172.101 Table, in the manner required bythis subpart.
c. Sections 172.200(a) and 172.202(a)(2) inthat PFPL offered ahazardous material for transportation and failed to describe the hazardous material on shipping papers including the proper shipping name prescribed for the material as shown in Column2 ofthe§ 172.101 Table. d. Sections 172.200(a) and 172.202(a)(3) inthat PFPL offered ahazardous material for transportation and failed to describe thehazardous material on shippingpapers including the hazard class or division numberprescribed for the material as shown in Column 3 ofthe § 172.101 Table.
e. Sections 172.200(a) and !72.202(a)(4) in that PFPL offered ahazardous material for transportation and failed to describe thehazardous material on shipping papers including the packing group in Roman numerals, as designated for thehazardous material inColumn 5 ofthe § 172.101 Table. f. Sections 172.200(a) and 172.202(a)(6) in that PFPL offered a hazardous material for transportation by aircraft and failed to describe the hazardous material on shipping papers showing the total mass per package, unless a gross mass is indicated in Columns (9A) or (9B) ofthe§ 172.101 Table in which case the total gross mass per package must be shown; or, for Class 7materials, the quantity ofradioactivemustbe shownby activity. g. Sections 172.200(a) and 172.202(a)(7) in that PFPL offered a hazardous material for transportation and failed to describe the hazardous material on shippingpapers indicating the number and type ofpackages (for example, "12 drums").

### h. Sections 172.204(a) or (c)(!) in that PFPL offered ahazardous material for transportation and failed to certify that the material was offered for transportation in accordance with this subchapter by printing on the shipping paper containing the required shipping description one of the certifications set forth in this part.
1. 

### Section 172.204(c)(2) in that PFPL offered ahazardous material to an aircraft operator for transportation by air and failed to provide two copies ofthe certification required inthis section. J. 

### Section 172.204(c)(3) inthat PFPL offered for transportationbyair a hazardous material authorized for air transportation and failed to add to the certificationrequired inthis sectionthe following statement: "I declare that all ofthe applicable air transport requirements have been met." k. 

### Section 172.30l(a) inthat PFPL offered for transportation a hazardous material in a non-bulk packaging and failed to mark the package with the proper shipping name and identification number (preceded by "UN" 

### or "NA", 

### as appropriate) for the material as showninthe §

### 172.101 table. 

### 1. Sections 172.300(a) and 172.312(a)(2) in thatPFPL offered anon-bulk combinationpackage having innerpackagings containingliquid hazardous material for transportation and failed to legibly mark the outer package with package orientation markings that conform pictorially to ISO Standard 780-1895, on two opposite vertical sides ofthe package with the arrows pointingin the correct upright direction.
m. 

### Section 172.400(a) inthat PFPL offered for transportation a hazardous material in one of the packages or containment devices listed in this subpart and failed to label the package or containment device with the labels specified for the material inthe §

### 172.101 Table and inthis subpart.
n. Section 172.600(c)(!) inthat PFPL offered for transportation ahazardous material and failed to make the emergency response information conforming to this subpart immediately available for use at all times the hazardous material was present.
o. Section 172.600(c)(2) inthat PFPL offered for transportation ahazardous material and failed to make emergencyresponse information including the emergency response telephone number, immediately available to any govermnent agency responding to an incident involving hazardous materials or conducting an investigation which involves a hazardous material.

### p. Section 172.702(a) inthat PFPL offered ahazardous material for transportation and failed to ensure that each ofits hazmat employees was trained in accordance with therequirements prescribed inthis subpart. q. Section 173.202 in that PFPL offered for transportation apackage containing liquid hazardous material in Packing Group II when §172.101 of this subchapter specified that it be packaged under this section and failed to use non-bulk packagings prescribed in this section conforming to the general packaging requirements of subpart B of part 173, to the requirements ofpart 178 ofthis subchapter at the Packing Group I or II performance level (unless otherwise excepted), and to the requirements of the special provisions ofColumn 7 ofthe§172.101 Table. 17. Pursuantto 49 U.S.C. Section 5123(a),- is subject to a civil penaltynot lower than $250 ($450 for training-related violations), nor greaterthan $75,000 ($175,000 ifdeath, serious illness, severe injury, or substantial property damage results), for each violation ofthe Department ofTransportation Hazardous Materials Regulations. 18. Underthe facts and circumstances ofthis case, a civil penaltyof$78,000 is appropriate. WHEREFORE, the Agency, bycounsel respectfullyrequests that the Administrative Law Judge enter an orderthat Respondentbeassessed a civil penaltyinthe amount of$78,000. Respectfully submitted this



