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APPEARANCES: 

On Behalf of the Complainant: 

KYLE LOMAZOW, ESQ. 

of: FAA Office of Regional Counsel 

1601 Lind Avenue SW, ANM-7 

Renton, Washington 98057 

(425) 227-1847 

On Behalf of the Respondent: 

CYNTHIA CHANDLER-SNELL, ESQ. 

of: FedEx Express 

3620 Hacks Cross Road 

Building B, 3rd Floor 

Memphis, Tennessee 38125 

(901) 434-8361 

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OPENING STATEMENT: PAGE 

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1 PRO C E E DIN G S 

2 9:28 a.m. 

3 JUDGE GOODWIN: Counsel, identify 

4 yourself for the record, please. 

5 MR. LOMAZOW: Kyle Lomazow for the 

6 FAA. 

7 JUDGE GOODWIN: Spell your last 

8 name, please. 

9 MR . LOMAZOW : L-o-m-a-z as in 

10 "zebra" -o-w. 

11 JUDGE GOODWIN: Counsel? 

12 MS. CHANDLER-SNELL: Cynthia 

13 Chandler-Snell for Federal Express Corporation 

14 and for Corporate Airline -- Corporate Air. 

15 Last name C-h-a-n-d-l-e-r hyphen --

16 JUDGE GOODWIN: Chandler? 

17 MS. CHANDLER-SNELL: Yes, sir 

18 hyphen S-n-e-l-l. And for convenlence, I'll 

19 respond to Ms. Chandler or Ms. Snell or 

20 Counsel. 

21 JUDGE GOODWIN: Okay. The cases 

22 I've got on the docket are Federal Express 

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1 Corporation, FAA No. 2010-0977 and Corporate 

2 Air 2010-0975. Are we going to -- I don't 

3 care how counsel tries it. They can try it as 

4 a consolidated case, one after the other, 

5 however you want to do it. So what's your 

6 pleasure? 

7 MR. LOMAZOW: I was gOlng to try 

8 it as a consolidated case, FedEx and Corporate 

9 Air. 

10 JUDGE GOODWIN: Okay. 

11 MS. CHANDLER-SNELL: And we have 

12 no objections to that, Your Honor. 

13 JUDGE GOODWIN: All right. Then 

14 that's what we'll do. Does anybody want a 

15 rule on witnesses? 

16 MS. CHANDLER-SNELL: As far as 

17 sequestering the witnesses? 

18 JUDGE GOODWIN: Yeah. 

19 MS. CHANDLER-SNELL: Yes, Your 

20 Honor. 

21 MR. LOMAZOW: Yes. 

22 MS. CHANDLER-SNELL: I think the 

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1 parties have agreed. 

2 MR. LOMAZOW: We have agreed to 

3 sequester the witnesses. 

4 JUDGE GOODWIN: Okay. There's 

5 area out in the foyer. There's no cafeteria 

6 in the building. The cafeteria, you have to 

7 go outside, through securi ty, turn right, turn 

8 right, and it's downstairs. There's a 

9 Starbucks on the other side of the street. 

10 I'm going to instruct all the witnesses 

11 they're not to discuss any testimony in this 

12 case prior to the conclusion of the case. If 

13 you have any question about whether you can 

14 talk to somebody about something, talk to the 

15 attorney for whichever party you're here for. 

16 The FAA is allowed one technical 

17 assistant at the table who mayor may not 

18 testify and, consequently, the Respondent is 

19 equally allowed someone. 

20 This is -- it's much a reminder 

21 because Counsel both have appeared before me, 

22 but everything we do goes on the Internet. 

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1 The transcript will go on the Internet. The 

2 exhibits will all go on the Internet. So when 

3 you testify, I would ask that you give your 

4 business address, your business phone number, 

5 and that you not any personal 

6 information. If there comes a time where we 

7 get into information that may have some 

8 security issues, we'll go off the record, I'll 

9 seal that portion of the record, and then 

10 we'll go back on the open record. 

11 I'm going to ask counsel as we go 

12 through to review the exhibi ts, make sure that 

13 we've redacted all personal cell phone 

14 numbers, home phone numbers, home address, and 

15 Social Security numbers, dates of birth, or 

16 anything else. 

17 And my rule of thumb 1S if 1n 

18 doubt, we'll seal it. We work in an 

19 environment and 1n an industry where we can't 

20 be too careful. 

21 Any other preliminary matters, 

22 Counsel? 

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1 MR. LOMAZOW: Your Honor, there lS 

2 the preliminary matter regarding obj ection to 

3 their wi tnesses . I don't know if that's 

4 something you want to take up now. I think --

5 JUDGE GOODWIN: Well, I think 

6 we'll take that up in the course of the 

7 hearing. 

8 MR. LOMAZOW: Okay. 

9 MS. CHANDLER-SNELL: Your Honor, 

10 the matters that Federal Express and Corporate 

11 Air have pending, one involves a late12 disclosed witness. Would you anticipate 

13 handling that the same way? 

14 JUDGE GOODWIN: Yeah, probably. 

15 MS. CHANDLER - SNELL: Okay. And we 

16 have also pending a motion to dismiss on 

17 behalf of Corporate Air and a motion to allow 

18 testimony to be consolidated in all four 

19 cases. If Your Honor would allow, I'd like to 

20 speak on the motion to allow the consolidated 

21 testimony first. 

22 JUDGE GOODWIN: I don't -- unless 

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1 you've got rejection, Counsel, I don't have 

2 any problems in terms of expedited proceedings 

3 into consolidating the testimony. The only 

4 thing we have to make sure is that the 

5 reporter knows that and we'll deal with the 

6 mechanics of that. 

7 I understand that everybody has 

8 schedules and if the two of you have a wi tness 

9 that you want to take out of sequence in order 

10 to accommodate the wi tness, that doesn't cause 

11 me a problem . 

12 MS. CHANDLER-SNELL: Thank you, 

13 Your Honor. 

14 JUDGE GOODWIN: I did that --

15 MS. CHANDLER-SNELL: We have 

16 spoken --

17 JUDGE GOODWIN: ln the LAX 

18 case. We had people coming in from allover 

19 the world. And when they showed up, we'd put 

20 them on the stand. And I know that both of 

21 you have the same problem. So if you two are 

22 amenable to something, we'll do it that way 

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1 and we'll just we can work around the 

2 mechanics of it all. 

3 MS. CHANDLER-SNELL: Thank you, 

4 Your Honor. I've spoken wi th the court 

5 reporter and counsel for the FAA, and I 

6 believe the majority of them are my witnesses, 

7 so I anticipate when we swear them in, to 

8 clarify at that point if they're testifying ln 

9 the Empire case and the Corporate case and, if 

10 so, the court reporter will make note and then 

11 be able to copy and cut the testimony into the 

12 record. 

13 JUDGE GOODWIN: Okay. What I'm 

14 gOlng to ask you to do is periodically check 

15 wi th the court reporter to make sure he's 

16 onboard. 

17 MS. CHANDLER-SNELL: Yes, Your 

18 Honor. 

19 JUDGE GOODWIN: A couple of 

20 mechanical issues. Everything in this room 

21 runs off of motion sensors. So if everybody 

22 sits still and behaves themselves, the lights 

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1 may suddenly go off. It's happened to me 

2 before. So though I'm not trying to encourage 

3 you to leave the rostrum, periodically you may 

4 want to just move around as you're doing. 

5 Also, I've got a hearing 

6 disability, so if I ask you to repeat 

7 something, it's because I really haven't heard 

8 you. And it's more difficult in this 

9 particular environment because it's well 

10 soundproofed and it's big and so it -- to the 

11 extent that we're using the PA system, that's 

12 helpful. 

13 And I can't think of any other 

14 preliminary things. So let's -- we'll go off 

15 the record for just a couple minutes to allow 

16 you to sequester the witnesses and then we'll 

17 go back on the record. 

18 MS. CHANDLER-SNELL: Your Honor, 

19 regarding our motion to dismiss on behalf of 

20 Corporate, would you like to hear argument on 

21 that? 

22 JUDGE GOODWIN: I think I'm going 

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1 to treat that as a jurisdictional motion to be 

2 argued at the end of the hearing. It was 

3 filed at such a time the FAA hasn't had a 

4 chance to respond. 

5 MS. CHANDLER-SNELL: Yes, Your 

6 Honor. 

7 JUDGE GOODWIN: If there's a basis 

8 for it, it's a jurisdictional motion as it is 

9 anything else. 

10 MS. CHANDLER-SNELL: Yes, Your 

11 Honor. 

12 JUDGE GOODWIN: Okay. Anything 

13 else? And that might be a matter that you 

14 want to address preliminarily in your briefs 

15 because if it's jurisdictional, it's always 

16 jurisdictional. 

17 MS. CHANDLER-SNELL: My only 

18 concern with doing that, Your Honor, is that 

19 I guess would it be appropriate for Corporate 

20 Air to have an objection on the a 

21 preliminary objection on the record to any 

22 testimony that's taken ln today regarding 

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1 Corporate Air? In other words, not waiving 

2 our motion to dismiss simply because the 

3 testimony about the allegations against 

4 Corporate Air is coming in today? 

5 JUDGE GOODWIN: I wouldn't treat 

6 it as a waiver. If you enter an objection 

7 that once you affirmatively waive the 

8 objection, then it's an objection. 

9 MS. CHANDLER-SNELL: Yes, Your 

10 Honor. 

11 JUDGE GOODWIN: And, of course, 

12 Counsel for the FAA can always argue to the 

13 contrary. But - - all right. Let's go off the 

14 record for about two minutes, allow you to 

15 sequester the witnesses, do any mechanical 

16 stuff. 

17 I don't care whether the witnesses 

18 leave the building, stay in the building, stay 

19 out there. That's up to Counsel. All right. 

20 (Whereupon, at 9:35 a.m. off the 

21 record until 9:41 a.m.) 

22 JUDGE GOODWIN: Back on the 

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1 record. Ms. Snell, I know that you would 

2 probably secretly be concerned about whether 

3 I had a chance to visit with my grandchildren 

4 because we moved the venue, but I had dinner 

5 with my two-year-old granddaughter last night 

6 here, so you're off the hook. 

7 MS. CHANDLER-SNELL: I'm glad to 

8 hear that, Your Honor. I was concerned. 

9 JUDGE GOODWIN: No. I knew that 

10 you probably felt it would affect my 

11 disposition and predisposition towards the 

12 case, but I got a call at three 0' clock 

13 yesterday afternoon and we had dinner 

14 together, so it was a lot of fun. 

15 MS. CHANDLER-SNELL: Well, I think 

16 that's just testimony that your grandchildren 

17 are better than my children. You wouldn't 

18 want to be trying to avoid 'em. 

19 JUDGE GOODWIN: Well, but, see, I 

20 get to send 'em home and -- you know, two and 

21 a half hours is about my limit. I had to take 

22 a nap. 

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1 MS. CHANDLER-SNELL: Me, too. 

2 JUDGE GOODWIN: Yeah. Opening 

3 statements, Counsel? 

4 MR . LOMAZOW : Yes, Your Honor. 

5 I'll keep it very short and simple. 

6 OPENING ON BEHALF OF THE COMPLAINANT 

7 MR. LOMAZOW: This case involves 

8 three improperly marked packages of hazardous 

9 materials. You're going to hear on two 

10 different dates. One package was from May 

11 12th, 2008. The second package was from May 

12 16th, 2008. This involves Federal Express. 

13 Both packages all three packages were 

14 tendered to Federal Express. They were 

15 transferred to Corporate Air for 

16 transportation. And you'll hear testimony as 

17 to why these packages were in fact improperly 

18 marked, and you'll also hear testimony as to 

19 why the sanction that the Administrator is 

20 seeking 1S consistent with the Sanction 

21 Guidelines. 

22 Thank you, Your Honor. 

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1 JUDGE GOODWIN: Ms. Snell, do you 

2 want to be heard? 

3 MS. CHANDLER-SNELL: Yes, Your 

4 Honor. 

5 OPENING ON BEHALF OF THE RESPONDENT 

6 MS. CHANDLER-SNELL: To elaborate 

7 a little more on these cases, they do involve, 

8 as the FAA stated, two different sets of 

9 lssues. Now, we would submit that there's the 

10 -- the primary and most of the testimony that 

11 you're going to hear today, and over the 

12 course of the week, will be involving UN 3373, 

13 biological substances Category B. 

14 Your Honor, our testimony from our 

15 FedEx witnesses will involve the background on 

16 the packaging that was developed by Federal 

17 Express for use by customers to reflect the 

18 changing regulations on these types of 

19 substances. We will have two or three 

20 witnesses, some from the industry, some from 

21 internal to FedEx, who will testify about the 

22 changing nature of these regulations and how 

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1 FedEx has cooperated with the FAA 1n 

2 determining how these shipments need to be 

3 properly packaged and how they need to be 

4 properly transported through a carrier system. 

5 That information 1S important 

6 because the primary issue before Your Honor 

7 today will be on the interpretation of HM226A. 

8 The background of that is that is the rule 

9 that affects these UN 3373 shipments. The 

10 wording of the rule, we submit, does not lend 

11 itself to the interpretation that the FAA 

12 would be attempting to enforce against both 

13 FedEx and Corporate Air. So we'll be giving 

14 witnesses who have the background on how that 

15 rule was developed, on why such wording was 

16 chosen, on the general interpretation in the 

17 industry of what the rule means, and we will 

18 have testimony on the practical effect that 

19 the FAA's interpretation of this rule will 

20 have on transportation of these substances. 

21 In order to give more background 

22 on why it's important that these substances be 

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1 transported overnight, we will be offering the 

2 testimony of a medical doctor who will testify 

3 regarding the types of shipments that are 

4 involved in this in these in this 

5 Category B. He will testify as to the far6 reaching effects that even an hour or two's 

7 delay on these shipments can have on 

8 individuals who are being diagnosed or have 

9 been diagnosed with life-threatening 

10 conditions. 

11 All of that goes back to the 

12 interpretation of the rule. Further, we will 

13 present testimony from Bob Richard. The FAA 

14 will have objections to that and we can deal 

15 with those when they come, but we expect Mr. 

16 Richard's testimony to be that he was the 

17 Assistant Deputy at PHMSA, the Assistant 

18 Deputy of Hazardous Materials at PHMSA when 

19 this rule was ushered through. 

20 While, as Your Honor well knows, 

21 having read the opinion that Your Honor has 

22 gi ven on expert testimony of DOT - - former DOT 

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1 employees, Mr. Richard won't be offered as an 

2 expert but he will be offered to give 

3 background and to gl ve details of how the rule 

4 reads, plain and simple from the rule. He 

5 will give explanations on that and he will 

6 testify, we expect, that he had conversations 

7 with FedEx during the time the rulemaking was 

8 proceeding and gave representations to FedEx 

9 regarding what the rule meant as a practical 

10 matter for carriers. 

11 The substantial maj ori ty of the 

12 testimony we'll present would be on the UN 

13 3373 issue. 

14 Now, a secondary issue will be the 

15 issue of FedEx's feeder relationship with our 

16 feeder operator, Corporate Air, who we're also 

17 representing here today. 

18 Your Honor I think has some 

19 background on that, but we will be submitting 

20 testimony from Corporate Air to acknowledge 

21 that Corporate Air was flying under their 

22 flight certificate at the time that these 

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1 items were transported. 

2 Every item in this case was flown 

3 on a Corporate Air plane, not a FedEx plane. 

4 They were flown under Corporate Air's flight 

5 certificate, not FedEx's flight certificate. 

6 So the nuance on this case will be 

7 whether the activities that FedEx performed in 

8 inspecting these packages and loading these 

9 packages was performed as an agent of 

10 Corporate Air or as an independent act on 

11 behalf of FedEx and under their flight 

12 certificate. So some of the testimony 

13 involved will contribute to that issue, which 

14 of course we will follow up in briefs and 

15 develop more fully. 

16 Then the final issue that will be 

17 before the Court in our interpretation will be 

18 a shipment that was -- had an oxidizer label. 

19 The shipment was not properly marked and 

20 labeled in the way that it should have been 

21 when it came from the shipper. The testimony 

22 we believe will come in from the FAA agent 

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1 that the shipment was loaded ln an 

2 inaccessible position that was inappropriate 

3 if the package contained an item that was 

4 required to have an oxidizer label. 

5 And we believe the further 

6 testimony coming in through David Littlejohn 

7 and through Agent Lusching -- Luscher will be 

8 that the shipment was not actually required to 

9 have an oxidizer label. 

10 At the end of the day, the 

11 investigation revealed that it was not 

12 regulated at all. 

13 So the information that we 

14 presented will talk about remedial measures 

15 with FedEx as well, but the issues that will 

16 keep floating around is whether a violation of 

17 FedEx policy is a violation of the CFR. And 

18 we'll establish that in more detail through 

19 the testimony over the next few days. 

20 JUDGE GOODWIN: Okay. One 

21 suggestion is -- well, you must remember the 

22 Court does have familiarity, but I think it's 

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1 important to remember that this case stands 

2 alone, so I think I would encourage both of 

3 you to lay the framework and don't assume that 

4 just because I've done a few of these, that I 

5 know it. Make sure that you do the record 

6 first for -- that you complete the record in 

7 such a way that somebody other than myself who 

8 reviews it understands everything ln the 

9 record. 

10 And as I told one of your 

11 colleagues in Chicago a number of years ago, 

12 I can interpret what the regulations -- I can 

13 make decisions with respect to the 

14 regulations, but I can't change the 

15 regulations and, as I suggested to him in the 

16 case ln Chicago, it could be that relief 

17 doesn't lie with this Court i it may lie 

18 elsewhere. 

19 MS. CHANDLER-SNELL: Yes, Your 

20 Honor. 

21 JUDGE GOODWIN: If you know what I 

22 mean. 

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1 MS. CHANDLER-SNELL: Yes, Your 

2 Honor. 

3 JUDGE GOODWIN: Sir, are you 

4 ready? 

5 MR. LOMAZOW: Call my first 

6 witness, Your Honor? 

7 JUDGE GOODWIN: I'm having dinner 

8 with your predecessor tomorrow night. 

9 MR. LOMAZOW: Oh, Mr. Morris. 

10 JUDGE GOODWIN: Yes. Tell him I 

11 said hi . 

12 JUDGE GOODWIN: All right. I 

13 don' t know if you heard, Ms. Snell, Mr. Morris 

14 is now an ALJ with the Social Security 

15 Administration. 

16 MS. CHANDLER-SNELL: I did. We 

17 were very sorry to see him leave, Your Honor, 

18 but we wish him the best. 

19 JUDGE GOODWIN: Yeah. I knew you 

20 would be. Yeah. 

21 Call your first witness. 

22 MR. LOMAZOW: Okay. Your Honor, 

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1 the Administrator calls Lori Luscher to the 

2 stand. 

3 JUDGE GOODWIN: Okay. While 

4 you're getting here, I'll be right back. 

5 (Pause.) 

6 MALLORY LUSCHER, COMPLAINANT'S WITNESS, 

7 SWORN 

8 JUDGE GOODWIN: Please be seated. 

9 And would you state your full name for the 

10 record and spell your first and last name. 

11 THE WITNESS: Okay. Mallory 

12 Luscher, M-a-l-l-o-r-y, Luscher, 

13 L-u-s-c-h-e-r. 

14 JUDGE GOODWIN: Counsel. 

15 DIRECT EXAMINATION 

16 BY MR. LOMAZOW: 

17 Q Okay. Ms. Luscher, where are you 

18 employed? 

19 A I am employed at the Federal 

20 Aviation Administration. 

21 Q Okay. What's your please 

22 describe your aviation background. 

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1 A My aviation background 1S almost 

2 11 years with the Federal Aviation 

3 Administration, nine years as a hazmat special 

4 agent, and two years as a program analyst for 

5 hazmat. 

6 Q How long have you been with the 

7 FAA? 

8 A Almost 11 years. 

9 Q Okay. And what training have you 

10 received regarding hazardous materials? 

11 A I've received classroom training, 

12 on-the-job training all through the Federal 

13 Aviation Administration. 

14 Q Okay. And what are your duties 

15 and responsibilities currently? 

16 A Currently my duties involve 

17 enforcing 49 CFR, the hazmat regulations. And 

18 in doing so, I perform investigations, 

19 inspections on both carriers, shippers. I 

20 also do a lot of outreach activities dealing 

21 with the general public and different industry 

22 groups. 

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1 Q So your duties do involve 

2 conducting investigations into violations of 

3 the Hazardous Material Regulations? 

4 A Yes, sir. 

5 Q Okay. Approximately how many 

6 investigations have you performed ln your 

7 career? 

8 A Almost 300. 

9 Q Okay. 

10 MR. LOMAZOW: Your Honor, I offer 

11 Agent Luscher as an expert in the area of 

12 hazardous material compliance. 

13 MS. CHANDLER-SNELL: Your Honor, 

14 my objection would be I don't think that she 

15 was --

16 JUDGE GOODWIN: You want to VOlr 

17 dire her? 

18 MS. CHANDLER-SNELL: Yes, Your 

19 Honor. Well, I'd say a preliminary obj ection, 

20 I don't think she was disclosed as an expert, 

21 a potential expert witness in the case. She's 

22 just listed as a factual witness. 

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1 JUDGE GOODWIN: Is she offered as 

2 a factual or an expert? What's her area of 

3 expertise? 

4 MR. LOMAZOW: Her area of 

5 expertise is going to be Parts 171 through 175 

6 in the Air Commerce Mode regarding hazmat 

7 investigations. 

8 JUDGE GOODWIN: Well, all I've 

9 heard so far is a foundation for testimony --

10 I haven't heard anything that would suggest 

11 she's an expert in anything in particular . 

12 MR. LOMAZOW: Okay. 

13 JUDGE GOODWIN: So at this point, 

14 the obj ection to have her accepted as a 

15 witness would be sustained. 

16 MR. LOMAZOW: Okay. 

17 MS. CHANDLER-SNELL: Thank you, 

18 Your Honor. 

19 MR. LOMAZOW: As a factual witness 

20 is fine? 

21 JUDGE GOODWIN: I'd assume she's 

22 going to testify. 

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1 BY MR. LOMAZOW: 

2 Q Ms. Agent Luscher, please 

3 describe ln a little bit more detail your 

4 hazardous material investigations, the process 

5 -- what type of investigations you take part 

6 In. 

7 A I look into violations of the 

8 Hazardous Materials Regulations as it pertains 

9 to air commerce, going to companies or to air 

10 carrlers that report undeclared leaks or 

11 spills of hazardous materials, and so I go in 

12 and take pictures, take statements, and put 

13 them altogether and create EIRs, which are 

14 investigative reports. 

15 Q Okay. So do you investigate air 

16 carriers? 

17 A Yes. 

18 Q Do you investigate other entities 

19 besides air carriers? 

20 A Yes, shippers and also passengers. 

21 Q Okay. And as part of your 

22 training, are you familiar with the Title 49 

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1 CFR? 

2 A Yes, I am. 

3 Q Okay. And are you familiar with 

4 the Hazardous Material Regulations? 

5 A Yes, I am. 

6 Q Okay. And do you apply the 

7 Hazardous Material Regulations ln your 

8 investigations and in your inspections? 

9 A Yes, I do. 

10 Q Okay. And when you complete an 

11 EIR, who do you report to? 

12 A I report that to my supervisor. 

13 Q Okay. And your and, from 

14 there, they make a decision on whether to go 

15 forward or not? 

16 A Yes. 

17 Q Okay. Once agaln, how many 

18 hazardous material investigations have you 

19 been a part of? 

20 A Almost 300. 

21 Q Okay. 

22 MR . LOMAZOW : Your Honor, once 

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1 again, I offer Agent Luscher as an expert in 

2 hazardous material investigations. 

3 JUDGE GOODWIN: Ms. Snell? 

4 MS. CHANDLER-SNELL: Your Honor, I 

5 would - - I guess I would renew my obj ection to 

6 her being declared an expert without prior 

7 notice to Counsel to be able to do any 

8 background information. I've not heard 

9 anything about her education, her resume, or 

10 any specific -- I guess a specific involvement 

11 she's had with the regulations. As far as 

12 being offered as an expert in inspection 

13 for inspection purposes only, I'm not -- I 

14 guess I'm not sure about the well-defined area 

15 of what she's being offered as an expert in. 

16 JUDGE GOODWIN: Overrule your 

17 objection. She can testify as to her 

18 expertise in inspections. But anything beyond 

19 that, we'll review at that point. 

20 MS. CHANDLER-SNELL: Thank you, 

21 Your Honor. 

22 MR. LOMAZOW: Your' Honor , before I 

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1 begin, may I approach the witness? I'm just 

2 going to give her the 

3 JUDGE GOODWIN: Oh, sure. And as 

4 Counsel know, I will keep the originals of the 

5 exhibits. I'm going to mark them the 

6 notebooks the FAA's notebook has been 

7 marked "C." I generally paginate the 

8 exhibits. I'll write on there "Marked for 

9 identification." When they're admitted, I'll 

10 strike through the "ID" and put the date on 

11 it. And I'll do the same thing for 

12 Respondent. Only ask that you not mark them 

13 wi th identical markings because it would cause 

14 confusion if I had two sets of CIs and 2s and 

15 so forth. 

16 MS. CHANDLER-SNELL: So we'll 

17 start with the Rl? 

18 JUDGE GOODWIN: I don't care what 

19 you use but, I mean, logically one would think 

20 "R," but I don't care. Just don't use "C." 

21 MS. CHANDLER-SNELL: Yes, Your 

22 Honor . 

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1 MR. LOMAZOW: Don't use "C." 

2 Okay. So of course I --

3 JUDGE GOODWIN: You could do "CA," 

4 but --

5 MR. LOMAZOW: Okay. I titled from 

6 Cl to C20. 

7 JUDGE GOODWIN: Right. 

8 MR. LOMAZOW: So would you like me 

9 to refer to it as something else? 

10 JUDGE GOODWIN: Pardon me? 

11 MR. LOMAZOW: For my -- you know, 

12 the binder that I handed up, I titled it --

13 JUDGE GOODWIN: I'm assuming that 

14 you want to mark Cl and so forth. 

15 MR. LOMAZOW: Yes. Okay. Okay. 

16 Okay. 

17 BY MR. LOMAZOW: 

18 Q Agent Luscher, do you recall 

19 conducting a surveillance of Federal Express 

20 operations on May 12th, 2008 and May 16th, 

21 2008? 

22 A Yes, I do. 

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1 Q Where were you on May 12th, 2008? 

2 A I was in Great Falls, Montana. 

3 Q And why were you there? 

4 A I was there to perform 

5 comprehensive hazmat inspections at all of the 

6 airlines there at Great Falls International 

7 Airport. 

8 Q Okay. Is Great Falls within your 

9 jurisdictional area of responsibility? 

10 A Yes, it is. 

11 Q Okay. And would you go there as 

12 part of the normal course of your business 

13 activities? 

14 A Yes, I would. 

15 Q Okay. Now, does FedEx have a 

16 facility there or is there some sort of 

17 facility where you were particularly located 

18 at? 

19 A FedEx does have a facility right 

20 there in the airport. 

21 Q Okay. Let's discuss the May 12th, 

22 2008 inspection first. When you arrive at 

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1 Great Falls, describe what you do as part of 

2 your inspection what you did I'm 

3 sorry what you did as part of your 

4 inspection. 

5 A Okay. Okay. 

6 JUDGE GOODWIN: Which one was 

7 this? - - April 

8 MR. LOMAZOW: This lS April -- I'm 

9 sorry -- May 12th, 2008. 

10 THE WITNESS: May 12th, 2008 I 

11 would have gone into the station and talked 

12 with FedEx employees trained to gather 

13 information about the general operation there 

14 at FedEx. FedEx there has a feeder -- feeder 

15 activity there that has several aircraft --

16 smaller aircraft coming in from allover the 

17 state of Montana, and so I would ask 

18 information about those different flights, 

19 gather information about those flights as far 

20 as like their pilot notification forms to see 

21 what type of hazardous materials are coming in 

22 on each flight. 

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1 BY MR. LOMAZOW: 

2 Q And was anyone else with you at 

3 this particular inspection? 

4 A Yes. Actually, Thomas Kenny. 

5 Q And why was he with you? 

6 A Thomas at that time was my 

7 supervisor. 

8 Q Okay. 

9 A And he was there to -- well, for 

10 several reasons -- one, to make sure I'm doing 

11 my job. Another one is to keep his skill set 

12 current and also to help with the feeder 

13 activity. 

14 Q Okay. Were you ln Great Falls 

15 just to conduct surveillance upon FedEx? 

16 A No. I was there to conduct 

17 surveillance on all of the airlines there at 

18 that airport. 

19 Q Okay. As part of your 

20 investigation and as a matter of course, do 

21 you prepare an agent's statement as to the 

22 activities that you conducted? 

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1 A I do. When I find violations, I 

2 do write up an agent's statement. Yes. 

3 Q Okay. Would you please turn to Cl 

4 for identification. 

5 A Okay. 

6 Q Is this the Agency statement you 

7 prepared for the FedEx side of this case? 

8 A Yes, it is. 

9 Q Okay. And was this document made 

10 at or near the time that you observed the 

11 activities that you did on both May 12th, 2008 

12 and May 16th, 2008? 

13 A Yes, it was. 

14 Q And is this prepared in the 

15 ordinary course of your business activities 

16 when you conduct an investigation? 

17 A Yes. 

18 Q And is ita fair and accurate 

19 representation of the activities that you 

20 conducted during your investigation? 

21 A Yes, it lS. 

22 Q Okay. 

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1 MR. LOMAZOW: Your Honor, I offer 

2 Cl for identification as Cl. 

3 MS. CHANDLER-SNELL: No 

4 objections, Your Honor. 

5 JUDGE GOODWIN: Complainant's 1 

6 for identification is received into evidence 

7 as Complainant's 1. 

8 BY MR. LOMAZOW: 

9 Q Please turn to C2 for 

10 identification. 

11 A Okay. 

12 Q Do you recognize this document? 

13 A I do. 

14 Q And what is this document? 

15 A This is my agent statement for the 

16 Corporate Air flights. 

17 Q Okay. So it's the same -- it's 

18 the same statement but just for the Corporate 

19 Air side of the case? 

20 A Pretty much. Yes. 

21 Q Now, were these documents made at 

22 or near the time that you observed the 

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1 activities that you did on May 12th, 2008 and 

2 May 16th, 2008? 

3 A Yes. 

4 Q Is this prepared in the ordinary 

5 course of your business activities when you 

6 conduct an investigation? 

7 A Yes, Slr. 

8 Q And is it a fair and accurate 

9 representation of the activities that you 

10 conducted during your investigation? 

11 A Yes, sir. 

12 Q Now, you mentioned - - or, Agent 

13 Luscher, did you acquire any --

14 MR. LOMAZOW: I'm sorry, Your 

15 Honor. I'm going to enter C2 into evidence as 

16 C2. 

17 JUDGE GOODWIN: Are they identical 

18 statements? 

19 MR. LOMAZOW: They are, with 

20 the - - yes, they are identical statements. So 

21 I did that just because the cases were 

22 consolidated, but they are identical 

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1 statements. 

2 JUDGE GOODWIN: It appears that 

3 the only difference between the two statements 

4 is on Cl at the very bottom, the last two 

5 lines are not on C2, so beginning with 

6 "Unfortunately," ending with the number "6." 

7 Is that correct? 

8 MR. LOMAZOW: That is correct. 

9 JUDGE GOODWIN: I just want to 

10 make sure I've got the proper set. 

11 MR . LOMAZOW : That is correct, 

12 Your Honor. And on the on C2 at the 

13 bottom, it lists the docket number 

14 2008NM700127, which is for Corporate Air. 

15 THE WITNESS: Can I say something? 

16 JUDGE GOODWIN: On the bottom? 

17 MR . LOMAZOW : Yes. Yeah, the 

18 second page of C2. 

19 JUDGE GOODWIN: Well, but I 

20 okay, but C2 is also two pages. 

21 MR. LOMAZOW: Right. 

22 JUDGE GOODWIN: Okay. Ms. Snell? 

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1 MS. CHANDLER-SNELL: No 

2 objections, Your Honor. 

3 JUDGE GOODWIN: Complainant's 2 

4 for identification is received into evidence 

5 as Complainant's 2. 

6 MR. LOMAZOW: Okay. 

7 BY MR. LOMAZOW: 

8 Q Now, Agent Luscher, during this 

9 inspection, did you acquire any documents? 

10 A Yes, I did. 

11 Q Okay. Would you please turn to C3 

12 for identification. 

13 A Okay. 

14 Q Do you recognize this document? 

15 A I do. 

16 Q And what is it? 

17 A This is the Inbound Dangerous 

18 Goods Alert for Flight 7772-13 originating 

19 from Bozeman, Montana, Aircraft N933FE. 

20 Q And who did you request this 

21 information from? 

22 A From FedEx employees. 

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1 Q And did they provide it to you? 

2 A Yes, sir. 

3 Q And what information does the 

4 Inbound Dangerous Good Alert provide you? 

5 A It provides me with some general 

6 information about the flights, flight number, 

7 leg date, origination, destination, if there's 

8 hazmat onboard where on the aircraft and what 

9 type of hazmat would be onboard. 

10 Q Okay. And just so I'm clear, the 

11 tail number for this particular flight was 

12 N933FE? 

13 A That's correct. 

14 Q Okay. And only one aircraft in 

15 the United States can have that tail number; 

16 is that correct? 

17 A Yes. 

18 Q Okay. And did you observe Flight 

19 7772-13 arrive? 

20 A Yes, I did. 

21 Q Okay. And as you said, it 

22 originated from Bozeman, Montana? 

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1 A Yes. 

2 Q Okay. Now, please explain to me 

3 what this document told you as far as the 

4 hazardous materials that had been transported 

5 aboard this flight? 

6 A It showed that there was no hazmat 

7 onboard. 

8 MR. LOMAZOW: Your Honor, I offer 

9 C3 into evidence as C3. 

10 MS. CHANDLER-SNELL: No 

11 objections, Your Honor . 

12 JUDGE GOODWIN: Complainant's 3 

13 for identification is received into evidence 

14 as Complainant's 3. 

15 MR. LOMAZOW: Okay. 

16 BY MR. LOMAZOW: 

17 Q Agent Luscher, did you leave after 

18 reviewing this document? 

19 A No. 

20 Q Why not? 

21 A As part of our inspections, we 

22 want to verify that what is on the paperwork 

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1 matches what 1S being pulled off of the 

2 aircraft. So if we have a piece of paper that 

3 says that no hazmat 1S onboard, we want to 

4 verify that, indeed, there is no hazmat 

5 onboard. 

6 Q Okay. And did you check -- did 

7 you check to see if any dangerous goods were 

8 actually aboard? 

9 A Actually, there were some 

10 mismarked hazmat onboard. 

11 Q Okay. And did you contact the 

12 pilot upon the landing of the aircraft? 

13 A I did. 

14 Q And what, if anything, did he tell 

15 you? 

16 A He said that there was not any 

17 hazmat onboard. 

18 Q And did he provide you with any 

19 documents? 

20 A Yes, he did. 

21 Q Okay. Please turn to what is 

22 marked as C4 for identification. What are 

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1 these documents? 

2 A This is the Dangerous Goods System 

3 Aircraft DG Manifest that is handed to the 

4 pilot upon his departure from the originating 

5 station, and this shows that it is a flight 

6 from Bozeman, same aircraft N933FE, also 

7 showing his signature verifying that there was 

8 no hazmat onboard. 

9 Q Okay. And so these documents --

10 okay. So these documents indicated there was 

11 no dangerous goods or any hazardous materials 

12 onboard? 

13 A That's correct. 

14 Q Okay. 

15 MR. LOMAZOW: Your Honor, I offer 

16 what has been marked as C4 into evidence as 

17 C4. 

18 MS. CHANDLER-SNELL: No 

19 objections, Your Honor. 

20 JUDGE GOODWIN: Complainant's 4 

21 for identification is received into evidence 

22 as Complainant's 4. 

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1 BY MR. LOMAZOW: 

2 Q Now, Agent Luscher, so you 

3 observed packages marked or labeled as 

4 hazardous materials being offloaded from this 

5 aircraft? 

6 A I did. 

7 Q Okay. Now, let's talk once 

8 again, we're talking about the package from My 

9 12th, 2008. What did you notice about this 

10 package when you observed it? 

11 A This was the UN 2428 package that 

12 had a 5.1 oxidizer marking or label on the 

13 package and it was missing a proper shipping 

14 name, and it was not on the pilot 

15 notification. 

16 Q Okay. So it's not enough to mark 

17 a package with the UN identification number 

18 and the hazard class label; the actual 

19 shipping name must be included on the package 

20 as well? 

21 A That's correct. 

22 Q Okay. Does FedEx ever place any 

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1 type of stickers on packages? 

2 A Yes, they do. 

3 Q What do they place on their 

4 packages? 

5 A After -- after a hazmat inspector 

6 or they call them a DG specialist -- looks 

7 at and inspects a package, they do put a 

8 little -- it's like a little red and white 

9 rectangular sticker --

10 MS. CHANDLER-SNELL: Your Honor, 

11 I'd object to her testimony regarding FedEx 

12 policy and procedures without the proper 

13 foundation being laid that she's familiar wi th 

14 such. 

15 JUDGE GOODWIN: Sustained at this 

16 point. 

17 BY MR. LOMAZOW: 

18 Q Counsel, have you ever 

19 investigated Federal Express before? 

20 A Yes, I have. 

21 Q Have you - - have you inspect ion 

22 them at this particular facility before? 

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1 A Yes, I have. 

2 Q Are you familiar with their 

3 processing of hazardous materials policies, 

4 how they handle that? 

5 A Yes, I am. 

6 Q Okay. And have you seen that done 

7 before? 

8 A Yes. 

9 Q Have you seen packages marked wi th 

10 a dangerous goods inspection sticker before? 

11 A I have. 

12 Q Okay. 

13 MR. LOMAZOW: Your Honor, if I can 

14 continue with those questions then? 

15 JUDGE GOODWIN: Go ahead. 

16 BY MR. LOMAZOW: 

17 Q Okay. Why is the fact that 

18 there's not a dangerous goods sticker 

19 important? 

20 A It's important for for the 

21 whole operation, I guess you could say. 

22 Q Well, actually, let me interrupt 

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1 you. What does that indicate to you when you 

2 do not see that there's a FedEx dangerous 

3 goods inspection sticker on an oxidizer? 

4 A Okay. If there is no sticker on 

5 there, then it leads me to believe that the 

6 FedEx DG inspector did not inspect the 

7 package. 

8 Q Okay. Please turn to C5 for 

9 identification. What is this document? 

10 A This is an excerpt from FedEx 

11 Express DG Manual dated February -- I'm sorry 

12 February 1st, 2008. 

13 Q Okay. How did you obtain this 

14 document? 

15 A I received this from FedEx. 

16 Q Okay. Please turn to what is 

17 marked at the bottom as page two of three and 

18 then please read toward the top of the page 

19 where it indicates the requirement for a 

20 preliminary inspection. 

21 JUDGE GOODWIN: Now, just for 

22 clarification, what you've marked as page two 

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1 of three, the Court has marked page one of 

2 two. So we want to make sure that when 

3 somebody reviews the transcript, they won't 

4 get --

5 MR. LOMAZOW: Okay. Yeah. I was 

6 referring to the marking at the bottom of the 

7 page where it --

8 JUDGE GOODWIN: The marking at the 

9 bottom of the right hand is lOP and then 6 and 

10 the next line is page two of three. 

11 MR. LOMAZOW: Yeah. 

12 JUDGE GOODWIN: The Court has 

13 marked Exhibi t C5 one of two and then page two 

14 of two. 

15 BY MR. LOMAZOW: 

16 Q Agent Luscher, please read the 

17 language next to "Preliminary Inspection." 

18 A Okay. 

19 "Whoever first takes a declared 

20 dangerous goods package from the 

21 customer must conduct a 

22 preliminary inspection. 

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1 "If the package appears to be in 

2 compliance, accept it on the 

3 condition that it pass a second 

4 inspection to be conducted by a 

5 dangerous goods specialist. 

6 Advise the customer that the 

7 dangerous goods specialist/agent 

8 will inspect the package again to 

9 make sure that it does comply with 

10 the FedEx Express requirements." 

11 Q Okay. So as per the Federal 

12 Express Dangerous Goods Manual, the Federal 

13 Express employee that initially takes a 

14 dangerous good or a hazmat from the customer 

15 must perform a preliminary inspection on the 

16 package? 

17 A Correct. 

18 Q Okay. Now, please go to the 

19 bot tom of the page and read next to the 

20 language "Complete inspection," and then in 

21 parentheses "at a Federal Express location." 

22 A "Following the preliminary 

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1 inspection and any required 

2 corrections that the shipper 

3 makes, a dangerous goods 

4 specialist/agent must inspect the 

5 package before the package can be 

6 accepted into the FedEx Express 

7 transport system." 

8 Q Okay. So just to be clear, as per 

9 FedEx's policy here, a dangerous good 

10 specialist must inspect a hazardous materials 

11 package before it can be accepted into the 

12 FedEx system for transportation? 

13 A That's correct. 

14 Q And if the DG specialist does not 

15 find any issues with the package, a dangerous 

16 goods inspection sticker is placed on the 

17 package? 

18 A That's correct. 

19 Q Okay. But there is no dangerous 

20 goods inspection sticker placed on this 

21 particular package? 

22 A That's correct. 

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1 Q Okay. And so what does that 

2 indicate to you? 

3 A That it was not inspected by a 

4 dangerous goods specialist. 

5 Q Okay. And is it safe to say that 

6 the failure to include the shipping name on a 

7 hazardous materials package is something the 

8 Federal Express dangerous goods specialist 

9 should have caught? 

10 A Oh, yes. 

11 Q Okay. Please turn to what is 

12 marked as C6 for identification. Do you 

13 recogn1ze this document? 

14 A I do. 

15 Q And what is it? 

16 A This 1S the shipper's declaration 

17 for dangerous goods that was attached to that 

18 shipment from BioScience Laboratories. 

19 Q Okay. And what does this document 

20 tell you? 

21 A This document basically tells me 

22 who the shipper, who the consignee is, the air 

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1 waybill number, and the nature and quantity of 

2 the dangerous goods, such as UN number, the 

3 proper shipping name, class or division, 

4 packing group, etc. 

5 Q Okay. Now, was there anything 

6 included in these shipping papers that were 

7 not included on the package itself? 

8 A The proper shipping name was not 

9 on the package. 

10 Q Okay. And in the top right-hand 

11 corner, is that the FedEx tracking number or 

12 the FedEx air waybill number? 

13 A Yes. The 790011313014. 

14 Q Okay. Please turn to the next 

15 page, which will be page two. What method of 

16 delivery did BioScience select? 

17 A They requested two-day. 

18 Q Okay. 

19 MR . LOMAZOW : Your Honor, the 

20 People offer what has been previously marked 

21 for identification as C6 into evidence as C6. 

22 MS. CHANDLER-SNELL: No 

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1 objections, Your Honor. 

2 JUDGE GOODWIN: Complainant's 6 

3 for identification is received in evidence as 

4 Complainant's 6. 

5 BY MR. LOMAZOW: 

6 Q So, Agent Luscher, did you ever 

7 find out what kind of hazmat, if any, was 

8 inside this package? 

9 A Eventually, yes, after looking at 

10 the material safety data sheets and talking 

11 with the -- with the shipper. It was found 

12 that the solution of the what's that 

13 called? sodium chlorate was mainly water. 