# e':i<6~ day ofJanuary, 2015.



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ROBERT B. DIXON Attorney

PLEASE NOTE: 

### Pursuantto Title 14 CPR Section 13.209(a), you are required to file a written answer to this Complaint, or a writtenMotionto Dismiss ifappropriate, not laterthan 30 days after the date shown onthe Certificate ofService which follows.CERTIFICATE OF SERVICE Ihereby certifythat a copy ofthe foregoing Complainthas beenmailed this datebyCertified Mail, Return ReceiptRequested, to the following: Hearing Docket Clerk FAA, AGC-430, Suite2Wl000 WilburWright Building 800 Independence Avenue, SW Washington, DC 20591 President Pro Form Products Ltd. 604 McGeachie Drive Milton, Ontario CanadaL9T3Y5 Stuart A. Laven, Jr. CavitchFamilo & Durkin Attorney at Law Twentieth Floor 1300 East Ninth Street Cleveland, Ohio 44114



# \B~T**p;T~L~KlOOA1** Legal Assistant 

### JAN 2

### g 2015 Dated (original 

### + I copy)

# CAVITCH FAMILO & DURKIN LegalProfessiOnalAssociation



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## * Board Certified Business BtmKmpt.cy American BoardofCertijtcation January 26, 2015 StuartA. Laven,Jr. Attorney atLaw slaven@cavitch.com Twentieth Floor 1300 East Ninth Street Cleveland, Ohio 44114 T 216.621.7860 F 216.621.3415 www.cavitch.com

FEDERAL EXPRESS \j 

### 2 7 Attention: Hearing Docket Clerk, AGC-430 Federal Aviation Administration 600 Independence Avenue SW, Wilbur Wright Building, Suite 2W1000 Washington, DC 20591 Re: FinalNotice ofProposed Civil Penalty for Pro FormProducts Ltd. Reference No. 2012S0700264 DearClerk: This firm represents Pro Form Products Ltd. ("PFPL"), a Canadian limited liability company. PFPL recently received a correspondence from the Federal AviationAdministration proposing to fine tbe company $78,000. OnbehalfofPFPL, a hearing is requested pursuantto 14 C.F.R. §13.16(g)(2)(ii). Please feel free to contactme ifyou have any questions abouttbese matters.

Copy: Robert B. Dixon Attorney Office ofthe Regional Counsel 1701 ColumbiaAvenue, Suite 530 College Park, Georgia 30337 Stuart A. Laven, Jr.U.S. Department ofTransportation Federal Aviation Administration



### ,'·''· ·: I 5 201S Southern Region Office ofthe Regional Counsel

REGISTERED MAIL- RETURN RECEIPT REQUESTED & REGULAR MAIL President P.O. Box 20636 Atlanta, Georgia 30320 (404) 305-5200 (404) 305-5223 FAX
20 12S0700264 

# RECEIVED Pro Form Products Ltd. 604 McGeachie Drive 

## FEB 0

## 22015 HEARING DOCKET FINAL NOTICE OF PROPOSED CIVIL PENALTY 

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# d Milton, Ontario Canada L9T3Y5

On September 30, 2013, Pro Form Products Ltd. was advised through a Notice ofProposed Civil Penaltythat the FAA proposed to assess a civil penalty in the amount of$78,000. As ofthis date we have received no response to this Notice. After considering all the evidence in this matter, it appears that: I. On or about June II, 2012, Pro Form Products Ltd. ("PFPL") knowingly offered to DHL a one-piece shipment containing hazardous materials for transportation by au. 2. The above-mentioned shipment was assigned DHL tracking number/air waybill number 40 7849 5610 for Express Worldwide Air Service. 3. The shipment was offered by PFPL, 604 McGcachic Drive, Milton, Ontario Canada L9T3Y5, for transportation to the consignee, Distributors Warehouse, 1900 N. lOth Street, Paducah, KY 42001. 4. At all times mentioned herein, the above-mentioned shipment was not accompanied by a Shipper's Certification or Declaration ofDangerous Goods. 5. On or about June 12, 2012, the above-mentioned shipment was transported to the DHL sort facility in Louisville, Kentucky. 6. On or about June 12, 2012, ground-handling personnel at the DHL sort facility discovered the above-mentioned shipment during an inspection. 7. The above-mentioned non-specification fiberboard box contained two inner nonspecification fiberboard boxes, each containing six !-quart metal containers of General Purpose Adhesive Cleaner.8. a. General Purpose Adhesive Cleaner is classified as a hazardous material under the Department ofTransportation Hazardous Materials Regulations (HMR) (49 C.F.R. § 172.101). b. The proper shipping name ofthe material is Flammable Liquid N.O.S. (Hydrogen chloride). It is in Hazard Class 3, Packing Group II, and has an assigned identification number ofUNI993. The proper label is FLAMMABLE LIQUID. 9. PFPL offered the above-described shipment ofhazardous material for transportation by air without shipping papers that included:
a. the assigned identification number prescribed for each hazardous material; b. the proper shipping name prescribed for each hazardous material;
c. the hazard class prescribed for each hazardous material; d. the packing group prescribed for each hazardousmaterial;
e. the total net mass per package ofeach hazardous material; and, f. the number and type ofpackages containing hazardous material. I0. PFPL offered the above-described shipment ofhazardous material for transportation by air and failed to:
a. certify that the materials were in accordance with the HMR (49 C.F.R. §§ I71, et seq.) byprinting on the shipping papers the certification set forth in § 172.204(a)(l), 172.204(a)(2), or § 172.204(c) ofthe HMR; b. prepare the required certifications in duplicate; and,
c. add to the certification required in this section the following statement: "! declare that all ofthe applicable air transport requirements have been met" 11. PFPL offered the above-described shipment ofhazardous materials for transportation by air when:

a. the outer container was not marked with the proper shipping name ofeach hazardous material contained therein;b. the outer container was not marked with the assigned identification number ofeach hazardous material contained therein;
c. the outer container was not marked with standard orientation markings (as prescribed in 49 C.F.R. §172.312(a)) on two opposite vertical sides ofthe package with the arrows pointing in the correct upright direction; and d. a "FLAMMABLE LIQUID" label was not affixed to the outer container. 12. PFPL offered the above-described shipment ofhazardous material for transportation by air and failed to make emergency response information available for usc at all times the hazardous material was present. 13. PFPL offered the above-described shipment ofhazardous material for transportation by air and failed to make an emergencyresponsetelephone number immediately available to the appropriate official person designated to respond to an incident involving a hazardous material, orwho was conducting an investigation involving a hazardous material. 14. PFPL offered the above-described shipment ofclass 3 materials for transportation by air and failed to use combination packaging that met Packing Group II standards for liquids. 15. PFPL offered the above-described shipment ofliquid hazardous materials for transportation by air and failed to use an authorized combination packaging for its transportation. 16. Byreason ofthe above, PFPL violated the following Department of Transportation Hazardous Materials Regulations (Title 49 ofthe Code ofFederal Regulations):
a. Section 171.2(e) in that PFPL offered or transported 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, or an exemption, approval, or registration issued under this subchapter orunder subchapter A ofthis chapter. b. Sections 172.200(a) and 172.202(a)(1) in that PFPL offered a hazardous material for transportation and failed to describe the hazardous material on shipping papers including the identification number prescribed for the material as shown in Column 4 of the § 172.101 Table, in the manner required bythis subpart.
c. Sections 172.200(a) and 172.202(a)(2) in that PFPL offered a hazardousmaterial for transportation and failed to describe the hazardous material on shipping papers including the proper shipping name prescribed for the material as shown in Column 2 ofthe § 172.10I Table. d. Sections 172.200(a) and 172.202(a)(3) in that PFPL offered a hazardous material for transportation and failed to describe the hazardous material on shipping papers including the hazard class or division number prescribed for the material as shown in Column 3 ofthe § 172.101 Table.