14 Q Okay. So it was not a hazardous 

15 material? 

16 A That's correct. 

17 Q Okay. Does that let FedEx, 

18 Incorporated off the hook? 

19 A No. 

20 Q Okay. So an air carrier does not, 

21 in effect, get lucky if a package that is 

22 improperly marked later turns out not to 

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1 contain hazardous materials? 

2 A That's correct. 

3 MS. CHANDLER-SNELL: Your Honor, 

4 I'll object to the nature of --

5 JUDGE GOODWIN: Sustained. 

6 BY MR. LOMAZOW: 

7 Q Agent Luscher, did you still write 

8 that up as a violation of the Hazardous 

9 Materials Regulations? 

10 A I did. 

11 Q And why is that? 

12 A Because they were marking 

13 violations, marking and declaring that 

14 something's a hazardous material when it's 

15 not, and I realize that that is a 

16 responsibility of the shipper, but it's also 

17 the responsibility of the carrier to inspect. 

18 MS. CHANDLER-SNELL: Your Honor, I 

19 would object at this point. I believe she's 

20 testifying as an expert as to what the 

21 regulations require rather than what she found 

22 in her inspection. 

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1 MR. LOMAZOW: Your Honor, as --

2 what the regulations require is what she has 

3 to do to do her job. 

4 JUDGE GOODWIN: Well, I'm going to 

5 sustain it because the answer is beyond the 

6 scope of the question. 

7 MR. LOMAZOW: Okay. 

8 BY MR. LOMAZOW: 

9 Q Now, when you're - - when you're 

10 deciding what violations to write up, if you 

11 have a marking violation, does that have 

12 anything to do with what's ultimately inside 

13 the package? 

14 A It does if you open up the 

15 package. 

16 Q Okay. But are there marking 

17 violations that are separate from how a 

18 package lS prepared? 

19 A Yes. 

20 Q Okay. Now, what do you mean when 

21 you say the package had been improperly 

22 stowed? 

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1 A I t was not placed as as. 1 

2 oxidizer, it was not placed In the proper 

3 area, storage area, on the aircraft. It was 

4 pulled out of position 3,4. 

5 Q Okay. And in this did this 

6 particular aircraft have any type of fire 

7 suppression system? 

8 A No, it did not. 

9 Q Okay. Agent Luscher, please turn 

10 to what has been marked as C7 for 

11 identification, and C7 consists of 16 

12 photographs. 

13 A Okay. 

14 Q Who took these photographs? 

15 A I did. 

16 Q And what are these photographs of? 

17 A All of these are of all three 

18 shipments that were removed from that flight, 

19 one being 5.1 and then the others being the 

20 two UN 3373 packages. 

21 Q So these represent all three 

22 packages from both two dates, May 12th, 2008 

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1 and May 16th, 2008? 

2 A Yes, sir. 

3 Q Okay. 

4 MR . LOMAZOW : Your Honor, I'll 

5 offer what has been marked as C7 into evidence 

6 as C7. 

7 MS. CHANDLER - SNELL: Your Honor, I 

8 would obj ect to one of the photographs in that 

9 exhibit. I'm trying to count the page 

10 numbers. 

11 JUDGE GOODWIN: I'm going to use 

12 the pagination on the bottom of the photos 

13 because it 

14 MR. LOMAZOW: That's what I was 

15 planning on uSlng. 

16 MS. CHANDLER-SNELL: Page 7 of 16 

17 lS how this one is marked on the exhibit. 

18 MR. LOMAZOW: Okay. 

19 MS. CHANDLER-SNELL: And I think 

20 it is the seventh page In the exhibit. I 

21 would object to that as to relevancy. That 

22 appears to show the inner contents of the 

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1 package. It's not been testified to and I 

2 don't believe that it is relevant considering 

3 the provisions under which FedEx was cited. 

4 MR. LOMAZOW: Your Honor, I have n 

5 obj ection to that. I just included all 

6 pictures just to have a complete set. 

7 JUDGE GOODWIN: Well, at this 

8 point, the only thing that's been offered is 

9 the photographs. None of the verbiage 

10 underneath the photographs has been offered. 

11 MS. CHANDLER-SNELL: I guess, Your 

12 Honor, what I'd at this point, which 

13 perhaps may remove my obj ections, is the 

14 foundation for reach of the photographs and a 

15 description of them. I'm not sure of the 

16 relevance of about four of them' cause I'm not 

17 sure what they show. I think they show the 

18 inner contents. 

19 JUDGE GOODWIN: Yeah. As to 

20 foundation, I'm going to sustain the 

21 objection. 

22 MR. LOMAZOW: Okay. 

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1 BY MR. LOMAZOW: 

2 Q Agent Luscher, please sorry. 

3 Please turn to the picture -- the photograph, 

4 I should say, that's labeled page 1 of 

5 that's marked page 1 of 16 at the bottom. 

6 What does this photograph 

7 represent? 

8 A This photograph is Side 1 of the 

9 shipment that shows the UN 2428 marking as 

10 well as the 5.1 marking. And as you can see, 

11 there's no proper shipping name. And thi s was 

12 the shipment from May 12th, 2008. 

13 Q So the significance is this shows 

14 that there should not have been -- or that 

15 there was a missing shipping name, in other 

16 words? 

17 A That's correct. 

18 Q Okay. 

19 MR. LOMAZOW: Your Honor, I offer 

20 what has been marked at the bottom as page C-1 

21 of 16 into evidence as C-1 of 16. 

22 MS. CHANDLER-SNELL: No obj ections. 

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1 JUDGE GOODWIN: Cl for I'm 

2 sorry -- C7, 1 of 16, lS admitted. 

3 BY MR. LOMAZOW: 

4 Q Your Honor -- I'm sorry -- Agent 

5 Luscher, please turn to the next photograph 

6 marked page 2 of 16 at the bottom. 

7 A Okay. 

8 Q What does this photograph 

9 represents? 

10 A This shows Side 2 of the same 

11 shipment, again indicating a UN number of 

12 2428, orientation arrows, and as well as the 

13 consignee. And this was, again, the package 

14 dated May 12th. 

15 Q Okay. 

16 A Or -- May 12th. 

17 Q Okay. 

18 MR. LOMAZOW: Your Honor, I offer 

19 what is marked as C7, page 2 of 16 into 

20 evidence as C7, page 2 of 16. 

21 MS. CHANDLER-SNELL: No 

22 objections, Your Honor. 

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1 JUDGE GOODWIN: Page 2 of 16 is 

2 admitted. 

3 BY MR. LOMAZOW: 

4 Q Agent Luscher, please turn to the 

5 photograph marked page 3 of 16 at the bottom. 

6 A Okay. 

7 Q What does this photograph 

8 represent? 

9 A This 1S Side 3 of the shipment, 

10 also showing a UN number of 2428 and also that 

11 it meets the ISTA procedures and 1S 1n 

12 packaging but, again, there's no proper 

13 shipping name. 

14 MR. LOMAZOW: Okay. Your Honor, I 

15 offer what has been marked as C7, page 3 of 16 

16 for identification into evidence as C7, page 

1 7 3 of 16. 

18 MS. CHANDLER-SNELL: No 

19 objections, Your Honor. 

20 JUDGE GOODWIN: Okay. Photograph 

21 3 of 16 is admitted. 

22 II 

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1 BY MR. LOMAZOW: 

2 Q Agent Luscher, please turn to what 

3 is marked as page 4 of 16. 

4 A Okay. 

5 Q What does this photograph 

6 represent? 

7 A The same package. This is Side 4 

8 showing the orientation arrows and also UN 

9 2428 and it's -- there's a warning about the 

10 insides being glass. 

11 MR. LOMAZOW: Your Honor, I offer 

12 what has been marked as C7, page 4 of 16, into 

13 evidence as C7, page 4 of 16. 

14 MS. CHANDLER-SNELL: No 

15 objections, Your Honor. 

16 BY MR. LOMAZOW: 

17 Q Agent Luscher, please turn to what 

18 has been marked --

19 JUDGE GOODWIN: Okay. Four of 16 

20 is admitted as 4 of 16. 

21 MR. LOMAZOW: Sorry, Your Honor. 

22 II 

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1 BY MR. LOMAZOW: 

2 Q Agent Luscher, please turn to what 

3 has been marked as page 5 of 16. 

4 A Okay. 

5 Q What does this photograph 

6 represent? 

7 A This 1S the top of the box, the 

8 same shipment, showing that it was fragile, 

9 showing that it's compliant when packed 

10 properly. Also shows a FedEx air waybill 

11 number, tracking number, I guess, from May 

12 12th. 

13 Q Okay. 

14 MR . LOMAZOW : All right. Your 

15 Honor I the People offer or the Agency 

16 offers what has been marked as C7, page 5 of 

17 16 for identification into evidence as C7, 

18 page 5 of 16. 

19 MS. CHANDLER-SNELL: No 

20 objections, Your Honor. 

21 JUDGE GOODWIN: Photograph 5 of 16 

22 is admitted as 5 of 16. 

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1 BY MR. LOMAZOW: 

2 Q Agent Luscher, please turn to the 

3 photograph marked page 6 of 16. 

4 A Uh-huh. 

5 Q What does this photograph 

6 represent? 

7 A This is Side 6 of the shipment. 

8 It's basically the bottom of the box, showing 

9 that the box is for use with four one-gallon 

10 cans and, per the manufacturer, it is in gross 

11 weight and that kind of information . 

12 MR . LOMAZOW : Your Honor, the 

13 Agency offers what has been marked as page 

14 or what has been marked as C7, page 6 of 16 

15 for identification purposes into evidence as 

16 C7, page 6 of 16. 

17 MS. CHANDLER-SNELL: No 

18 objections, Your Honor. 

19 JUDGE GOODWIN: Okay. Six of 16 

20 is received into evidence as 6 of 16. 

21 MR. LOMAZOW: Just for the record, 

22 though we included it just to have a complete 

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1 set of pictures, the Agency will acknowledge 

2 that photograph 7 of 16 through 12 of 16 are 

3 not relevant for purposes of this case and, 

4 therefore, we will not allude to them, but we 

5 did include them just to have a complete set 

6 of the photographs. 

7 (Pause. ) 

8 Your Honor, should I proceed? 

9 JUDGE GOODWIN: Yeah. They're 

10 marked for identification because the Court --

11 the package but, because they're not admitted, 

12 they won't be considered. 

13 MR. LOMAZOW: Yes, Your Honor. 

14 BY MR. LOMAZOW: 

15 Q Agent Luscher, lS it the normal 

16 course of your investigation to send out a 

17 letter of investigation? 

18 A Yes, it lS. 

19 Q Please turn to C8 for 

20 identification. What lS this document? 

21 A This lS the letter of 

22 investigation that I sent to Federal Express 

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1 on June 2nd, 2008. 

2 Q Okay. And what 1S the purpose of 

3 a letter of investigation? 

4 A It's basically to let the air 

5 carrier know that we are conducting an 

6 investigation on the violations that we had 

7 found. 

8 Q Okay. And did you rece1ve a reply 

9 to this letter of investigation in regards to 

10 the improperly marked package you observed on 

11 May 12th, 2008? 

12 A I did. 

13 Q Okay. 

14 MR. LOMAZOW: Your Honor, I offer 

15 C8 for -- I offer what has been marked as C8 

16 for identification into evidence as C8. 

17 MS. CHANDLER-SNELL: Your Honor, I 

18 have no obj ections to that. I do want for 

19 clarification to go back to the previous 

20 exhibit. 

21 JUDGE GOODWIN: Yeah. Let's come 

22 back and make sure we get the housekeeping 

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1 done correctly. I show photograph 1 of 16 has 

2 been admitted, 2 of 16 -- what I'm going to do 

3 is identify these as photograph 1 of 16 

4 it's actually C7, 1 of 16; C7, 2 of 16 -- C7, 

5 3 of 16 is admitted; C7, 4 of 16 is admitted; 

6 C7, 5 of 16 I have as admitted; I have C6 

7 I'm sorry -- C7, 6 of 16 is also admitted. Is 

8 that correct? 

9 THE REPORTER: That's correct. 

10 JUDGE GOODWIN: And then my 

11 understanding is 7 through 16 are not going to 

12 be admitted in this case? 

13 MR. LOMAZOW: No, Your Honor. The 

14 7 through what is marked at the bottom 7 

15 through 11 -- I'm sorry -- 7 through 12 is not 

16 going to be admitted. I'm going to come back 

17 to the final three photographs when I get to 

18 that package. 

19 JUDGE GOODWIN: All right. Let me 

20 - - let's just get the housekeeping done first. 

21 MR. LOMAZOW: Okay. 

22 JUDGE GOODWIN: So what I have is 

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1 photographs 1, 2, 3, 4, 5, 6 of 16 are all 

2 admitted. Seven, 8, 9, 10, 11 will be marked 

3 for identification but will not be received in 

4 this case. 

5 MR. LOMAZOW: And that's the same 

6 for 12 and 16, Your Honor. 

7 JUDGE GOODWIN: So 12 will be 

8 marked for identification but not be receivedi 

9 is that correct? 

10 MR. LOMAZOW: Correct. 

11 JUDGE GOODWIN: Okay. Ms. Snell, 

12 did that clarify your concerns? 

13 MS. CHANDLER-SNELL: It did, Your 

14 Honor. Thank you very much. 

15 JUDGE GOODWIN: All right, 

16 Counsel. 

17 BY MR. LOMAZOW: 

18 Q Agent Luscher, please turn to C9 

19 for identification. What is this document? 

20 A This is the letter of response 

21 from FedEx dated June 10th, 2008. 

22 Q Okay. Please describe FedEx's 

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1 response ln regards to the package -- the 5.1 

2 oxidizer only. 

3 A Second paragraph, it says that, 

4 "The pick-up courier mistakenly did not bring 

5 this package to the attention of the dangerous 

6 goods specialist for inspection." And that it 

7 would have been rejected by the DG specialist 

8 for the shipper's error if inspected. 

9 Q Okay. Now, does this response 

10 provide any corrective action for the 

11 violation that you observed on May 12th, 2008? 

12 A It did say that the employee was 

13 directed to re-take the internal initial DG 

14 training and that two other employees were 

15 provided counseling as well ln regards to 

16 internal policy for processing DG. 

17 Q Okay. Is this above what would be 

18 required by Title 49 CFR? 

19 MS. CHANDLER - SNELL: Your Honor, I 

20 object as to the interpretation of the 

21 regulations and what is required. 

22 JUDGE GOODWIN: Overruled. It's 

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1 not really an interpretation. 

2 MR. LOMAZOW: Your Honor, I would 

3 offer what's been marked as C9 for 

4 identification into evidence as C9. 

5 MS. CHANDLER-SNELL: No 

6 objections, Your Honor. 

7 JUDGE GOODWIN: Hold on a minute. 

8 Did you offer Complainant's 8? 

9 MR. LOMAZOW: I did, Your Honor, 

10 and then I believe -- I believe 

11 JUDGE GOODWIN: Okay. Let's go 

12 back to 8. Do you have a position, Ms. Snell, 

13 with respect to Complainant's 8 which is the 

14 FAA letter of June 2nd? 

15 MS. CHANDLER-SNELL: No 

16 objections, Your Honor. 

17 JUDGE GOODWIN: All right. 

18 Complainant's 8 for identification is received 

19 into evidence as Complainant's 8. 

20 Ms. Snell, with respect to 

21 Complainant's 9, do you have a position? 

22 MS. CHANDLER-SNELL: No 

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1 objections, Your Honor. 

2 JUDGE GOODWIN: Complainant's 9 

3 for identification is received into evidence 

4 as Complainant's 9. 

5 Go ahead. 

6 MR. LOMAZOW: Okay. 

7 BY MR. LOMAZOW: 

8 Q Agent Luscher, please turn to CI0 

9 for identification. What is this document? 

10 A This 1S the letter of 

11 investigation I sent to Corporate Air on June 

12 2nd, 2008. 

13 Q And did you receive a response to 

14 this letter of investigation from Corporate 

15 Air? 

16 A I did. 

17 MR. LOMAZOW: Your Honor, we offer 

18 what has been marked as CI0 for identification 

19 into evidence as CI0. 

20 MS. CHANDLER-SNELL: No 

21 objections, Your Honor. 

22 II 

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1 BY MR. LOMAZOW: 

2 Q Agent Luscher, please turn to C11 

3 for identification. 

4 A Okay. 

5 Q What is this document? 

6 A This is the letter of response I 

7 received from Corporate Air. 

8 Q Okay. Now, once again, just 

9 focusing on the package from May 12, 2008, is 

10 there anything significant about Corporate 

11 Air's response? 

12 A It does say that the shipment was 

13 not prepared properly by the shipper and it 

14 was accepted by FedEx. It says that, 

15 "Corporate Air does not accept any hazardous 

16 materials shipments directly from individuals 

1 7 or corporations." 

18 Q Okay. Did they offer any 

19 significant corrective action? 

20 A No, they did not. 

21 Q Okay. Did they attach anything to 

22 this letter of investigation? 

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1 A Yes, they did. 

2 Q What did they attach? 

3 A That would have been their manual, 

4 their hazmat manual. 

5 MR. LOMAZOW: Your Honor, we offer 

6 what has been marked into evidence as C11 --

7 I'm sorry what has been marked for 

8 identification as C11 into evidence as C11. 

9 JUDGE GOODWIN: Now, I don't show 

10 that there's a date on this to differentiate 

11 it from anything or that it's on letterhead; 

12 is that correct? 

13 MR. LOMAZOW: Correct, Your Honor. 

14 MS. CHANDLER-SNELL: We have no 

15 objections, Your Honor. 

16 JUDGE GOODWIN: All right. Okay. 

17 Complainant's 10 for identification 1S 

18 received into evidence as Complainant's 10 and 

19 Complainant's 11 for identification 1S 

20 received into evidence as Complainant's 11. 

21 BY MR. LOMAZOW: 

22 Q Agent Luscher, let's now turn to 

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1 May 16th, 2008. Where were you at that time? 

2 A May 16th I was also at FedEx. 

3 Q And were you at the same station? 

4 A Yes, I was, in Great Falls, 

5 Montana. 

6 Q Okay. Were you with Mr. Kenny 

7 again? 

8 A No. This time I was by myself. 

9 Q Okay. And did you observe any 

10 flights arrive? 

11 A I did. 

12 Q Okay. And did you acquire any 

13 documents before the arrival of these flights? 

14 A I did. I was also picking up 

15 pilot notifications inbound from FedEx 

16 employees. 

17 Q Okay. Please turn to what has 

18 been marked as C12 for identification. Do you 

19 recognlze this document? 

20 A I do. 

21 Q What is this? 

22 A This is the Inbound Dangerous 

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1 Goods Alert for Flight 7796-16 originating 

2 from Wolf Point, Montana, arriving in Great 

3 Falls, Aircraft N710FX. 

4 Q Okay. And who did you request 

5 this information from? 

6 A From Federal Express employees. 

7 Q And did they provide it to you? 

8 A They did. 

9 Q And the tail number for this 

10 particular flight was N710FX? 

11 A That's correct. 

12 Q And only one aircraft ln the 

13 United States can have that tail number; is 

14 that correct? 

15 A That's correct. 

16 Q Okay. I'm sorry. Where did this 

17 flight originate from? 

18 A Wolf Point, Montana. 

19 Q Okay. And did you observe the 

20 offloading of this flight? 

21 A I did. 

22 Q And what, if anything, did you 

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1 observe? 

2 A I observed two improperly marked 

3 hazmat packages being removed from the 

4 aircraft. 

5 Q Okay. Now, what -- how were they 

6 improperly marked? 

7 A They were improperly marked UN 

8 3373 packages. Basically, when you mark a 

9 package UN 3373, it needs to be in a diamond10 on-point marking and it also needs to say 

11 "Biological Substances Category B" if it is a 

12 UN 3373 shipment. 

13 Q Okay. So UN 3373 is the hazmat 

14 identification number? 

15 A Yes, sir. 

16 Q Okay. And what kind of hazmat is 

17 it? Is it a biological substance, Category B? 

18 A Yes. That's what the UN 3373 is 

19 for. 

20 Q Okay. And are these -- these are 

21 regulated? 

22 A Yes. They are regulated 

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1 infectious substances and they're Hazard Class 

2 6.2, being Category B. 

3 Q Concerning it's a regulated 

4 hazardous material, are carriers therefore 

5 required to inspect these hazardous materials 

6 prior to acceptance for air transportation? 

7 MS. CHANDLER-SNELL: Your Honor, I 

8 object. That goes to the very heart of what 

9 the interpretation is of 173.199. She's being 

10 asked to interpret the regulations. 

11 JUDGE GOODWIN: Rephrase the 

12 question. 

13 BY MR. LOMAZOW: 

14 Q Is it biological substances 

15 Category B, are they a regulated hazardous 

16 material? 

17 A Yes, they are. 

18 Q Therefore, in your opinion, are 

19 air carrlers required to inspect these 

20 packages prior to air transportation? 

21 MS. CHANDLER-SNELL: Your Honor, I 

22 renew my obj ections to "In your opinion." 

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1 She's not been classif ied as an expert In 

2 interpreting the regulations. She's been 

3 admi t ted to testify to the inspection process. 

4 JUDGE GOODWIN: Rephrase the 

5 question. It -- her interpretation of the --

6 even if she were an expert, the Court would 

7 ignore her interpretation of the regulation 

8 MR. LOMAZOW: Okay. 

9 JUDGE GOODWIN: because if --

10 if I allowed that, then I wouldn't have 

11 anything to do. 

12 MR. LOMAZOW: I understand, Your 

13 Honor. 

14 BY MR. LOMAZOW: 

15 Q Agent Luscher, does Title 49 CFR 

16 require hazardous material regula- -- require 

17 hazardous materials, biological substances 

18 Category B, to be regulated 

19 A Yes, they do. 

20 Q -- to be inspected, I should say? 

21 I'm sorry. 

22 MS. CHANDLER-SNELL: Your Honor, 

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1 I'm going to renew the objection. 

2 JUDGE GOODWIN: Well, the I 

3 think the question was did that particular 

4 portion of the regulation require inspection. 

5 She inspects. 

6 MS. CHANDLER-SNELL: Oh, her 

7 inspection. 

8 JUDGE GOODWIN: Yes. 

9 MS. CHANDLER-SNELL: I understand 

10 the clarification. 

11 JUDGE GOODWIN: But he changed 

12 just for the record, restate the question ln 

13 its proper form to allow her 

14 MR. LOMAZOW: Okay. 

15 BY MR. LOMAZOW: 

16 Q Does Ti tIe 49 are biological 

17 substances Category B, regulated under Title 

18 49 CFR? 

19 A Yes, it is. 

20 JUDGE GOODWIN: She's answered 

21 that. Your next question was? 

22 MR. LOMAZOW: Okay. 

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1 BY MR. LOMAZOW: 

2 Q Are air carriers -- under Title 49 

3 CFR, are air carriers required to inspect 

4 biological substances Category B? 

5 MS. CHANDLER-SNELL: I object 

6 again, Your Honor. What he's asking is not 

7 whether she's required to inspect as part of 

8 her process but whether we're required to 

9 inspect as part of the acceptance. 

10 JUDGE GOODWIN: The question 

11 should be, under the regulations 1S she 

12 required to inspect, which 1S what she's 

13 qualified to testify to. 

14 MR. LOMAZOW: Okay. 

15 BY MR. LOMAZOW: 

16 Q Under the regulations, under Title 

1 7 49 CFR, are you required to inspect biological 

18 substances Category B packages? 

19 A Yes, I am. 

20 Q Okay. Now, based on your 

21 experience conducting investigations of 

22 Federal Express, did the DG specialist examine 

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1 these packages? 

2 A No, they did not. 

3 Q Okay. Now, are these packages 

4 required to be accompanied by shipping papers 

5 and listed on the 

6 A No. 

7 Q Okay. But does that mean they do 

8 not have to be inspected? 

9 A No. 

10 MS. CHANDLER-SNELL: Objection, 

11 Your Honor . That goes right to the very 

12 question. He's trying to ask her whether 

13 under the regulations alr carriers are 

14 required at the point of acceptance to inspect 

15 these shipments, not whether she is required 

16 under her job duties to inspect. The term 

17 "inspection" as she was submitted as an expert 

18 here was for her inspection of hazmat 

19 operations, not an interpretation of the CFR 

20 as it relates to what's required for alr 

21 carrler inspection at acceptance. 

22 JUDGE GOODWIN: I'll sustain that 

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1 objection to the question. 

2 MR. LOMAZOW: Right. 

3 BY MR. LOMAZOW: 

4 Q Agent Luscher, please turn to what 

5 has been previously marked as C5 for 

6 identification -- I'm sorry -- what has been 

7 previously entered into evidence as C5. 

8 A Okay. 

9 Q Okay. I'm looking again at what 

10 is marked as page two. Can you read again the 

11 first line next to "Preliminary Inspection"? 

12 A "Whoever first takes a declared 

13 dangerous goods package from the 

14 customer must conduct a 

15 preliminary inspection. 

16 "If the package appears to be in 

17 compliance, accept it on the 

18 condition that it pass a second 

19 inspection to be conducted by a 

20 dangerous goods specialist. 

21 Advise the customer that the 

22 dangerous goods specialist/agent 

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1 will inspect the package again to 

2 make sure that it does comply with 

3 the FedEx Express requirements." 

4 Q Okay. So it's saying whoever 

5 takes a dangerous a declared dangerous 

6 goods package from the customer must conduct 

7 a preliminary inspectioni right? 

8 A Yes. 

9 Q Is biological substances Category 

10 B, a dangerous good? 

11 A Yes. 

12 Q Therefore, under this 

13 interpretation, FedEx's own interpretation --

14 MS. CHANDLER-SNELL: Objection to 

15 leading, Your Honor. 

16 BY MR. LOMAZOW: 

17 Q should they have performed a 

18 preliminary inspection? 

19 JUDGE GOODWIN: Sustained. 

20 BY MR. LOMAZOW: 

21 Q Agent Luscher, based on the 

22 language next to "Preliminary Inspection," 

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1 what, if anything, should FedEx have done with 

2 this package when it was received? 

3 MS. CHANDLER-SNELL: Your Honor, 

4 I'm objecting because she's being -- she's 

5 being asked to interpret a policy that's in a 

6 FedEx manual on a process that she can't have 

7 knowledge about. She's not being asked to 

8 observe or talk about what she's seen us do, 

9 what she believes unless she has actual 

10 knowledge of that, she's asked to interpret 

11 what our policy means for a specific 

12 substance. 

13 JUDGE GOODWIN: Sustained. 

14 MR. LOMAZOW: Okay. 

15 BY MR. LOMAZOW: 

16 Q As far as you know, based on your 

17 investigations, does the DG specialist for 

18 FedEx look at these particular packages? 

19 A No. 

20 Q Okay. Please turn to what has 

21 been marked as C13. 

22 A Okay. 

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1 Q Okay. Do you recognize this 

2 document? 

3 A I do. 

4 Q And what is this document? 

5 A This is an excerpt from 49 CFR, 

6 Part 173.199. 

7 Q Okay. Is this a publicly8 available document? 

9 A Yes, it lS. 

10 MR. LOMAZOW: Your Honor, I offer 

11 what has been marked as C13 for identification 

12 into evidence as C13. 

13 MS. CHANDLER-SNELL: No 

14 objections, Your Honor. 

15 JUDGE GOODWIN: Okay. Let me 

16 point out that well, the Court has no 

17 problem with you admitting this particular 

18 portion of the CFR. The Court in any case 

19 will independently review the law in force at 

20 the time of any violation in any case. So the 

21 Court will consider this informational, but 

22 the Court will take sua sponte -- will take 

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1 judicial notice of the appropriate regulation 

2 applicable at the time of any violation. 

3 So C13 for informational purposes 

4 is admitted as C13. 

5 BY MR. LOMAZOW: 

6 Q Agent Luscher, have you used this 

7 interpretation to guide you In your 

8 investigations? 

9 A I do. 

10 Q Okay. And this interpretation 

11 before we get into it, this interpretation is 

12 regarding what, what kind of hazardous 

13 materials? 

14 A This is in regards to Category B, 

15 infectious substances. 

16 Q Okay. Can you read the very first 

17 sentence of the first paragraph? 

18 A Sure. 

19 "Category B infectious 

20 substances. Except as provided in 

21 this paragraph (a), Category B 

22 infectious substances are excepted 

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1 from all other requirements of 

2 this subchapter when offered for 

3 transportation or transported In 

4 accordance with this section." 

5 Q So based on your review of the 

6 of that sentence, what does that mean to you? 

7 MS. CHANDLER-SNELL: Objection, 

8 Your Honor. 

9 JUDGE GOODWIN: Sustained. 

10 BY MR. LOMAZOW: 

11 Q Now, under this, are Category B, 

12 infectious substances, not required to be 

13 inspected? 

14 MS. CHANDLER-SNELL: Objection, 

15 Your Honor. The proper foundation has not 

16 been 

17 JUDGE GOODWIN: What was the --

18 restate the question. 

19 BY MR. LOMAZOW: 

20 Q Under this -- under this CFR, are 

21 Category B infectious substances required to 

22 be inspected prior to air transportation? 

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1 JUDGE GOODWIN: Sustained. 

2 BY MR. LOMAZOW: 

3 Q You use this to guide you in your 

4 in your invest igat ions involving or 

5 inspections involving biological substances 

6 Category B? 

7 A Yes, I do. 

8 Q Okay. And that's a regulated 

9 hazardous material; correct? 

10 A Yes. Yes, it is. 

11 Q Okay. Is there anything here --

12 actually, strike that. 

13 Agent Luscher, what 1S needed to 

14 meet the regulation here in terms of -- what 

15 1S needed to make biological substance 

16 Category B package a properly-marked package? 

17 MS. CHANDLER-SNELL: Your Honor, 

18 I'm objecting again. I think that's an 

19 interpretation of the regulation. I think he 

20 can ask what she inspects for and what she 

21 looks for. But as far as what's needed to 

22 make it comply with the statute, I think that 

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1 that goes beyond what she's been qualified to 

2 testify for. 

3 MR. LOMAZOW: Well, Your Honor, 

4 she's a hazardous materials inspector. She 

5 states that she uses this regulation in order 

6 to conduct her inspections of hazardous 

7 materials involving biological substances 

8 Category B. Obviously, she's going to know 

9 what the rule says. 

10 JUDGE GOODWIN: Tha t wasn't the 

11 question. The objection to the question is 

12 sustained. We're going to take a ten-minute 

13 break at this point. I'm going to instruct 

14 the witness not to discuss your testimony wi th 

15 anybody during the pendency of this hearing. 

16 We're going to go off the record. I show that 

17 it's 14 minutes of 11:00. We'll come back on 

18 the record at about six minutes before. The 

19 Court generally breaks around 12-ish for 

20 lunch, and then we take an hour-and-a-half 

21 break. We'll take a break around 3:00. 

22 As I said in the hearing notice 

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1 and this lS true of any hearing -- we try to 

2 conclude the hearing at 4:30. The reason In 

3 some courthouses, the CSOs go on overtime at 

4 5: 00. And if we break at 4: 30, that gives you 

5 time to get out of the courthouse. I don't 

6 know if any of us has the budget to pay for 

7 the CSOs. So that's a generic comment for 

8 this thing. 

9 If we had started at 9:00, I would 

10 have taken a break at 10:30, so that's what 

11 we'll shoot for. So we generally break for 15 

12 minutes about this time. We'll break for ten. 

13 We'll break for ten or 15 in the afternoon so 

14 that we can all grab that cup of java. 

15 By the way, you can't bring any 

16 liquids into the building. 

17 MS. CHANDLER-SNELL: We learned 

18 that the hard way. 

19 JUDGE GOODWIN: Unless you know 

20 somebody. They even stopped my wife, so 

21 we'll go off the record and we'll come back on 

22 the record at five minutes of. 

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1 (Whereupon, at 10:45 a.m. recess 

2 off the record until 11:10 a.m.) 

3 JUDGE GOODWIN: Back on the 

4 record. 

5 MR. LOMAZOW: Your Honor, I 

6 understand that I forgot to enter in two of 

7 the exhibits in evidence, starting C5 and 

8 C12. I will offer both into evidence as 

9 People's -- as the --

10 JUDGE GOODWIN: I've got C5 as --

11 I show C5 as admitted. I don't show C6 was 

12 admitted. 

13 MR. LOMAZOW: Then I offer C --

14 what has been marked as C6 for identification 

15 into evidence as C6. 

16 MS. CHANDLER-SNELL: No 

17 objections. 

18 JUDGE GOODWIN: C6 (sic) is 

19 received into evidence as C6. We talked about 

20 you're not going to admit photograph 7, 8, 9, 

21 10, II, and 12 of 16. 

22 have not been offered. 

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1 MR. LOMAZOW: Right. 

2 JUDGE GOODWIN: I show Exhibits 8 

3 and 9 are admitted. I don't' show -- I show 13 

4 was admitted. I don't show anything else as 

5 admitted. 

6 MR. LOMAZOW: Your Honor, I will 

7 offer what has been marked as C12 for 

8 identification into evidence as C12. 

9 JUDGE GOODWIN: I'll give you a 

10 chance to look. 

11 MS. CHANDLER-SNELL: On C12, Your 

12 Honor, I talked to Counsel at break and he 

13 agrees that the handwritten portion at the 

14 bottom of C12 can be redacted. 

15 JUDGE GOODWIN: Okay. Normally 

16 what the Court does -- and I meant to mention 

17 that -- unless there's agreement, the Court 

18 normally ignores the handwritten part. So if 

19 it's not confidential material, the Court will 

20 just ignore anything that is not any 

21 obvious handwritten notes. 

22 MR. LOMAZOW: Okay. There's 

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1 nothing there confidential. 

2 MS. CHANDLER-SNELL: Okay. Thank 

3 you, Your Honor. 

4 MR. LOMAZOW: And just to be 

5 clear, was C11 -- do you show C11 as being 

6 admitted, Your Honor? 

7 JUDGE GOODWIN: Hang on. All 

8 right. So C12 for identification is received 

9 as C12 with the caveat that we will ignore 

10 anything that's obviously handwritten, which 

11 is essentially the bottom half of the page . 

12 C11 was admitted. And I have --

13 so Complainant's 10 was admitted and 

14 Complainant's 11 was admitted. And that's 

15 where I am at this point. 

16 BY MR. LOMAZOW: 

17 Q Agent Luscher, please turn back to 

18 C7, which is the photographs. And turn to the 

19 photograph that is marked page 13 of 16 at the 

20 bottom. 

21 A Okay. 

22 Q What does this photograph 

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1 represent? 

2 A This is a -- the front side of a 

3 Priority Overnight shipment that was found to 

4 be not in compliance with 49 CFR 173.199 and 

5 what side that was, the UN 3373 was not in the 

6 diamond-on-point marking nor did it have a 

7 biological substance Category B proper 

8 shipping name on it. 

9 Q And just to be clear, if the 

10 package does have a biological substances 

11 Category B, does that have to be near the 

12 UN 3373 or can it be anywhere else on the 

13 package? 

14 A It lS supposed to be adjacent to 

15 the UN 3373 marking. 

16 Q Okay. And just so I understand 

17 what you said, the UN 3373 as per 173.199 has 

18 to be a diamond enclosed marking; is that the 

19 best way to put it? 

20 A Yes, it does. 

21 Q Okay. 

22 MR. LOMAZOW: Your Honor, I offer 

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1 into evidence what has been marked as C7, page 

2 13 of 16. 

3 MS. CHANDLER-SNELL: No 

4 objections, Your Honor. 

5 BY MR. LOMAZOW: 

6 Q Agent Luscher, please turn to the 

7 next 

8 JUDGE GOODWIN: Okay. Exhibit 7, 

9 3 of -- 13 of 16 is admitted. Go ahead. 

10 MR. LOMAZOW: Sorry, Your Honor. 

11 BY MR. LOMAZOW: 

12 Q Agent Luscher, please turn to the 

13 next photograph, which is marked page 14 of 16 

14 at the bottom. 

15 A Okay. 

16 Q What does this photograph 

17 represent? 

18 A This is the back side of the same 

19 package and it also shows that it was not 

20 marked as a biological substance Category B, 

21 even when the front had indicated that it was 

22 a UN 3373. 

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1 MR. LOMAZOW: Okay. Your Honor, 

2 People or the Agency offers what has been 

3 marked as C7, page 14 of 16 for identification 

4 into evidence as C7, page 14 of 16. 

5 MS. CHANDLER-SNELL: No 

6 objections, Your Honor. 

7 JUDGE GOODWIN: Complainant's 7, 

8 14 of 16 is admitted as Complainant's 6, 14 of 

9 16. 

10 BY MR. LOMAZOW: 

11 Q Agent Luscher, just real briefly 

12 turn back to the photograph marked page 13 of 

13 16. 

14 A Okay. 

15 Q Who is the -- was there a shipper 

16 indicated for this package? 

17 A Yes. Checker's, Inc. out of 

18 Sidney, Montana. 

19 Q Okay. And--

20 A They were the shipper. 

21 Q -- is there some kind of tracking 

22 number associated with this package? 

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1 A Yes, it is. It's 8647 4191 6794. 

2 Q And what is that tracking number 

3 associated with? 

4 A That 1S associated with this 

5 package and the movement of this package. 

6 It's a number assigned for FedEx. 

7 Q Is that a FedEx tracking number? 

8 A Yes. 

9 Q Okay. Agent Luscher, please turn 

10 to what is marked as page 15 of 16 at the 

11 bottom . 

12 A Okay. 

13 Q What is the significance of this 

14 photograph? 

15 A This was the second package from 

16 Checker's, Inc. also noticed on the same day, 

17 titled Overnight Saturday delivery shipment. 

18 That had the same issue the improper 

19 marking of the UN 3373 without the proper 

20 marking and without the proper shipping name 

21 of biological substances Category 

22 B . 

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1 Q And for the what was wrong, 

2 once again, with the for this particular 

3 package, what was the what was wrong with 

4 the UN 3373? 

5 A It is not a proper diamond-shaped 

6 label marking. 

7 Q Okay. Is that per 173.199? 

8 A Yes, it is -- 173.199(a) (5). 

9 Q Okay. 

10 MR. LOMAZOW: Your Honor, I offer 

11 what has been marked as C7, page 15 of 16 for 

12 identification into evidence as C7, page 15 of 

13 16. 

14 MS. CHANDLER-SNELL: No 

15 objections, Your Honor. 

16 JUDGE GOODWIN: C7, 15 of 16 is 

17 received. 

18 MR. LOMAZOW: Thank you. 

19 BY MR. LOMAZOW: 

20 Q Agent Luscher, please turn to the 

21 last photograph, which is marked page 16 of 16 

22 at the bottom. 

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1 A Okay. 

2 Q What does this photograph 

3 represent? 

4 A This is the back side of the same 

5 shipment from Checker's, Inc., FedEx tracking 

6 number 8548 5793 6503. It is -- I just took 

7 a picture of the back of this showing that, 

8 again, there's no markings of it as being a 

9 biological substance Category B even though 

10 that the front had indicated that it was a UN 

11 3373 . 

12 Q And UN 3373, is that a hazmat 

13 identification number? 

14 A Yes, it is. 

15 Q And that indicates the presence of 

16 what kind of hazmat? 

17 A A Category 6.2 biological 

18 substance Category B. 

19 MR. LOMAZOW: Your Honor, I offer 

20 what has been marked as C7, page 16 of 16 for 

21 identification into evidence as C7, page 16 of 

22 16. 

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1 MS. CHANDLER-SNELL: No 

2 objections, Your Honor. 

3 JUDGE GOODWIN: C7, 16 of 16 1S 

4 received. 

5 MR. LOMAZOW: Okay. 

6 BY MR. LOMAZOW: 

7 Q Agent Luscher, please turn to what 

8 has been marked as C14 for identification. 

9 A C14? 

10 Q Yes. 

11 A Okay. 

12 Q What 1S this document? 

13 A This was an interp. by the 

14 Pipeline and Hazardous Materials Safety 

15 Administration, Reference No. 07-0087. This 

16 was provided to me by FedEx in their let ter of 

17 response. 

18 Q Okay. Please read the last 

19 sentence at the bottom of this page beginning 

20 with "A carrier is not required " 

21 A "A carrier is not required to 

22 question the offeror on whether or 

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1 not a package marked 'DIAGNOSTIC 

2 SPECIMEN' contains a Division 6.2 

3 material i however, it may be in 

4 the carrier's best interest to do 

5 so to ensure he or she is not 

6 inadvertently transporting an item 

7 meeting the definition of a 

8 hazardous material." 

9 Q Diagnostic specimen, is that 

10 currently regulated? 

11 A No . 

12 Q Is "Diagnostic Specimen" marked on 

13 these two packages that you observed? 

14 A No. 

15 Q What was marked on these two 

16 packages that you observed? 

17 A UN 3373. 

18 Q Does that indicate the presence of 

19 a regulated hazardous material? 

20 A Yes. 

21 Q Okay. 

22 MR. LOMAZOW: Your Honor, I offer 

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1 what has been marked as C14 for purposes of 

2 identification into evidence as C14. 

3 MS. CHANDLER-SNELL: No 

4 objections, Your Honor. 

5 JUDGE GOODWIN: C14 for 

6 identification is received into evidence as 

7 C14. 

8 BY MR. LOMAZOW: 

9 Q Agent Luscher, please turn to what 

10 has previously been entered into evidence as 

11 C9, which is the FedEx response to the letter 

12 of investigation. 

13 A Okay. 

14 Q Did Federal Express respond to --

15 in your letter of investigation, did Federal 

16 Express respond to these particular packages 

17 marked --

18 A Yes. 

19 Q - - UN 3373? 

20 A Yes, they did. 

21 Q What was the general response? 

22 A General response 1S that they 

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1 don't -- these types of shipments do not need 

2 a shipper's declaration, label, specification, 

3 package marking, or notification to the pilot4 in-command. 

5 Q Okay. And do they provide any 

6 corrective measures? 

7 A They said that they had provided 

8 an updated some updated updated 

9 information on their website regarding UN 3373 

10 shipments. 

11 Q Is that above what Title 49 would 

12 require? 

13 A No. 

14 Q Okay. Agent Luscher, please turn 

15 to what has previously been entered into 

16 evidence as C11, and this is Corporate Air's 

17 response to the letter of investigation. 

18 A Okay. 

19 Q Did Corporate Air address these 

20 two packages marked UN 3373 in their response? 

21 A No, they did not. 

22 Q Okay. Agent Luscher, did you 

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ultimately put together an EIR, enforcement 

investigation report, for your -- for -- did 

you ultimately put together an enforcement 

investigation report for this case? 

A Yes. 

Q Okay. And once you prepare an 

enforcement investigation report, where does 

it go? 

A It goes to my supervisor for 

review and approval. 

Q Okay. And do you make the 

ultimate determination of a sanction that is 

proposed in any given case? 

A Not the ultimate, no. 

Q Okay. And as part of your 

training, are you required to be familiar with 

the Administrator's Sanction Guidance? 

A Yes. 

Q Okay. Please turn to what 1S 

marked as CIS for identification. What is 

this document? 

A This is an excerpt from FAA Order 

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1 2150.3B. It's dated October 1st, 2007. It's 

2 the Appendix C, which is the Sanction Guidance 

3 for the Hazardous Materials Enforcement. 

4 Q Is this a publicly-available 

5 document? 

6 A Yes, it is. 

7 MR. LOMAZOW: Your Honor, I ask 

8 that what has been marked for identification 

9 as C15 be entered into evidence as C15. 