e. Sections 172.200(a) and 172.202(a)(4) in that PFPL offered a hazardous material for transportation and failed to describe the hazardous material on shipping papers including the packing group in Roman numerals, as designated f(>r the hazardous material in Column 5 ofthe § 172.10I Table. f. Sections 172.200(a) and 172.202(a)(6) in that PFPL offered a hazardous material for transportation by aircraft and failed to describe the hazardous material on shipping papers showing the total mass per package, unless a gross mass is indicated in Columns (9A) or (9B) ofthe § 172.10 I Table in which case the total gross mass per package must be shown; or, for Class 7 materials, the quantity ofradioactive must be shown by activity. g. Sections 172.200(a) and 172.202(a)(7) in that PFPL offered a hazardous material for transportation and failed to describe the hazardous material on shipping papers indicating the number and type ofpackages (for example, "12 drums"). h. Sections 172.204(a) or (c)(l) in that PFPL offered a hazardous material for transpOI1ation and failed to certify that the material was offered for transportation in accordance with this subchapter by printing on the shipping paper containing the required shipping description one of the certifications set forth in this part.
1. Section 172.204(c)(2) in that PFPL offered a hazardous material to an aircraft operator for transportation by air and failed to provide two copies ofthe certification required in this section. J. Section 172.204(c)(3) in that PFPL offered for transportation by air a hazardous material authorized for air transportation and failed to add to the certification required in this section the following statement: "I declare that all ofthe applicable air transport requirements have been met., k. Section 172.30l(a) in that PFPL offered for transportation a hazardousmaterial in a non-bulk packaging and failed to mark the package with the proper shipping name and identification number (preceded by "UN" or "NA", as appropriate) for the material as shown in the §172.10l table. I. Sections 172.300(a) and l72.312(a)(2) in that PFPL offered a non-bulk combination package having inner packagings containing liquid hazardous material for transportation and failed to legibly mark the outer package with package orientation markings that conform pictorially to ISO Standard 780-1895, on two opposite vertical sides ofthe package with the arrows pointing in the correct upright direction.
m. Section 172.400(a) in that PFPL offered for transportation a hazardous material in one of the packages or containment devices listed in this subpart and failed to label the package or containment device with the labels specified f(>r the material in the§ 172.1OJ Table and in this subpart.
n. Section 172.600(c)(l) in that PFPL offered for transportation a hazardous material and failed to make the emergency response information conforming to this subpart immediately available for use at all times the hazardous material was present.
o. Section I72.600(c)(2) in that PFPL offered for transportation a hazardous material and failed to make emergencyresponse information including the emergency response telephone number, immediately available to any government agency responding to an incident involving hazardous materials or conducting an investigation which involves a hazardous material. p. Section !72.702(a) in that PFPL offered a hazardous material for transportation and failed to ensure that each ofits hazmat employees was trained in accordance with the requirements prescribed in this subpati. q. Section 173.202 in that PFPL otTered for transportation a package containing liquid hazardous material in Packing Group II when §172.10I of this subchapter specified that it be packaged under this section and failed to usc non-bulk packagings prescribed in this section conforming to the general packaging requirements of subpart B of part 173, to the requirements of part 178 ofthis subchapter at the Packing Group I or Il performance level (unless otherwise excepted), and to the requirements of the special provisions ofColumn 7 ofthe §172.101 Table. In accordance with Section 5123(a) of Chapter 51, Title 49 of the United States Code of Transportation, 49 U.S.C.§ 5123, [name ofviolator] is liable for a civil penalty ofnot less than $250 ($450 for training violations), nor greater than $75,000 ($175,000 ifdeath, serious illness, severe injury, or substantial property damage results), for each violation ofthe regulations.After reviewing our investigative file, we propose to assess a civil penalty in the amount of $78,000 for these violations. Unless you mail or personally deliver, in writing, your request for a hearing in this matter, on or before fifteen (15) days after you receive this Final Notice, we will issue an Order Assessing Civil Penalty and you will have no further right to a hearing. If you do not submit a written request for a hearing, you must pay the proposed civii penalty. Your request for a hearing must be sent to the Federal Aviation Administration, 

### 600 Independence Avenue SW, Wilbur Wright Building, Suite 2WI000, Washington, DC 20591, Attention: Hearing Docket Clerk, AGCA30 (if delivery is in person or via expedited courier service) or Federal Aviation Administration, 

### 800 Independence Avenue SW, Wilbur Wright Building, Suite 2WIOOO, Washington, DC 20591, Attention: Hearing Docket Clerk, AGC-430 (if delivery is via U.S. Mail), and a copy must be sent to the undersigned FAA attorney. Your request must be dated and signed, in accordance with section 13.16 of the Federal Aviation Regulations, sent to you with the Notice ofProposed Civil Penalty ( 14 C.F.R. §13.16). You may pay the proposed penalty by submitting a certified check or money order payable to the "Federal Aviation Administration" to the undersigned. RANDY ELLEN HYMAN REGIONAL COUNSEL



# BY~(j~ ROBERT B. DIXON Attorney Office ofthe Regional Counsel CERTIFICATE OF SERVICE I hereby certify that the foregoing Final Notice of Proposed Civil Penalty has been mailed by Registered Mail & Regular Mail to: President Pro Form Products Ltd. 604 McGeachie Drive Milton, Ontario Canada L9T3Y5



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### J DONNA E. STANLEY\ Legal Assistant Office ofthe Regional Counsel 

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## 5 2015 Dated