10 MS. CHANDLER-SNELL: No 

11 objections, Your Honor. 

12 JUDGE GOODWIN: Okay. The Court 

13 generally takes judicial notice of 2150.3B. 

14 I'm aware that Mr. Morris and a lot -- and 

15 most of the FAA attorneys like to admit them. 

16 It doesn't make any difference to me. I'll 

17 take judicial notice but, again, I have the 

18 same caveat that I did before. The Court will 

19 take judicial notice of the Hazardous 

20 Materials Enforcement Regulations in force at 

21 the time of the applicable violation. 

22 The other comment I make about 

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1 2150 is it makes the file thicker, but I fully 

2 understand why the FAA attorneys like to admit 

3 them, and the Court doesn't care either way. 

4 I'll admit Complainant's 15 as Complainant's 

5 15 being the Sanction Guidance dated October 

6 1st, 2007. 

7 MR . LOMAZOW : Thank you, Your 

8 Honor. 

9 BY MR. LOMAZOW: 

10 Q Agent Luscher, to the best of your 

11 knowledge or belief, did the Agency follow 

12 this Sanction Guidance? 

13 A Yes. 

14 Q And just so we understand, does 

15 this Sanction Guidance go through an analysis 

16 to determine what an appropriate sanction is? 

17 A It does. 

18 Q Okay. And has the Administrator 

19 put out three categories of or three 

20 categories of risk categories? 

21 A Yes, it has. 

22 Q Okay. Please turn to -- at the 

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1 bottom of C2 -- I'm going to refer to page 

2 numbers as just 1, 2, 3, 4, 5, 6, 7. 

3 JUDGE GOODWIN: Okay. 

4 BY MR. LOMAZOW: 

5 Q Please turn to page 17. 

6 A Okay. 

7 Q What is the risk category for the 

8 Class 5.1 package you observed on May 12, 

9 2008? 

10 A For the 5.1, it falls under 

11 Category A, Maximum Weight. 

12 Q Okay. And is that because the 

13 shipper listed it as a Packing Group lIon the 

14 shipping papers? 

15 A Yes. That's correct. 

16 Q And what is the risk category for 

17 the UN 3373 packages? 

18 A It falls under Category B, 

19 Moderate Weight. 

20 Q Okay. So in this case, there are 

21 three improper acceptance violations, one for 

22 the Class 5.1 and two for the UN 3373 

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1 packages? 

2 A Yes. 

3 Q Okay. And are there also three 

4 improper inspection violations for the same 

5 packages as well? 

6 A Yes. 

7 Q Okay. Please turn to the matrix 

8 for air carrier violations on C-13. Under 

9 this matrix, what group a1r carrier would 

10 FedEx be considered? 

11 A FedEx 1S a Group I air carrier. 

12 Q Okay. And is that not only by the 

13 number of aircraft but by the size of their 

14 revenue? 

15 A Yes. 

16 Q As a Group I a1r carrier, what 1S 

17 the sanction range for improper acceptance 

18 violations? 

19 A Five thousand to 32,500. 

20 Q Okay. And what is the sanction 

21 range for improper inspections? 

22 A Ten thousand to 32,500. 

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1 Q Okay. And under the same matrix, 

2 what is the sanction range for improper 

3 storage of hazmat aboard an aircraft? 

4 A For improper storage, it's 10,000 

5 through 32,500. 

6 Q Okay. And, last, under the 

7 matrix, what is the sanction range for failure 

8 to provide notice to the pilot-in-command? 

9 A That would be 5,000 through 

10 16,200. 

11 Q Okay. And before we continue on 

12 with this Sanction Guidance, please turn to 

13 C16 for identification. What is this 

14 document? 

15 A Under C16? 

16 Q Yes. 

17 A This is a record review of Federal 

18 Express's violation history for some more 

19 violations. 

20 Q So in 2008, how far did you go 

21 back? 

22 A I went back five years. 

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1 Q Okay. And why only five years? 

2 A It kind of gives us a general idea 

3 of what's been their violation history in the 

4 last five years and it's also per our 

5 procedures. 

6 Q Okay. And did you consider those 

7 in determining the sanction against FedEx? 

8 A Yes. 

9 Q Okay. Agent Luscher, I'm going to 

10 have you turn back to C15 and to the matrix 

11 guidelines under C13 -- actually, I'm sorry . 

12 MR. LOMAZOW: Judge, what lS 

13 marked as C16 for identification, I'm going to 

14 ask that it be entered into evidence as C16. 

15 JUDGE GOODWIN: Did you move to 

16 admit C15 or we already did? 

17 MR. LOMAZOW: I think we already 

18 admitted it but, if not, I'll ask that it be 

19 admitted as well. 

20 JUDGE GOODWIN: I didn't hear the 

21 last part of that. 

22 MR. LOMAZOW: I'm sorry. I think 

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1 I did ask for C15 to be admitted. 

2 JUDGE GOODWIN: Yeah. C15 was 

3 admitted. 

4 MR. LOMAZOW: Yeah. And I'm going 

5 to ask for C16 to be admitted as well. 

6 JUDGE GOODWIN: Oh, I'm sorry 

7 16. 

8 MR. LOMAZOW: Yes. 

9 MS. CHANDLER-SNELL: No 

10 objections, Your Honor. 

11 JUDGE GOODWIN: Complainant's 16 

12 for identification is received into evidence. 

13 MR. LOMAZOW: Okay. 

14 BY MR. LOMAZOW: 

15 Q Okay. Now, based on all the 

16 factors, is there a totality of the 

17 circumstances type of analysis done? 

18 A Yes, there lS. 

19 Q Okay. So, in other words, there's 

20 no mathematical formula but there's a range 

21 that the Administrator provides in exercising 

22 the Administrator's judgment i is that correct? 

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1 A That's correct. 

2 Q Okay. And to reiterate, In this 

3 case, slnce we have three lmproper 

4 acceptances, the sanction range would be a 

5 total of 15,000 to 97,500; is that correct? 

6 A Yes. 

7 Q Okay. And since there are three 

8 improper inspections, the sanction range would 

9 be 3 0, 000 

10 MS. CHANDLER-SNELL: I obj ect to 

11 leading, Your Honor. 

12 JUDGE GOODWIN: Yes. Sustained as 

13 leading. 

14 MR. LOMAZOW: Okay. 

15 BY MR. LOMAZOW: 

16 Q All right. Based on the total 

17 sanctions based on the sanctions for 

18 improper inspections and improper -- improper 

19 acceptance, where does 45, 000 fallon the 

20 sanction range? 

21 A Pretty much at the bottom, low 

22 range. 

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1 Q And did you prepare an EIR for 

2 Corporate Airlines using the same Sanction 

3 Guidance? 

4 A I did. 

5 Q Okay. Under the Sanction 

6 Guidance, what type of alr carrler lS 

7 Corporate Air? 

8 A They are a Group II air carrier. 

9 Q Once again, is that by virtue of 

10 their pilots and number of aircraft? 

11 A Yes. 

12 Q Okay. And is there any difference 

13 in the calculations for a Group I as compared 

14 for a Group II as compared to a Group I air 

15 carrier? 

16 A No. 

17 Q Okay. So the same analysis was 

18 done? 

19 A Yes. 

20 Q Okay. And, once again, where does 

21 45,000 fallon the sanction range? 

22 A Very low range. 

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1 Q Okay. 

2 MR. LOMAZOW: Your Honor, no 

3 further questions. 

4 JUDGE GOODWIN: Let me ask you 

5 this: How long do you think your cross will 

6 take? 

7 MS. CHANDLER-SNELL: Frankly, Your 

8 Honor, I'm very long-winded. I would expect 

9 a while. 

10 JUDGE GOODWIN: Why don't we - -

11 then why don't we take a break now for lunch . 

12 MS. CHANDLER-SNELL: That would be 

13 fine with me, Your Honor. 

14 JUDGE GOODWIN: And come back. 

15 It's now 11:30. Since we're going to have to 

16 leave the building and come back in through 

17 securi ty, let's be back - - try to be back 

18 about 1:00. Once we get everybody back, we'll 

19 start. I'm going to instruct the wi tness that 

20 you're not to discuss your testimony with 

21 anybody during the pendency of the hearing. 

22 You're under oath and you're in the middle of 

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1 your testimony, and the next thing that will 

2 happen is Ms. Snell will have an opportunity 

3 to ask you some questions. So it's important 

4 that you not discuss anything. I don't care 

5 if you talk about baseball games, football 

6 games, or anything else, but you cannot talk 

7 about your testimony in this case. 

8 So we're going to go off the 

9 record. One of us will be -- either the court 

10 reporter or I will be in the hearing room, so 

11 feel free to leave whatever you want to here . 

12 MS. CHANDLER-SNELL: Thank you, 

13 Your Honor. Your Honor, may I clarify one 

14 issue on 

15 JUDGE GOODWIN: Sure. 

16 MS. CHANDLER-SNELL: who Ms. 

17 Luscher can speak with. Does that include 

18 that she cannot confer with the FAA attorney 

19 because she is still under oath and on the 

20 stand? 

21 JUDGE GOODWIN: She's under oath. 

22 She shouldn't talk with anybody about 

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1 anything. 

2 MS. CHANDLER-SNELL: Thank you, 

3 Your Honor. 

4 JUDGE GOODWIN: She shouldn't talk 

5 with anybody about her testimony, what she 

6 said or what she may potentially say. 

7 MS. CHANDLER-SNELL: Yes, Your 

8 Honor. Thank you. 

9 JUDGE GOODWIN: Okay. We're off 

10 the record. 

11 (Whereupon, at 11:32 a.m. off the 

12 record for a lunch break until 1:00 p.m.) 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

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1 AFTERNOON SESSION 

2 1:05 p.m. 

3 JUDGE GOODWIN: Back on the 

4 record. Remind the witness that you're still 

5 under oath. 

6 Counsel. 

7 MR . LOMAZOW : Yes, Your Honor. 

8 We're done with our questioning. 

9 JUDGE GOODWIN: Okay. 

10 MS. CHANDLER-SNELL: May I begin 

11 cross, Your Honor? 

12 JUDGE GOODWIN: Yes. 

13 MALLORY LUSCHER, COMPLAINANT'S WITNESS, 

14 PREVIOUSLY SWORN 

15 CROSS EXAMINATION 

16 BY MS. CHANDLER-SNELL: 

17 Q Remind me again of your last name. 

18 Is it Luscher or Lusching? 

19 A Luscher. 

20 Q Okay. 

21 A Do you want me to spell that? 

22 Q No. 

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1 A Okay. 

2 Q No. The court reporter may, but 

3 I've got it. In going through the exhibits 

4 today, In my cross-examination of you, I 

5 intend to attempt to go in the same order that 

6 the FAA attorney did as much as possible. 

7 A Okay. 

8 Q Now, go back to -- and you have 

9 the exhibits, I believe -- Exhibit Cl. 

10 A Yes. 

11 Q Now, I believe in your testimony 

12 you had stated that you had noticed a package 

13 that was inappropriately stowed as the offload 

14 procedure was going oni is that correct? 

15 A That's correct. 

16 Q But In your -- In your statement, 

17 you actually state that Agent Kenny was the 

18 one who first noticed the package. Do you 

19 recall who noticed it first? 

20 A He did. 

21 Q Okay. Were you both watching the 

22 offload at the same time? 

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1 A Yes. I was up towards the front 

2 of the aircraft talking with the pilot. 

3 Q Okay. And so when you were 

4 talking wi th the pilot, was that shipment 

5 already being offloaded? 

6 A That was coming off. I could see 

7 it coming down the belt. 

8 Q Okay. And did Agent Kenny call 

9 you over or did you notice at that point that 

10 there was a problem? 

11 A He called me over and made sure 

12 that I got the inbound or the pilot 

13 notification form. 

14 Q Okay. Now, looking through those 

15 exhibits at C3, --

16 A Okay. 

17 Q that aircraft that's noted 

18 there, N933FE, that is the only aircraft that 

19 you noted any DG discrepancies in the case 

20 that we're on here today; correct? 

21 A For May 12th, yes. 

22 Q For May 12th. Okay. And on that 

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1 flight, the notification to pilot said that 

2 there was no DG onboard the flight; is that 

3 correct? 

4 A That 1S what it says. Yes. 

5 Q Now, you agree that a UN 3373 

6 shipment wouldn't have been declared on that 

7 NOPIC anyway; correct? 

8 A Are we talking about the 3373 or 

9 the 2428? 

10 Q The 3373. 

11 A Okay. That wouldn't have been on 

12 this on that flight. 

13 Q That wasn't on that flight to 

14 begin with? 

15 A Huh-uh. 

16 Q Okay. 

17 A No. 

18 Q It was a different day? 

19 A Right. 

20 Q Okay. So the only one that you 

21 are alleging should have been included on the 

22 exhibit 1n C3 is the oxidizer shipment; is 

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1 that right? 

2 A Yes, ma'am. 

3 Q Okay. The oxidizer shipment, who 

4 did you say the shipper was for that shipment? 

5 A BioScience Laboratories. 

6 Q Okay. And you had contact with a 

7 woman, I believe Shayla Cox, at that 

8 laboratory? 

9 A Yes, I did. 

10 Q Okay. So you did your own follow11 up with the shipper in addition to what FedEx 

12 may have done; is that right? 

13 A Absolutely. 

14 Q And In your conversations with 

15 her, she provided the MSDS that's also been 

16 entered as an exhibit? 

17 A Actually, I believe it was In the 

18 shipment. 

19 Q Okay. Did you look at the MSDS 

20 then when you had the shipment in front of 

21 you? 

22 A After -- after we had opened it 

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1 all up and was looking at everything, yes, 

2 Q Okay. And at that point, were you 

3 able to basically verify that the shipment did 

4 not contain a regulated commodity? 

5 A That's what the MSDS said, but 

6 then I had wanted to have the conversations 

7 with Ms. Cox so that we could clarify it. 

8 Q Okay. And in relation to the time 

9 that you were at the ramp actually noting this 

10 violation, how long was it until you spoke 

11 with Ms. Cox at the laboratory? 

12 A It was either that night or the 

13 next day. I don't have that file in front of 

14 me. 

15 Q Okay. Pretty shortly thereafter? 

16 A Oh, yes. 

17 Q Okay. 

18 A Yes. 

19 Q And you feel confident, based on 

20 your conversation with her and the MSDS, that 

21 the commodity was not required to be 

22 regulated; is that right? 

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1 A From what I could tell. I'm 

2 not -- I don't classify -- I don't classify 

3 hazmat. 

4 Q Okay. Well, are you familiar with 

5 any - - any ci tation or let ter of investigation 

6 that was issued to the shipper? 

7 A Yes. 

8 MR. LOMAZOW: Objection, Your 

9 Honor. That's not relevant here. 

10 JUDGE GOODWIN: Overruled. 

11 BY MS. CHANDLER-SNELL: 

12 Q And did you yourself lssue that 

13 letter of investigation to the shipper? 

14 A I did. 

15 Q Okay. In that letter of 

16 investigation, did you cite -- if you recall, 

17 did you cite any provisions in the CFR that 

18 deal with not properly marking and labeling a 

19 shipment that was required to have a hazard 

20 label? 

21 A Yes. 

22 Q Okay. Is it also a violation for 

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1 a shipper to put is it a violation for a 

2 shipper to put a hazard label on something 

3 that is does not require one? 

4 A That is correct. Yes. 

5 Q Okay. Did you -- In your letter 

6 of investigation, did you also cite the 

7 shipper under that provision? 

8 A Yes. 

9 Q Okay. Do you recall at the 

10 conclusion of your investigation in dealings 

11 with the shipper if it was decided upon which 

12 type of violation had occurred? 

13 MR. LOMAZOW: Objection, Your 

14 Honor. That's a completely separate case. 

15 It's not relevant to the facts at issue here. 

16 MS. CHANDLER-SNELL: Well--

17 JUDGE GOODWIN: Overruled. 

18 MS. CHANDLER-SNELL: Thank you, 

19 Your Honor. 

20 THE WITNESS: I'm sorry. Repeat 

21 it. 

22 II 

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1 BY MS. CHANDLER-SNELL: 

2 Q In your when you eventually 

3 ended your investigation of the shipper and 

4 settled that matter, did you conclude that 

5 they should be cited -- was the conclusion of 

6 the case that they were cited for putting a 

7 non-hazardous material with a hazard label on 

8 it, or were they cited for improperly 

9 declaring a hazardous good? 

10 A They were cited for trying to ship 

11 a hazmat shipment that was not hazmat and that 

12 they did they did mark it, label it, 

13 classify it, and declare it as such, even 

14 though it was not. 

15 Q Okay. So at the end of the day 

16 with your dealing with the shipper, what they 

17 were cited for was putting a item that didn't 

18 have to be regulated with a hazard label? 

19 A Correct. 

20 Q Okay. And you agree that the 

21 determination is on the shipper as to whether 

22 something is hazmat or is not hazmat? 

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1 A I do agree. 

2 Q Okay. So if you'll look at the 

3 MSDS and, actually, I think there are two 

4 MSDSs in Exhibit C6, both of those show that 

5 the item shipped did not require any hazard 

6 label, and that's consistent with your 

7 conclusion of the investigation and case 

8 against the shipper, that the item shipped did 

9 not require a hazard label? 

10 A That's correct. 

11 Q And particularly the label on this 

12 package was an oxidizer label; right? 

13 A Yes. 

14 Q But the item that was shipped did 

15 not require an oxidizer label? 

16 A That's correct. 

17 Q If you will look at the pictures 

18 under C7, please. 

19 A Okay. 

20 Q For C7, picture 1 of 16, the only 

21 thing visibly wrong with that picture is that 

22 there was no proper shipping name on the side 

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1 of the box; is that correct? 

2 A That's correct. 

3 Q Okay. And that proper shipping 

4 name should have been listed near the UN 

5 number; is that right? 

6 A Yes. 

7 Q Okay. Now, if you'll turn to in 

8 the same exhibit C7 1 -- I'm sorry -- 2 of 16. 

9 Now, that picture depicts the UN 

10 number on the top right-hand portion of that 

11 side of the box. But given that picture 1 

12 shows that it had the UN number on that side, 

13 there wasn't a requirement that the UN number 

14 be on this side; is that right? 

15 A That's correct. 

16 Q Okay. And there is no requirement 

17 for the glass label that's on that side; 

18 correct? 

19 A That's correct. 

20 Q The arrows are required for 

21 shipping this; is that correct? 

22 A For shipping liquid, yes. 

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1 Q Okay. And was this determined 

2 well, it was determined to be a liquid. 

3 A Yes. 

4 Q And, again, now move to C7, page 3 

5 of 16. 

6 A Okay. 

7 Q In that picture, it shows yet 

8 another UN marking, the top right-hand corner, 

9 which is not required to be there; correct? 

10 A Correct. 

11 Q Okay. And then you have the words 

12 "ULine Hazardous Materials Packaging." That's 

13 not a regulatory requirement in any way, is 

14 it? 

15 A No. 

16 Q Okay. And then at the bottom 

17 left-hand side, you have a UN with a circle 

18 around it. What does that mean? 

19 A That shows that it 1S a UN 

20 specification packaging. 

21 Q Okay. Now, UN specification 

22 packaging can be used for hazardous materials 

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1 and for non-hazardous materialsi correct? 

2 A Correct. 

3 Q So the fact that you see that 

4 marking on a box you agree doesn't necessarily 

5 indicate that the contents are haz? 

6 A Correct. 

7 Q Okay. And then you have the words 

8 "Meets ISTA Procedure lA Requirements." Do 

9 you know what that means? 

10 A It meets some international -- I 

11 don't know what ISTA means specifically, no, 

12 but it does supposed to meet their 

13 Procedure lA requirements. 

14 Q Okay. So that's not something 

15 that's required under U.S. hazmat 

16 A No. 

17 Q -- regulations? 

18 A No. 

19 Q Okay. So that's -- on that side 

20 of the box then -- strike that. 

21 If you'll move to C7, page 4 of 16 

22 or Exhibit 4 of 16. Again, you've got the UN 

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1 number that's not required on that side of the 

2 box; correct? 

3 A That's correct. 

4 Q You have the orientation arrows 

5 that are required only if the contents are 

6 liquid; correct? 

7 A Correct. 

8 Q But orientation arrows can be used 

9 whether you have hazmat or not; correct? 

10 A Correct. 

11 Q Okay. And the glass label, which 

12 isn't required by any u.s. regulations? 

13 A That's correct. 

14 Q On C7, page 5 of 16, on this 

15 portion of -- on this side of the box you see 

16 the emblem "Fragile." That's not required 

17 under any u. S. regulation for hazmat; correct? 

18 A Correct. 

19 Q Okay. And you've got "This Side 

20 up, " which lS not required under the 

21 regulations either; correct? 

22 A Correct. 

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1 Q Okay. And then you have "UN 4G 

2 Compliant Only When All Parts of Combination 

3 Packaging are Used and Assembled Properly." 

4 Now, is that required to be on 

5 there by regulation? 

6 A Not if it's not a hazardous 

7 material. No. 

8 Q If it is a hazardous material, is 

9 that phrase required to be on there? 

10 A No. 

11 Q Okay. And when it says UN 4G, 

12 that's not a UN shipping number; right? 

13 A No. 

14 Q Even though it says UN 4G kind of 

15 in the way that those other UN numbers were 

16 listed on the other side of the box. 

17 A No. Usually UN numbers have the 

18 two letters UN and then four numbers. 

19 Q Okay. 

20 A As a numerical, so there's 

21 there's not any letters after any number. 

22 Q So when -- if this shipment didn't 

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1 have the -- if there were -- if there were a 

2 brown box that had the UN 46 compliant 

3 language that's on this C7, page 5 of 16, if 

4 there were a brown box that had that language 

5 on there, that would in no way indicate that 

6 there was haz inside; correct? 

7 A Personally, it would make me think 

8 that there was. 

9 Q Okay. But the box could be used 

10 with that language on there even if it wasn't? 

11 A That's correct. 

12 Q Okay. And the reason it would 

13 make you think that is because it contains the 

14 UN reference --

15 A Uh-huh. Yes. 

16 Q -- which is sometimes considered 

17 an indicator perhaps. 

18 A Yes. 

19 Q Okay. But in this case, that UN 

20 isn't actually referencing a UN number at all. 

21 It's referencing packaging standards. 

22 A Correct . 

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1 Q Okay. And UN packaging standards 

2 are good for haz and not haz? 

3 A Correct. 

4 Q Okay. Exhibit C7, page 6 of 16, 

5 there's a lot of information on the bottom of 

6 that box. Can you tell me if any of that is 

7 required under the U.S. regs. for hazmat? 

8 A No. 

9 Q Okay. So some of that language 

10 that is important, some of it says "Used for 

11 4 - 1 Gallon Can Shipper," and then some of it 

12 actually has I think another spot where "IN" 

13 maybe is referenced - - it may be "UN" - - but 

14 none of that is required for shipping haz? 

15 A No. 

16 Q Okay. Let's go to Exhibit 

17 well, I'll tell you what. We'll just stick 

18 with that exhibit, C7, and let's go to page 13 

19 of 16; okay? 

20 A Okay. 

21 Q Now, in that picture, it shows UN 

22 3373 handwritten on the front of the clinical 

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1 pak; correct? 

2 A Correct. 

3 Q And the UN 3373 is not surrounded 

4 by a diamond label; is that correct? 

5 A That is correct. 

6 Q If this shipment had that -- if it 

7 was exactly the same but had a hand-drawn 

8 diamond around those letters, that UN 3373 

9 that's already on there, would that be -- in 

10 your course of inspection, would that be 

11 something that you would pullout? 

12 A Yes. 

13 Q Okay. And why would you do that? 

14 A Because there's certain 

15 specifications in 49 CFR 173.199 that 

16 discusses the approximate size of the diamond. 

17 So if it was the exact size, then it would be 

18 fine. 

19 Q Okay. But so what you're 

20 saying is you would check it and actually 

21 measure the diamond to see if it was the exact 

22 size as required? 

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1 A If I did -- if I did see this and 

2 it did have a handwritten, yes, I would. I do 

3 carry a measuring tape with me. 

4 Q Okay. Now, it lists the I 

5 believe you said the shipper of this one was 

6 Checker's, Inc. i lS that right? 

7 A That's correct. 

8 Q And you conducted -- as part of 

9 your investigation, you contacted that shipper 

10 to determine what the contents of the package 

11 were? 

12 A I did. 

13 Q Okay. And did that shipper verify 

14 that it was indeed a UN 3373 shipment? 

15 A No. 

16 Q Okay. What did they indicate to 

17 you? 

18 A They indicated that they used the 

19 wrong packaging. 

20 Q So lS it your testimony then that 

21 the contents of this shipment weren't actually 

22 a regulated substance? 

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1 A My testimony is that it was 

2 improperly marked. 

3 Q I understand. What did they 

4 indicate to you that this - - the substance was 

5 inside of this? 

6 A They did not. They indicated that 

7 it wasn't regulated and that they needed to 

8 use a different pak. 

9 Q Did you write a letter of 

10 investigation to Checker's? 

11 A I did. 

12 Q Okay. And ln that letter of 

13 investigation, did you cite them for -- did 

14 you ci te them for improperly marking and 

15 labeling -- or improperly marking a UN 3373 

16 biological shipment? 

17 A I ci ted them for not being ln 

18 compliance with 49 CFR 173.199, that they 

19 offered -- they did not offer a package that 

20 was in compliance with 173.199. 

21 Q Okay. But at the conclusion of 

22 your investigation, you determined, based on 

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1 what they had told you, that the substance 

2 inside this particular shipment wasn't 

3 required to be shipped under --

4 A Right. 

5 Q Yes under 173.199. Okay. 

6 Let's go to C7, page 14 of 16. Now, I know 

7 that that print is really small, but do you 

8 recall or can you tell if the words 

9 "Biological Substance, Category B" are 

10 actually on that shipment? 

11 A In the middle of the package, 

12 there lS a box and to the right of that in 

13 orange writing there does mention something 

14 about biological substances Category B. 

15 Q Okay. And would you agree that it 

16 says "Mark this box if your shipment meets the 

17 definition of 'Biological Substance Category 

18 B'''? 

19 A There is -- I'm trying to read it 

20 yes. 

21 Q Okay. Okay. And -- now, In this 

22 exhibit, it looks like there's sort of a 

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1 little black mark in that box, but I think 

2 your testimony was that it wasn't marked - - it 

3 didn't appear that that box had been checked; 

4 is that right? 

5 A Right. That little black mark is 

6 actually where a portion of the white had been 

7 scraped off during shipping. 

8 Q Okay. 

9 A So there was no actual marking on 

10 there. No. 

11 Q All right. So from you looking at 

12 this, it did not appear that the customer had 

13 said, Yes, this is a UN 3373 biological 

14 substances shipment? 

15 A That's why I took a picture of the 

16 back of it because I needed to become clear 

17 whether it was or whether it wasn't. But as 

18 far as I'm looking at it, it's -- it's not 

19 marked properly. 

20 Q Right. Well -- you mean the box 

21 is not marked properly. 

22 A The whole package was not marked 

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1 properly. 

2 Q Right. So based on your testimony 

3 then, the only thing on this entire shipment 

4 that could have indicated to anyone looking at 

5 it that it might contain anything regulated 

6 was the UN 3373 on the front part of the 

7 package; right? 

8 A Correct. Yes. That's what 

9 flagged me. 

10 Q Okay. But the -- you agree that 

11 the UN 3373 on the front of the shipment in no 

12 way actually complied with the provisions that 

13 you check for when you're looking for -- when 

14 you're inspecting for 173.199? 

15 A I do look for proper marking. 

16 Yes. 

17 Q Okay. But that's not the proper 

18 mark. 

19 A No. But it does have a UN number 

20 which is something that is on the package that 

21 indicates that there's a hazardous material 

22 inside. It is a unique transportation marking. 

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1 Q Well, it's unlque when it has four 

2 numbers after it, not when it has a number and 

3 a letter after it. 

4 A Correct. 

5 Q 'Cause if it had UN 4G, that would 

6 just travel through the system, whether it had 

7 haz in it or not; right? 

8 A Correct. 

9 Q Okay. And, in fact, there's other 

10 UN packaging that it could have on there; 

11 right? There are other different UN groups? 

12 A Sure. 

13 Q Right. How many are there? Do 

14 you know? 

15 A I do not know. 

16 Q Okay. I mean, several? 

17 A Yes. 

18 Q So the only thing really -- do any 

19 of those UN spec markings for boxes or for 

20 packaging, say, have more than one number and 

21 one letter? 

22 A Not that I'm aware of. 

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1 Q Okay. 

2 A Well, let me rephrase that. I 

3 would see like a UN lAl, but it wouldn't be 

4 it wouldn't be all letters. A UN number is 

5 four letters -- four numbers after the UN. 

6 Q Okay. And when you refer to UN 

7 number, you mean a regulated commodity that 

8 has a UN number assigned to it? 

9 A Yes. 

10 Q A UN identification number. 

11 A Yes. 

12 Q So the UN specification packaging 

13 numbers that we've talked about would also 

14 have a number but would probably only have one 

15 number and one letter? 

16 A Correct. 

17 Q But UN identification numbers have 

18 four numbers? 

19 A Correct. 

20 Q Do they all have four? 

21 A As far as my knowledge, yes. 

22 Q Okay. Might some of them have 

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1 three? 

2 A Not that I'm aware of. 

3 Q Okay. Let's move to C7, page 15 

4 of 16, please. 

5 A Okay. 

6 Q Okay. And on that shipment as 

7 well, it has the UN 3373 marked at the top. 

8 A Correct. 

9 Q No -- no diamond drawn around it 

10 or printed around it? 

11 A No . 

12 Q Okay. So it's not properly marked 

13 for a UN 3373 shipment? 

14 A Correct. 

15 Q Okay. 

16 A That's what flagged me. 

17 Q You investigated this shipment as 

18 well with Checker's? 

19 A Yes. 

20 Q Okay. And what conclusion was 

21 reached about this shipment? Did it contain 

22 a regulated commodity? 

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1 A It was the same as the first. 

2 Q Okay. So the content of the 

3 second shipment marked UN 3373 at the top 

4 ident if ied ln C7, page 15 of 16, was not 

5 actually a regulated commodity? 

6 A After the investigation, I found 

7 out that it was not. 

8 Q Okay. And moving on to C7, page 

9 16 of 16, on the back portion of that 

10 shipment, you agree it has that same language 

11 that we referenced earlier on the first 

12 shipment regarding "Mark this box if this 

13 package contains UN 3373 biological 

14 substances"? 

15 A Yes, I do. 

16 Q Okay. And that one did not 

17 have the shipper did not mark that box 

18 either; correct? 

19 A That's correct. 

20 Q Okay. 

21 A And even if they had, it would 

22 still not be in compliance with 48 CFR 

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1 173.199. 

2 Q Right. If they had marked that 

3 box -- if they had marked that box, would you 

4 consider that something important ln your 

5 inspection? 

6 A Yes. 

7 Q Okay. And that would be important 

8 because that box being checked would have been 

9 a clue to FedEx that that shipment actually 

10 contained a regulated substance? 

11 A I would have thought that the UN 

12 3373 would have clued FedEx that it was a 

13 regulated substance as well. 

14 Q I understand that. 

15 A Uh-huh. 

16 Q But you believe that if that box 

17 were marked, that would be significant to a 

18 carrier, any carrier basically? 

19 A If they looked at 'em. 

20 Q Right. 

21 A Yes. 

22 Q Okay. But ln this case, it wasn't 

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1 marked? 

2 A That's correct. 

3 Q The fact that it wasn't marked 

4 also carries some significance, doesn't it? 

5 A It still is an improperly marked 

6 package. 

7 Q I understand. But the fact that 

8 they the shipper did not mark that as 

9 declaring it that it had a regulated substance 

10 ln there, that bears some weight, doesn't it? 

11 A No, because the original marking 

12 on the front is still not properly marked. 

13 Q I understand. But you consider 

14 more than one factor when you're looking at a 

15 shipment, don't you? 

16 A Yes. 

17 Q Okay. And so in addition to the 

18 UN 3373 that's on the front part of that 

19 package, you would consider that the fact that 

20 the shipper did not mark this spot on the 

21 package as something to consider in the 

22 overall scheme of things as to whether this 

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1 should have been recognized as a regulated 

2 commodity? 

3 A It does ralse questions, which is 

4 another reason why a letter of investigation 

5 was opened. 

6 Q Raises questions for the --

7 A Whether or not it was regulated. 

8 Q Okay. But, agaln, that's 

9 considering the front part that had the UN 

10 3373 on there; right? 

11 A Right. It was an improperly12 marked package. That's why it was -- it was 

13 separated from the others. 

14 Q Okay. For the purposes of your 

15 testimony here today, let' s lock away the 

16 knowledge you have of the other pictures and 

17 just look at C7, page 16 of 16. 

18 A Okay. 

19 Q You agree that there's no 

20 indication on that side of the package that 

21 this shipment contained anything that was 

22 regulated? 

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1 A Well, the orange writing does 

2 suggest that there might be something. 

3 Q So your testimony is that the fact 

4 that there's a box on there that says "Mark 

5 this if you're shipping a biological substance 

6 Category B" indicates that anything in that 

7 shipment could be haz? 

8 A It makes me look at the box a 

9 little bit more closely. 

10 Q Right, but I'm not talking about 

11 you. I'm talking about for the purposes of an 

12 inspection and for looking for violations. 

13 The fact that there's even that statement on 

14 there that says mark if it has this in there, 

15 that brings it to mean you should investigate 

16 further? 

17 A See, actually, I can't really 

18 answer that question because when I saw it, I 

19 saw the UN 3373 first. So I can't really --

20 Q Okay. 

21 A -- answer that if it was just the 

22 back. 

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1 Q So you can't answer, sitting here 

2 in court today, if you looked at C7, page 16 

3 of 16, if you saw that shipment, you can't 

4 tell the Court whether or not there's any 

5 indication that that shipment might contain 

6 dangerous goods? 

7 A I would think there would be but, 

8 again, I can't erase the fact that I do know 

9 that the front had the UN 3373 marking on it, 

10 so I can't ignore that that was on it. 

11 (Pause. ) 

12 MS. CHANDLER-SNELL: Your Honor, 

13 have an exhibit marked Rl that I would like to 

14 approach 

15 JUDGE GOODWIN: Sure. 

16 MS. CHANDLER-SNELL: for 

17 identification. 

18 BY MS. CHANDLER-SNELL: 

19 Q Now, I've handed you an item 

20 that's marked Rl for the purposes of 

21 identification. Have you ever seen an item 

22 that looked similar to that? 

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1 A Yes. 

2 Q Okay. Would you agree that that's 

3 a pretty good reflection of the picture we 

4 were just looking at in C7, page 16 of 16? 

5 A No. This 1S the front side. 

6 Q Okay. Let's turn it over to the 

7 back. Would you agree that that indicates a 

8 pretty good representation of the item that 

9 you were looking at in C7, page 16 of 16? 

10 A Sure. 

11 Q Okay. Now, when you see the back 

12 side of Rl, do you see any indication on there 

13 that should trigger further inspection as to 

14 whether it contains dangerous goods, hazardous 

15 materials? 

16 A Well, as an inspector, I would 

17 flip it over to look at the front. I'd look 

18 at the sides. I'd look to see what's going on 

19 1n between 'cause it's clear here, so that's 

20 what I do. 

21 Q Okay. So on that exhibit that 

22 I've handed you, you agree there's no 

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1 indication anywhere on that that exhibit 

2 contains any type of hazardous materials 

3 that's regulated? 

4 A Not this one. No. 

5 Q Okay. And you agree that the only 

6 difference between this one and the one we 

7 were talking about in C7, page 15 of 16 and 16 

8 of 16 is the front side UN 3373 written in 

9 black marker at the top? 

10 A Yes. 

11 Q Okay. 

12 MS. CHANDLER-SNELL: Your Honor, I 

13 actually will ask that this be admitted as 

14 evidence probably later with someone who will 

15 testify about --

16 JUDGE GOODWIN: Okay. It's marked 

17 for ID. Let me see it. I just want to look 

18 at this and identify does it have a 

19 FedEx --

20 MS. CHANDLER-SNELL: I don't know. 

21 We refer to it as the orange package, the 

22 orange clinical pak. 

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1 THE REPORTER: Orange what? 

2 MS. CHANDLER-SNELL: Clinical pak. 

3 JUDGE GOODWIN: See, when you work 

4 with the Government, everything has a part 

5 number. 

6 MS. CHANDLER-SNELL: Usually FedEx 

7 does, too, and I would imagine there is one. 

8 I don't know if it's -- I would imagine I've 

9 got a few guys in the hall who could tell me 

10 what it is, but I don't think it's named on 

11 here . 

12 JUDGE GOODWIN: That's close 

13 enough. 

14 MS. CHANDLER-SNELL: Thank you. 

15 BY MS. CHANDLER-SNELL: 

16 Q I'd like to turn your attention 

17 now to Exhibit C8, which you indicated earlier 

18 was the letter of investigation you sent to 

19 David Littlejohn at FedEx for the FedEx 

20 portion of this case; is that correct? 

21 A Yes, it is. 

22 Q Okay. Now, let me take a step 

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1 back. When you are preparing to go out in the 

2 field and conduct an investigation, is there 

3 a manual that the FAA uses to prepare you and 

4 for you to reference in deciding how to do 

5 your inspections and how to propose penalties 

6 and that kind of thing, recommend penalties? 

7 A So you're saying investigation or 

8 inspection? I'm sorry. I didn't hear what 

9 you said. 

10 Q I'm sorry. When you are preparing 

11 to do an inspection for the FAA, do you have 

12 a manual that you use to prepare you to do 

13 those inspections? 

14 A I have 2150 that I go by. 

15 Q Okay. And in 2150, that is a 

16 rather large manual; right? 

17 A Yes. 

18 Q And a portion of that has been 

19 entered as an exhibit, the portion that deals 

20 with Appendix C, Sanction Guidance. 

21 A Correct. 

22 Q C15; right? 

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1 A Vh-huh. 

2 Q Okay. Now, I know it's a big 

3 manual, but you're pretty familiar with the 

4 whole thingi right? 

5 A Not the entire thing, but it's 

6 like reading the Bible. You have to keep 

7 referencing it. 

8 Q Right. And so anytime you have a 

9 question, you go back to that field -- is it 

10 called a field manual? 

11 A Oh, no. That's the FAA Order 

12 2150. We also have the hazmat regulations in 

13 49 CFR that we refer to. 

14 Q Okay. But when you have questions 

15 about what your Agency requirements are, you 

16 go to 2150? 

17 A That's it has the general 

18 things that are set out for us. Yes. 

19 Q And that actually has the Sanction 

20 Guidance in therei right? 

21 A Yes. 

22 Q And then it has other things --

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1 other general things about the way you're 

2 supposed to conduct your business? 

3 A Yes. 

4 Q Okay. And you will agree that in 

5 that manual, it states that the FAA's central 

6 mission is to promote safety; is that right? 

7 A That's correct. 

8 Q Okay. And that's well-known to 

9 you and every other agent, whether it's 

10 written in the manual or not -- that's sort of 

11 your mission; right? 

12 A That is. Yes. 

13 Q Okay. In 2150, it also calls for 

14 the Agency and its agents to exercise fairness 

15 and reasonableness, doesn't it? 

16 A Oh, absolutely. 

17 Q Okay. It requires you to be 

18 timely in your investigations, doesn't it? 

19 A Yes. 

20 Q And it requlres the Agency at 

21 large, everyone in the FAA, to respond to 

22 inquiries and things that matter to safety in 

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1 a timely manner? 

2 A Yes. 

3 Q Okay. Now, the standard for 

4 timeliness can vary, depending on what what 

5 you're having to do; right? 

6 A Right. 

7 Q Okay. But you'll agree that 

8 timeliness 1n responding, particularly if 

9 safety 1S important, if safety is at issue, 

10 the timeliness -- it means quick; right? 

11 A Yes. 

12 Q It means you do it as quickly as 

13 you can. You respond to -- whether it's an 

14 inquiry, an investigation, a violated 

15 procedure, if it matters for safety, then it 

16 rises to the top of your list of things to do? 

17 MR. LOMAZOW: Objection, Your 

18 Honor. 

19 THE WITNESS: Yes. 

20 MR . LOMAZOW : That's going to 

21 depend on a case-by-case basis. We're making 

22 a generalization as to any investigation but, 

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1 once again, that's gOlng to depend on what 

2 exact circumstances of what particular case 

3 you are referring to, what particular 

4 investigation you're referring to. 

5 MS. CHANDLER-SNELL: Your Honor, I 

6 think --

7 JUDGE GOODWIN: Overruled. 

8 MS. CHANDLER-SNELL: Thank you, 

9 Your Honor. 

10 BY MS. CHANDLER-SNELL: 

11 Q You were nodding your head. Did 

12 you answer yes to that last question? 

13 A I did. Yes. 

14 Q Okay. In 2150, it says that -- it 

15 talks about FAA investigative personnel. I'm 

16 not sure if I put the emphasis right on that 

17 word. But are you familiar with that phrase, 

18 "investigative personnel"? 

19 A Yes. 

20 Q Is it investigative or 

21 investigative? 

22 A I like to use the word 

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1 investigatory, but I know that's not really a 

2 word. 

3 Q Okay. Well, we'll use those three 

4 interchangeably for the purposes of this, 

5 regardless of the accent on which syllable. 

6 You agree that 2150 says that the 

7 FAA investigatory or investigative personnel 

8 recommend initially the appropriate type of 

9 response to address a violation? 

10 A We are - - we are the inspectors 

11 who go out, but then we do come back and 

12 discuss with our supervisors, so 

13 Q Okay. Well, so does the 

14 investigative personnel, does that include 

15 inspectors and supervisors? Is that sort of 

16 a --

17 A Oh, absolutely. 

18 Q -- grouping? 

19 A 'Cause they are investigators as 

20 well. 

21 Q Okay. And -- and I should have 

22 known -- in 2150, I think it probably has a 

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1 definition that you've sort of described 

2 there. Do you agree that FAA investigative 

3 personnel means inspectors, special agents, 

4 aviation safety technicians, and any other FAA 

5 personnel who conduct regulatory enforcement 

6 investigations? 

7 A Yes. 

8 Q All right. So it's kind of a 

9 broad way to encompass everyone who goes out 

10 and does investigations or makes 

11 recommendations prior to it going to the - - to 

12 Counsel's Office? 

13 A Yes. We have a big agency. 

14 Q Okay. All right. And the 

15 investigative personnel are the ones who 

16 recommend initially the appropriate type of 

17 response to address a violation, according to 

18 2150. 

19 A Can you repeat that again for me, 

20 please? 

21 Q Okay. And I may try to rephrase 

22 it. According to 2150, the investigative 

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1 personnel are the ones who initially recommend 

2 the appropriate type of response for any 

3 violation they find? 

4 A We do have some some leeway, 

5 but we do have some direction from our 

6 supervisors. 

7 Q Okay. Well, when they say the 

8 "appropriate type of response" there, do you 

9 agree with me that when you're deciding an 

10 appropriate type of response, you're deciding 

11 warning letter or no warning letter or 

12 proposing a civil penal ty? Are those the 

13 responses you do in response to your 

14 investigation? 

15 A Those are -- that's all part of an 

16 enforcement decision process that we use. 

17 And, actually, when we go through that 

18 process, that helps us to decide what is the 

19 appropriate action to take --

20 Q Okay. 

21 A -- to end the investigation. 

22 Q Well, but you would agree, 

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1 wouldn't you, that a warning letter is 

2 different than a legal enforcement action; 

3 right? 

4 A Sure. 

5 Q Okay. 

6 A Sure. 

7 Q If only a if only a warning 

8 letter is issued, do you make that decision or 

9 do you and your supervisor make that decision, 

10 or do you always have to consul t counsel 

11 before coming to a determination? 

12 A For a warnlng letter? warning 

13 letters, that's from the supervisor and the 

14 enforcement decision process that we use. 

15 Q Okay. So basically with a warning 

16 letter, it's resolved before you get to the 

17 legal enforcement action? 

18 A It actually does not go to our 

19 legal counsel if it is a warning notice. 

20 Q Okay. And part of that is because 

21 there's no sanction involved with a warning 

22 letter; right? 

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1 A Actually, there would be a 

2 sanction. 

3 Q To clarify then, you can issue a 

4 warning letter and have a monetary sanction 

5 attached to that? 

6 A Not a sanction, but there would be 

7 a violation associated with it. So In our 

8 record, it would show the violator and it 

9 would show what the violation was of. So it 

10 would have the list of the violations that 

11 were regulated. 

12 Is that what you're asking? 

13 Q Yes. I think that so, to 

14 clarify, you have a warning letter and that 

15 may say -- it mayor may not -- well, it would 

16 say. Okay. Strike all of that. 

17 You have a warning letter and it 

18 says a violation occurred of X provision. 

19 A Correct. 

20 Q But a warnlng letter can never 

21 have a monetary penalty attached. 

22 A It does not. 

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1 Q Okay. If it goes to legal 

2 enforcement, then you end up -- well, that's 

3 the time you basically turn it over to counsel 

4 and your involvement becomes more as a wi tness 

5 and less as a decisionmaker? 

6 A There actually, I tend to 

7 follow my cases till they're completely done. 

8 Q Okay. So you continue then to 

9 have input as to what sanction would be 

10 allowed, what monetary amount would be settled 

11 for, that kind of thing? 

12 A I give a general recommendation at 

13 the beginning. 

14 Q Okay. You give a general 

15 recommendation at the beginning when you turn 

16 it over to legal, but do you continue to 

17 advise and determine what's appropriate for 

18 A Not on the sanction, no. 

19 Q Okay. Not on the sanction amount. 

20 A No. 

21 Q You give an initial recommendation 

22 and then your role as a participant is cut 

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1 back? 

2 A As far as that, yes. 

3 Q Okay. Now, if you determine that 

4 either no violation occurred or that a 

5 violation occurred and a warning letter is 

6 sufficient, you can do that without going 

7 anywhere past your supervisor who at the time 

8 was Mr. Kenny? 

9 A Correct. 

10 Q Okay. But you agree that the 

11 investigation you did of FedEx and of 

12 Corporate Air in this case was not resolved at 

13 that level and it was sent on for --

14 A That's correct. 

15 Q -- legal enforcement? Okay. 

16 A 'Cause the violations were still 

17 occurring. 

18 Q You say the violations were still 

19 occurrlng. Did you go back out and look? 

20 A Oh, I still go out and look. Yes. 

21 Q But you don't cite? 

22 A I'm waiting to find out what's 

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1 going on with this case here. 

2 Q Okay. So you agree you've been 

3 put on notice by FedEx and you have personal 

4 knowledge that UN 3373 shipments are still 

5 traveling every day on aircraft under 

6 Corporate Air's flight certificate and FedEx' s 

7 flight certificate that are not inspected and 

8 are citeable offenses? 

9 A I agree. 

10 Q Okay. Have you ever performed an 

11 audit where you saw UN 3373 shipments that 

12 were not in compliance for other carriers? 

13 A Yes. 

14 Q Okay. Have you cited those 

15 carriers for those? 

16 A Yes. 

17 Q Okay. And are those cases still 

18 pending? 

19 A No. 

20 Q Were those cases dismissed or 

21 settled as a violation? 

22 MR. LOMAZOW: Objection, Your 

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1 Honor. Those other cases have nothing to do 

2 with this case at hand. 

3 JUDGE GOODWIN: Sustained. 

4 (Pause. ) 

5 BY MS. CHANDLER-SNELL: 

6 Q For the -- for any carriers other 

7 than FedEx and Corporate Air, have you seen 

8 violations since this case began? 

9 MR. LOMAZOW: Objection, Your 

10 Honor. We're not talking about other 

11 carriers. We're talking about FedEx and 

12 Corporate Air for this particular case. 

13 MS. CHANDLER-SNELL: Your Honor, 

14 and I'll explain the reason why I think it's 

15 significant -- is, first of all, we've heard 

16 Agent Lusching -- Luscher, Lusching 

17 THE WITNESS: Luscher. 

18 MS. CHANDLER-SNELL: testify 

19 that Corporate Air's response in their follow20 up was not sufficient and that FedEx's 

21 response In their follow-up was not above and 

22 beyond. So I think it is relevant then what 

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1 other carriers have done on this issue for 

2 their follow-up that might be seen as 

3 significant because the things we've done 

4 haven't. 

5 In addition, I think it's 

6 important to know whether the FAA is aware of 

7 continuing violations not only within FedEx' s 

8 system and Corporate Air's system, but in 

9 other systems where these shipments are not 

10 being inspected and they decided not to cite. 

11 I think it goes to the argument that I believe 

12 they're putting forth, which is that this is 

13 a safety concern. 

14 JUDGE GOODWIN: Yeah, but doesn't 

15 the FAA have prosecutorial discretion? 

16 MS. CHANDLER-SNELL: I think 

17 they --

18 JUDGE GOODWIN: If three people 

19 rob three different banks and the state's 

20 attorney decides to prosecute one, why isn't 

21 it fair to prosecute the other two defendants 

22 to the first person? 

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1 MS. CHANDLER-SNELL: Your Honor, I 

2 think it goes to the credibil i ty of their 

3 testimony that these are safety risks. And I 

4 think that, ln addition, that it goes to -- I 

5 don't think I asked -- and, if I did, I don't 

6 think I meant to -- whether they were being 

7 cited. I asked whether they had changed the 

8 way they were handling and whether they were 

9 recurring. So I will - - I will acknowledge or 

10 I' 11 wi thdraw the question about whether they 

11 were cited, but I would like to explore 

12 whether in response to any inquiry from the 

13 FAA they have changed the way they handle 

14 these shipments. 

15 And I would also like to clarify 

16 whether they have continued to be inquired 

17 about and followed up on. 

18 MR . LOMAZOW : Judge, if I may, 

19 once agaln I will obj ect . I'll use the 

20 robbing the bank metaphor. Here, the only 

21 question is was there a violation on this 

22 particular date. Did they violate 49 CFR 

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1 173.199 and were the regulations cited or not? 

2 What's going on with other air carriers 

3 regarding other inspections is not relevant. 

4 The only thing that should be at issue here is 

5 the violation that was on -- that was at issue 

6 on May 12th, 2008 and May 16th, 2008. 

7 MS. CHANDLER-SNELL: Well, and, 

8 Your Honor, yes, there's the question of 

9 whether a violation occurred or not, but 

10 there's also the question of mitigating 

11 circumstances, which is part of or 

12 mitigating remedial actions, remedial measures 

13 taken afterwards, which the FAA has already 

14 argued we didn't do or we didn't do enough of. 

15 So I think that goes to the 

16 credibility and the weight of whether these 

17 are real violations and of paramount concern 

18 to safety. Because if they're not dangerous 

19 on some other airline, I think we have the 

20 reason to know why they're a danger in this 

21 situation and not in others. 

22 And then, In addition, I think 

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that it is of concern and a matter of public 

policy whether the follow-up for one carrier 

is the same or similar to the follow-up on 

another carrler. I mean, that goes to the 

robbing the bank, Your Honor. If other people 

are being around to rob a bank and the law is 

not being enforced, then I do think that 

that's a valid reason to pursue why this 

matter is different from those matters. 

JUDGE GOODWIN: I don't think that 

lS. I believe that comes under the area of 

prosecutorial discretion. There may be an 

argument on mitigation if two carriers are 

treated differently. But a lot of the other 

is I think just speculative testimony. If I 

were to find a violation and assess a fine, 

while the Sanction Guidance is advisory to the 

Court and I'm not bound by it, an argument 

could be made that, in a similar circumstance, 

x fine was applied and that would - - should be 

applied in this case or not applied. 

From that standpoint, the 

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1 testimony I think is relevant, but I think 

2 whether or not they've gone after Carrier A 

3 for similar violations that are before me 

4 here, I think that comes within the normal 

5 prosecutorial discretion, and I don't think 

6 that the Court has the power to inquire into 

7 a discretionary - - in that part of discretion. 

8 It's from the public policy 

9 standpoint, we might not agree with it, but 

10 the practicality is that this system -- this 

11 enforcement system and the criminal system are 

12 not perfect and the prosecutor the FAA 

13 enforcement attorney is equivalent of a 

14 prosecutor -- and they have some discretion 

15 and they may choose to go after one carrier or 

16 not, and I don't think it's the province of 

1 7 the Court to inquire as to why they did 

18 something, you know tried to enforce 

19 take an enforcement action in this case and 

20 not another one. 

21 I think if there's a disparity in 

22 treatment, that's a mitigation argument and 

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1 MR. LOMAZOW: Your Honor, I would 

2 be all for a five-minute break. 

3 JUDGE GOODWIN: Okay. Sounds to 

4 me like the vote is a five-minute break. 

5 MS. CHANDLER-SNELL: Thank you, 

6 Your Honor. 

7 JUDGE GOODWIN: So we'll take a 

8 five-minute break. Again, my same admonition 

9 to the witness. 

10 THE WITNESS: Gotcha. 

11 (Whereupon, at 1:56 p.m. off the 

12 record until 2:13 p.m.) 

13 JUDGE GOODWIN: Back on the 

14 record. The witness is still under oath. 

15 BY MS. CHANDLER-SNELL: 

16 Q Agent, I'd like to go back to 

17 2150. I think we already established you're 

18 familiar with it. It's a large document, that 

19 you're generally familiar with the 

20 requirements. 

21 Are you familiar then also with 

22 the fact that in 2150, it addresses the need 

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1 for cooperation between agencies? 

2 MR. LOMAZOW: Objection, Your 

3 Honor. This has nothing to do wi th this case. 

4 MS. CHANDLER-SNELL: Your Honor, I 

5 think that that's - - first of all, I think 

6 that --

7 JUDGE GOODWIN: Restate your 

8 question. 

9 BY MS. CHANDLER-SNELL: 

10 Q Are you familiar with the fact 

11 that ln 2150, the manual addresses the need 

12 for cooperation between agencies? 

13 JUDGE GOODWIN: Overruled. 

14 BY MS. CHANDLER-SNELL: 

15 Q Are you familiar with that? 

16 A Which agencies are you referring 

17 to? 

18 Q In the manual, I believe it 

19 references the Department of Transportation 

20 and the cooperation between agencies in the 

21 Department of Transportation. 

22 A Okay. Yes. 

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1 Q Okay. And do you have 

2 interactions with the people in the other 

3 agencies? 

4 A Not usually. 

5 Q Okay. Well, in some of your 

6 outreach that you talked about earlier that's 

7 part of your position, do you attend maybe 

8 semlnars or conferences where members of other 

9 agencies are present? 

10 A Yes, I do. 

11 MR. LOMAZOW: Objection, Your 

12 Honor. What does this have to do with the 

13 violations at issue in this case? 

14 JUDGE GOODWIN: Overruled. 

15 THE WITNESS: Yes. PHMSA puts on 

16 a seminar on occasion and I do attend those. 

17 BY MS. CHANDLER-SNELL: 

18 Q Okay. As part of your public 

19 outreach also, you mentioned I think 

20 invol vement wi th others in the industry, other 

21 carrlers, manufacturers probably sometimes, 

22 people like that? 

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1 A Yes. 

2 Q Okay. If you will look at Exhibit 

3 C8. That lS your letter of investigation to 

4 FedEx in this case. In your letter of 

5 investigation, you include the sections of 49 

6 CFR that you believe have been violated or 

7 that you believe you've found violations in; 

8 is that correct? 

9 A Correct. Those are preliminary. 

10 Yes. 

11 Q Okay. And then in the course of 

12 your investigation -- and, actually, when an 

13 entity responds, they're looking at the 

14 violations you put out in your letter of 

15 investigation and they're responding to those 

16 as written; correct? 

17 A Correct. 

18 Q Okay. Now, in the letter of 

19 investigation to FedEx, you reference 175.3, 

20 175.30(a) (3), 175.33(a), and 175 . 5 0 1 (a) ; 

21 correct? 

22 A Correct . 

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1 Q All right. Are you familiar with 

2 the complaint that was filed against FedEx in 

3 the case we're here today on? 

4 A Yes. 

5 Q Okay. And in the official court 

6 document, are you aware that the provisions 

7 that were cited to FedEx are not consistent --

8 I shouldn't say consistent they're not 

9 exactly the ones you reference. Did you know 

10 that? 

11 A Correct. Yes . May I comment on 

12 that? 

13 Q Yes. 

14 A On page two of the same exhibit, 

15 if you look down at the very bottom of the 

16 page, it says, "Please be advised that the 

17 allegation contained herein does not 

18 necessarily include all deficiencies that may 

19 be subsequently discovered during the course 

20 of this investigation," so it does allow a 

21 little flexibility there. 

22 Q Okay. So then according to that 

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1 Exhibit C8, anything that wasn't listed there 

2 on the front page would have been something 

3 that was subsequently discovered during the 

4 course of your investigation; right? 

5 A Yes. 

6 Q Something that wasn't immediately 

7 available to you at the time you did the 

8 initial inspection? 

9 A Right. So these were preliminary. 

10 Q Okay. Now, do you make the final 

11 determination as to what's included in the 

12 complaint or does that - - is that reserved for 

13 counsel? 

14 A That's counsel. 

15 Q Okay. In looking at the 

16 provisions that you listed in your letter of 

17 investigation, it's clear to me that 

18 175.501(a) was for the shipment that had an 

19 oxidizer label on it. 

20 A That's correct. 

21 Q Is that right? Okay. Now, in 

22 going back to the top of that, in 175.3, 

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1 accepting a hazardous material for 

2 transportation not prepared in accordance with 

3 Subchapter C, which of the shipments were you 

4 meaning that to apply to when you raised that 

5 provision? 

6 A All three of 'em. 

7 Q Okay. And when you referenced 

8 there the accepting hazardous material package 

9 for transportation, you're talking about the 

10 initial inspection performed by the FedEx 

11 dangerous goods specialist; correct? 

12 A Both the pre 1 iminary and the final 

13 inspection by the specialist. 

14 Q Well, and let's -- okay. Let's 

15 talk about that for a second. Let's go back 

16 to Exhibit C5. And when you talk about the 

17 preliminary and then the secondary inspection, 

18 you are referencing C5 which is FedEx Express 

19 DG Manual for Inspecting Dangerous Goods. Is 

20 that right? 

21 A That's right. 

22 Q Okay. And you'll agree, though, 

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1 won't you that this is FedEx's way that FedEx 

2 does the acceptance, the primary and 

3 secondary. That's not a requirement under CFR 

4 anywhere; right? 

5 A There 1S a requirement for a 

6 inspection, yes. 

7 Q Okay. So an inspection. But when 

8 we talk about primary and secondary, those 

9 words aren't actually listed in CFR at all. 

10 A That's correct. 

11 Q Okay. In fact, that goes about 

12 I'd venture to say beyond what CFR requires 

13 'cause we're saying inspection inspection and 

14 CFR says inspection. 

15 A If that were actually happening, 

16 yes. 

17 Q Okay. So you're not at all trying 

18 to say that it didn't work the first time, 

19 didn't work the second time. You're just 

20 say1ng it wasn't inspected according to the 

21 regulations in your opinion? 

22 A Yeah. I'm saying that all three 

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1 of them were not -- were not inspected. 

2 Q Okay. So you would agree having a 

3 preliminary inspection and a secondary 

4 inspection is better than just having one; 

5 right? 

6 A Yes. 

7 Q Okay. And even though it's not 

8 required by law, that's what it says in FedEx 

9 policy and procedure, in our manual; right? 

10 A Correct. 

11 Q Okay. Okay. Now, your 

12 understanding of this shipment as well is that 

13 it was inspected by FedEx DG specialists, or 

14 not inspected, in your case. You're saying it 

15 was not inspected by a specialist and FedEx 

16 put it on Corporate Air's aircraft; is that 

17 right? 

18 A Which one are we talking about? 

19 Which shipment. 

20 Q All three of 'em. 

21 A All three of 'em? Yes. I know 

22 that the DG specialists do not look at the 

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1 items in the clinical pak, the UN 3373s, but 

2 they do would normally look at a 5.1. 

3 Q Okay. And you know that FedEx DG 

4 specialists don't do that because FedEx told 

5 you they don't train to do that; right? 

6 A They don't train to do what? 

7 Q To inspect the 3373 shipments when 

8 they come In. 

9 A That's correct. 

10 Q Okay. And I think you made the 

11 statement for both FedEx's mitigation and 

12 Corporate Air's mitigation that they didn' t do 

13 anything that wasn't required by 49 CFR; is 

14 that right? 

15 A Right. 

16 Q Okay. Now, tell me -- do you know 

17 what provision you're referencing when you say 

18 they didn't do anything more than what was 

19 required by 49 CFR? 

20 A I'm sorry? 

21 Q What specific provision ln 49 CFR 

22 are you looking at to see if they did just 

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1 what was required for mitigation or if they 

2 went above and beyond? 

3 A I don't understand your question. 

4 I'm sorry. 

5 Q Okay. In your testimony about 

6 FedEx's response to your letter of 

7 investigation, I believe the FAA attorney had 

8 asked you what they did to follow up; 

9 basically, what remedial measures were taken, 

10 what mitigating factors are there. 

11 A Right. They retrained. 

12 Q And your response was that's 

13 nothing more than what's required under 49 

14 CFR. 

15 A Right. 

16 Q Okay. Where -- what provision in 

17 49 CFR deals with remedial measures or 

18 mitigation? 

19 A I would not know -- do not know. 

20 Q Okay. When you said that, were 

21 you just saying that training is part of the 

22 requirement anyway? 

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1 A Yes. 

2 Q But you'll agree that retraining 

3 before your initial training is due is not 

4 required by 49 CFR? 

5 A Correct. 

6 Q Okay. So the fact that FedEx 

7 retrained their personnel involved, that 

8 actually is going above and beyond what's 

9 required by 49 CFR, isn't it? 

10 A If you want to say it is. 

11 Q No. I'm asking you. 

12 A I don't I don't see it. If 

13 somebody didn't have the knowledge of those 

14 regulations that they're supposed to have 

15 knowledge of and then they had to be retrained 

16 on 'em because there was an issue, to me, I 

17 don't think that that's mitigating. That's 

18 just my opinion. 

19 Q Well, let me ask you: If FedEx 

20 hadn't retrained those employees, would you 

21 have cited them for those employees not being 

22 trained? 

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1 A No. 

2 Q Okay. Because they already 

3 complied with 49 CFR. 

4 A Correct. 

5 Q Okay. So the retraining -- before 

6 the retraining was due was not required under 

7 49 CFR? 

8 A Correct. 

9 Q Okay. It's good practice. 

10 A Sure. 

11 Q Let's look at David Littlejohn's 

12 response in C9. And I believe do you 

13 recall what you testified when the FAA 

14 attorney asked you what FedEx did to follow up 

15 on both of these shipments? 

16 A Yes, that the wi th the 5.1, 

17 that actually they had admitted that the 

18 courier mistakenly didn't bring the package to 

19 the attention of the DG specialist, that they 

20 did retrain, and then they also counseled two 

21 other employees regarding internal policy. 

22 Q Okay. Please go to the second 

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1 paragraph of David Littlejohn's letter. 

2 A Okay. 

3 Q Okay. And you also said there: 

4 "BZN management held a safety 

5 meeting with all employees as a 

6 result of this error." 

7 Right? 

8 A I'm sorry. The second paragraph 

9 or the third paragraph? 

10 Q Second. "BZN management" 

11 that's how it begins -- "BZN management" 

12 I'm sorry, third. 

13 A Oh, the third. Okay. Sorry. 

14 Q There's a short one at the front. 

15 A Okay. I'm sorry. Okay. 

16 "BZN management held a safety 

17 meeting with all employees as a 

18 result of this acceptance error." 

19 Okay. 

20 Q Okay. So that's something that 

21 you didn't include initially; right? when 

22 you testified for in response to Mr. 

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1 Lomazow's question? 

2 A No, I did not. 

3 Q Okay. So there was a station 

4 meeting with all employees, not just DG 

5 employees -- all employees; right? 

6 A Right. 

7 Q Okay. Then we say, "Proper 

8 handling and the proper procedures for 

9 acceptance were addressed in the meeting," so 

10 that tells the substance of that meeting. 

11 Then it says, "All employees were 

12 issued a memo outlining the importance of 

13 proper DG acceptance." 

14 Now, you didn't testify to that 

15 when you were asked the question earlier 

16 either, did you? 

17 A No. 

18 Q Okay. "Each employee was provided 

19 and directed to review our internal FAA20 approved DG Handling Job Aid to assist In 

21 preventing further acceptance issues of this 

22 type. " 

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1 Right? That's one more thing? 

2 A Okay. 

3 Q "In addi tion, our DG International 

4 Analysts (IDGA) for this area conducted an 

5 audit at this location on 5/19/08." So that's 

6 another meeting and a visit from an internal 

7 FedEx person; right? 

8 A Okay. 

9 Q Okay. 

10 "The proper procedures for pick-up 

11 and inspection and acceptance of DG shipments 

12 were reviewed." 

13 Okay. So that's a further 

14 meeting; right? 

15 A I can't say that that was a 

16 further meeting, but I do see there's talk 

17 about it. 

18 Q Okay. Well, so ln addi tion to 

19 what you testified to on direct with the FAA 

20 attorney, there was a station meeting for all 

21 employees of the entire station. There was a 

22 memo issued to all employees. There was a 

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1 follow-up with giving all employees the DG 

2 Handling Job Aid. And there was a visit by 

3 our FedEx DG International Analyst, the IDGA 

4 for that area, who had an audit of the 

5 location to look for further errors; right? 

6 A Okay. 

7 Q All right. Any of that required 

8 by 49 CFR? 

9 A No. 

10 Q Okay. So would you agree that 

11 goes above and beyond what's required by 49 

12 CFR? 

13 A Sure. 

14 Q Okay. And then look at the next 

15 paragraph, which would be the fourth -- I can 

16 count this time. David Littlejohn says he 

17 personally contacted the shipper and spoke 

18 with Shayla Cox. Right? 

19 A Uh-huh. Yes. 

20 Q And he informed her of the error 

21 and discussed it with her, that he determined 

22 that the material was not actually regulated, 

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1 that the MSDS was provided to us to confirm 

2 that it wasn't regulated, and then David gave 

3 her Mr. Littlejohn gave her additional 

4 information about public dangerous goods 

5 seminars and provided his telephone number for 

6 future assistance, if needed. 

7 Okay. And, of course, that's not 

8 required in 49 CFR. 

9 Now, look on the second page of 

10 C9, the second paragraph that begins, 

11 "Concerning the UN 3373 shipment." 

12 A Okay. 

13 Q About the middle of that 

14 paragraph, Mr. Littlejohn writes: 

15 "The shipper was also contacted by 

16 our IDGA to review proper 

17 procedures when offering this item 

18 for air transportation." 

19 Okay. So that's another measure 

20 that was taken; right? 

21 A Okay. 

22 Q Is "okay" in indicating "okay, " 

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1 you're agreeing; correct? 

2 A I'm just agreeing wi th what you're 

3 saying that, yeah, they did take they 

4 contacted -- they contacted the shipper. 

5 Q Do you agree that that's another 

6 remedial measure taken to address this issue? 

7 A I think it's good business 

8 practice. 

9 Q Do you agree that it's another 

10 remedial measure to address this issue? 

11 A Sure . 

12 Q Okay. And then go down to the --

13 on that page, the second page of C9, paragraph 

14 three, now that's where FedEx talks about its 

15 website which you did reference in the initial 

16 testimony earlier with the FAA attorney. 

17 A Correct. 

18 Q If you'll go down further on 

19 there, it says: 

20 "In addition, we are ln the 

21 process of changing our clinical 

22 pak for those shipments that may 

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1 need to use this source because of 

2 the size of their outer packaging. 

3 The updated pak has been approved 

4 by your FAA Washington, D.C. 

5 office and we hope to make this 

6 available to shippers in about 60 

7 days. A copy was forwarded to 

8 your manager, Thomas L. Kenny, on 

9 May 21st of 2008. " 

10 Correct? 

11 A That's what it says. Yes. 

12 Q Okay. Well, and as far as you 

13 know, that actually happened, didn't it? 

14 A I'm not sure if it was made 

15 available to shippers, but I -- I have seen 

16 the package. Yes. 

17 Q Okay. Do you know about or did 

18 you inquire about any conversations that FedEx 

19 had with the FAA in Washington, D.C.? 

20 A No. I just had heard about it 

21 through Thomas Kenny. 

22 Q Okay. And you do know then that 

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1 Mr. Kenny received a copy of the cl inical pak, 

2 the new one that was updated according to this 

3 letter? 

4 A Yes. Yes. 

5 Q Okay. 

6 A It's sitting on my desk. 

7 Q All right. So all of those are 

8 additional measures that weren't addressed in 

9 response to your question what did FedEx do to 

10 address the issues you cited them for? 

11 A Okay. 

12 Q Okay. Now, let's go to Exhibit 

13 C11. In your testimony on direct examination, 

14 when asked what activities or what steps 

15 Corporate Air took to address the violations, 

16 I believe that you said that they did not 

17 follow up; is that right? 

18 A I didn' t say that they did not 

19 follow up. I just said that there were no 

20 corrective actions. 

21 Q Okay. Now, first of all, I think 

22 one of those -- one of the times that the FAA 

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1 attorney asked you that, he asked in response 

2 to the UN 3373 clinical paks was any follow-up 

3 offered, and you said no. 

4 Turn back to Exhibit CI0. Now, 

5 you agree that nowhere -- I'm sorry -- okay. 

6 You agree that nowhere in CI0 do you list 

7 173.199 as a potential violation; correct? 

8 A I do point out there are two 

9 improperly-marked packages, but I do not cite 

10 173.199. No. 

11 Q Right. So in the provisions of 

12 Section 49 CFR that you actually cite or 

13 provide to Corporate Air saying, These are the 

14 violations at this point we think you may 

15 have, they're not put on notice by that, that 

16 there's any 173.199 violations, are they? 

17 A Right. But keep in mind that the 

18 investigation does not show all violations. 

19 Q Right. But at that point, you 

20 knew there was a problem with the UN 3373 

21 'cause you 

22 MR. LOMAZOW: Objection, Your 

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1 Honor. There's already been testimony this is 

2 a preliminary -- this is a preliminary letter 

3 indicating that the charges might change in 

4 the future. 

5 MS. CHANDLER-SNELL: Your Honor, 

6 I'm --

7 JUDGE GOODWIN: Overruled. 

8 MS. CHANDLER-SNELL: Thank you. 

9 BY MS. CHANDLER-SNELL: 

10 Q On page two of CI0, you say that 

11 there's Category B UN 3353 that had been 

12 accepted and transported for alr -- it says 

13 accepted and transported for 

14 transportation and you provide those pictures. 

15 A Yes. 

16 Q So you reference UN 3373. But if 

17 you go back to the first page, you agree that 

18 what you cited them under didn't actually 

19 reference Category B infectious substances 

20 173.199; right? 

21 A Right. 

22 Q So --

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1 JUDGE GOODWIN: You know, the 

2 problem with that chart blown up, it's like 

3 reading an eye chart. I can see 49 CFR. 

4 MS. CHANDLER-SNELL: And I will 

5 move it up if I'm going to actually use it for 

6 demonstrative purposes, Your Honor. I --

7 JUDGE GOODWIN: Which reminds me 

8 of what somebody said the other day, that her 

9 mother passed the exam because when the doctor 

10 left the room, she memorized the chart. I 

11 have no intention of memorizing that one. 

12 MS. CHANDLER-SNELL: Unfort13 unately, you may be the only one in the room 

14 who doesn't have it memorized, Your Honor, at 

15 this point. 

16 MR. LOMAZOW: If it helps, just 

17 for the record -- I mean, if it helps, this is 

18 an exhibit. 

19 THE WITNESS: It 1S an exhibit. 

20 MR. LOMAZOW: It 1S an exhibit. 

21 JUDGE GOODWIN: When we break for 

22 the day, you can put it -- since we don't have 

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1 a jury box, you can put it over in the Jury 

2 box or you can put it over here, whatever you 

3 two agree on. 

4 MS. CHANDLER-SNELL: Yes, Your 

5 Honor. I'll do that. We can move it closer. 

6 JUDGE GOODWIN: Like I said, I can 

7 see a diamond and I can see 49 CFR and that's 

8 it. 

9 MS. CHANDLER-SNELL: Well, we 

10 won't quiz you on it now and I may point to it 

11 but just for reference purposes. It won't 

12 need to be in the record. 

13 BY MS. CHANDLER-SNELL: 

14 Q Now, Agent, ln Cll, the response 

15 of Corporate Air to your letter of 

16 investigation, if you look at paragraph three, 

17 Mr. McIver actually says the following is a 

18 response to each specific violation, each 

19 specific regulation cited in the letter of 

20 investigation, doesn't he? 

21 A Yes. 

22 Q So that shows or demonstrates, 

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1 doesn't it, that he addressed the provisions 

2 that were listed in your letter of 

3 investigation; correct? 

4 A It shows that he did address those 

5 back to me. Yes. 

6 Q Okay. And so there's no Section 

7 173.199 in his response that addresses those 

8 shipments, but there's also no Section 173.199 

9 in your letter of investigation that 

10 references the shipments; right? 

11 A Correct. 

12 Q Okay. At the bottom of page two 

13 of CI0 -- or Cll, I'm sorry -- bottom of page 

14 two, Mr. McIver writes: 

15 "In speaking with a field 

16 administrator for FedEx, the 

17 station from which these packages 

18 originated has been notified and 

19 is taking corrective actions." 

20 So this conversation with FedEx in 

21 some respects could be seen as the next step 

22 in trying to get these fixed; right? 

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1 A Okay. 

2 Q Well, I'm asking the question, so 

3 1S that agreement yes? 

4 A Well, I see that they they 

5 notified the field administrator of FedEx. 

6 Q Okay. 

7 A And that they say they're taking 

8 corrective actions, but it doesn't list what 

9 corrective actions. 

10 Q Well, let's talk about that. 

11 Prior to that, in Mr. McIver's letter, he has 

12 said that the package packages are 

13 processed by FedEx on behalf of Corporate Air i 

14 right? 

15 A Correct. 

16 Q He says that FedEx is responsible 

17 for putting in the paperwork for the pilot 

18 notification, for example. 

19 A Right. 

20 Q And he explains that the --

21 "Corporate Air reI ies on FedEx for 

22 the ini tial acceptance processing, 

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correct labeling, proper delivery 

of hazardous material pieces to 

the aircraft, and notification 

paperwork." 

So he's telling you that FedEx is 

responsible for these acti vi ties on our behalf 

and, in response to this let ter, I have 

followed up with FedEx who tells me they're 

looking at it from their side and the station 

has been notified and it's taking corrective 

actions; right? 

A Right. 

Q Okay. Then he says: 

"On the Corporate Air side, we 

will continue to monitor our crews 

in the field regarding" -- now go 

to page three of C11 "the 

loading process, the 

identification of hazardous 

material shipments and the proper 

procedures for handling these 

items. We have also tasked the 

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1 Director of Safety to conduct 

2 periodic inspections of FedEx 

3 stations to moni tor the processing 

4 of hazardous materials at the 

5 station from acceptance or 

6 delivery from a courier to 

7 placement on an aircraft." 

8 Right? 

9 A Right. 

10 Q So that's an addi tional action i 

11 right? 

12 A Sure. 

13 Q And that 1S not something that's 

14 required by 49 CFR, 1S it? 

15 A Correct. 

16 Q Okay. All right. Let's go to 

17 C12. That document is for the second flight 

18 you observed that's at issue in this case; 

19 correct? 

20 A Correct. 

21 Q Okay. So it's aircraft N710FXi 1S 

22 that right? 

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A Yes. 

Q Okay. Now, that document says, 

"No DG onboard"; right? 

A Correct. 

Q And, ln fact, there was no DG 

onboard that aircraft; correct? 

A Not any of the kind that was 

supposed to be on this notification. 

Q Well, in addition to that, haven't 

you told us that those 3373s didn't contain DG 

at all? 

A But at the time, we did not know 

that. 

Q Right. But the segment "No DG 

onboard" is correct, isn't it? 

A It is correct as far as the -- the 

alert goes. 

Q Okay. Well, let me ask you 

this 

A It wouldn't normally be on the 

Inbound Dangerous Goods Alert anyway is what 

I'm saying. 

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1 Q Oh l I agree. Even a properly 

2 marked --

3 A Yes. Yes. 

4 Q -- and declared 

5 A Correct. 

6 Q -- 3373 wouldn/t show up on this 

7 document anyway. 

8 A That is correct. 

9 Q So there/s really no significance 

10 to this document saying no DG was onboard. 

11 Because even if this had been UN 3373 1 there 

12 wouldn/t have been anything -- it would have 

13 said no DG onboard l wouldn/t it? 

14 A Correct. 

15 Q Okay. So there/s nothing wrong 

16 with that document at all? 

17 A No. 

18 Q Okay. Let/s go to C14. And C14 

19 is the letter of interpretation basically from 

20 PHMSA I which is a USDOT agencYi correct? 

21 A Correct. 

22 Q And the portion that you read in 

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your testimony earlier was regarding 

diagnostic specimen; right? 

A Correct. 

Q And you testified that nothing in 

this case had the words "Diagnostic specimen" 

on it; correct? 

A That's correct. 

Q Okay. But if you go up to the 

beginning of the paragraph marked A1, 

A Dh-huh. 

Q that second sentence there 

says: 

"Effective October 1st, 2006, 

under Docket No. " and it refers 

to it and then it says HM-226A 

"we replaced the proper 

shipping name and marking 

'Diagnostic specimen' with 

'Biological substances, Category 

B,' and a diamond-shaped mark 

containing the letters and numbers 

'UN 3373.'" 

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1 Right? 

2 A Correct. 

3 Q So these shipments didn' t have 

4 anything to do with diagnostic specimens 

5 except that a few years earlier they would 

6 have been called diagnostic specimens; right? 

7 A Right. 

8 Q If they had actually been UN 3373s 

9 but, in this case, they weren' t anyway i right? 

10 A Eventually found out, yes. 

11 Q Okay. So -- so before '06, the 

12 words "Diagnostic specimen' would have 

13 required more? 

14 A Yes. 

15 Q Okay. But now when our employees 

16 state "Diagnostic specimen," it doesn' t 

17 require anything? 

18 A Right. 

19 Q Okay. Now, your investigation of 

20 this case revealed that after the initial 

21 these shipments never flew on a FedEx aircraft 

22 at all? 

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1 A Yes, they did. 

2 Q I'm sorry. What aircraft was 

3 that? 

4 A One moment. 

5 (Pause. ) 

6 If you go to C3, this is Inbound 

7 Dangerous Goods Alert for the Bozeman flight, 

8 Flight 7772-13. And then go to the pictures 

9 of the 5.1 in C7. That was actually removed 

10 from that flight. 

11 Q But that flight doesn't this 

12 may be outside of your knowledge, but I'm 

13 going to ask you. Are you aware that that 

14 flight isn't on FedEx's flight certificate? 

15 A No. This is the Corporate Air 

16 from Bozeman to Great Falls. 

17 Q Okay. So that maybe I'll 

18 rephrase it. Those shipments never flew on 

19 any flight operated under FedEx's flight 

20 certificate? 

21 A No. It's Corporate Air. 

22 Q Okay. 

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1 A And then the other two flew from 

2 the point also Corporate Air. 

3 Q Okay. And that was also a 

4 Corporate Air flight? 

5 A Yes. 

6 Q Okay. And are you aware that 

7 FedEx doesn't actually operate any aircraft 

8 out of those two locations, that all the 

9 flights operated from those two locations are 

10 operated under feeder certificates? 

11 A I disagree. I believe there is 

12 flight that comes in from Martinez 

13 Q From the locations where these 

14 flights originated, not the flights where you 

15 did the inspections but the places where the 

16 flights originated --

17 A Okay. From Wolf Point in those --

18 yes, those are Corporate or Empire Air 

19 flights. 

20 Q Okay. So there was never a flight 

21 out of those two locations that operate under 

22 FedEx's flight certificate? 

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1 A That's my understanding. 

2 Q Okay. Okay. On C4, that lS the 

3 Dangerous Goods System Aircraft DG Manifest. 

4 And that lS for N933FE. There's a signature 

5 on there. It says "Captain Signature." Now, 

6 I believe your testimony was that a Corporate 

7 Corporate Air pilot provided you with this; 

8 is that correct? 

9 A Yes. 

10 Q Okay. 

11 A Yes. 

12 Q And do you believe that signature 

13 to be the Corporate Air pilot's signature? 

14 A Yes. 

15 Q Okay. 

16 (Pause. ) 

17 You had given some testimony 

18 earlier about the inspection sticker that 

19 FedEx DG specialists put on declared hazardous 

20 materials after they've inspected them. 

21 You're familiar with that sticker; right? 

22 A Yes, I am. 

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1 Q And are you familiar that 

2 sometimes it can be a stamp? 

3 A Yes. 

4 Q Okay. And you agree that that 

5 sticker's not actually required for any 

6 regulation; right? 

7 A Yes. 

8 Q What matters is the inspection, 

9 not the presence of the sticker? 

10 A Correct. 

11 Q Okay. And you're pretty familiar 

12 with air transport; right? 

13 A Correct. 

14 Q You've been In our facilities --

15 FedEx facilities, Corporate Air well, 

16 Corporate Air locations. You've been 

17 you've seen a lot of transportation; right? 

18 A Yes. 

19 Q Okay. And stickers sometimes come 

20 off, don't they? 

21 A Sure. 

22 Q Okay. 

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1 (Pause. ) 

2 Okay. Now, I think that the FAA 

3 attorney had asked you if the Agency followed 

4 the Sanction Guidelines in determining the 

5 appropriate sanction to propose in this case. 

6 Do you remember him asking you 

7 that question? 

8 A Yes. 

9 Q Okay. And you believe the Agency 

10 did follow the Sanction Guidelines? 

11 A Yes. 

12 Q Okay. And you believe the Agency 

13 looked at the totali ty of the circumstances in 

14 coming up with this? 

15 A Yes. 

16 Q Okay. And do you know what 

17 remedial measures were considered 

18 A No. 

19 Q in determining the Sanction 

20 Guidelines? 

21 A In determining the Sanction 

22 Guidelines themselves? 

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1 Q I mean, in determining the -- In 

2 determining the proposed sanction In this 

3 case. 

4 A No. 

5 Q Okay. And do you know what weight 

6 was given to which factors in determining the 

7 sanction proposed In this case? 

8 A It was the fact that it was a 

9 shipment that was marked as a as an 

10 oxidizer, which would carry a heavier weight 

11 and then also the two 6.2 biological substance 

12 Category B shipments, which would go more in 

13 a moderate weight. 

14 Q Okay. And that's the list 

15 categories of -- that are in 2150 

16 A Correct. 

17 Q -- which is Exhibit C15i right? 

18 A Yes. 

19 Q Okay. What other factors are 

20 considered in determining a sanction? 

21 A Some of the factors are a 

22 violation history and let's see a 

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1 violation history, what type of air carrler, 

2 whether they're a shipper of hazmat or not, 

3 those kind of things. 

4 Q Okay. And there are also other 

5 relevant factors that can be considered; 

6 right? 

7 A Sure. 

8 Q And that includes evidence of 

9 corrective action; right? 

10 A Sure. 

11 Q Okay. And -- let's see the 

12 other relevant category -- or other relevant 

13 sanction factors can be any number of things, 

14 can't it? 

15 A For example? 

16 Q That's what I'm asking you. 

17 A Yes. 

18 Q Okay. Can it be a lot of 

19 different things? 

20 A Oh, sure. Sure. If it's a 

21 declared shipment, if it's an undeclared 

22 shipment, if it's something that leaks or 

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spills, if there's something that causes death 

or inj ury, that kind of that kind of thing. 

Q All right. So whether it's 

declared or undeclared, whether it causes 

death, whether it causes I mean, severe 

injury, things like that. 

A Sure. 

Q But all of it having to do with 

safety and risk; right? 

A Mess I delays, yes. 

Q Okay. Now, at the in this 

case, was was this considered when 

determining a sanction, was it considered a 

declared or undeclared shipment, the 3373? 

A It was considered a declared. 

Q Okay. Well, what's an undeclared 

shipment? 

A When it has no indication on the 

outside at all or no paperwork no 

indication whatsoever of it possibly being a 

hazardous material. 

Q Well, if it has no indication 

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1 whatsoever on the outside that it's a 

2 hazardous material, why would you sanction 

3 anybody to begin with? 

4 A Well, because I see that these 

5 packages did have UN 3373 marking on both of 

6 them. 

7 Q Not In ours. 

8 A Oh, okay. 

9 Q But I'm saying if one of the 

10 factors you consider is whether it was 

11 declared or undeclared, and if your definition 

12 of undeclared is that there was no indication 

13 on any six sides of the box that this shipment 

14 contained DG, why would you get the sanction 

15 anyway? You wouldn't, would you? 

16 A Well, I can't give a sanction on 

17 something that I don't see. So a lot of times 

18 we don't even know that they're undeclared 

19 until something leaks, spills, explodes, 

20 catches fire, or tears apart. 

21 Q Okay. Well, that really goes into 

22 whether the shipper declared this or not, 

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1 doesn't it? That's what it means. 

2 A Sure. 

3 Q Isn't it? When determining 

4 whether it was declared or undeclared, that 

5 goes to the shipper's sanctions. That doesn't 

6 go to the carrier's sanctions, does it? 

7 A Right. 

8 Q 'Cause you wouldn't you 

9 wouldn't sanction a carrier for an undeclared 

10 shipment at all. 

11 A Not unless there was something on 

12 the package or something in the paperwork that 

13 might have some indicia of a hazmat. 

14 Q Such as 3373? 

15 A That is an indicia, yes. 

16 Q Okay. So a 3373 is an undeclared 

17 shipment. It's not a declared shipment? 

18 A No. It's a declared shipment 

19 because it does have that that indicia on 

20 there, so that's why FedEx or Corporate would 

21 have been sanctioned because there's something 

22 that should show that, Hey, this could be a 

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1 hazmat. 

2 Q Tell me of a shipment that a 

3 carrler could carry that a carrier could 

4 get cited for that the FAA would saYI That/s 

5 an undeclared so we I re going to give that 

6 weight in our sanctioning. 

7 A 11m sorry. Repeat that again. 

8 Q In determining what sanction is 

9 appropriate I tell me a shipment that a carrier 

10 could be cited for that would be undeclared 

11 where that would be a factor. 

12 A Like I said l if there was 

13 something that could have been seen ahead of 

14 timel if there was something on the trigger 

15 list I something that would have triggered them 

16 to have some constructive knowledge that it 

17 would be a hazmat. 

18 Q Like a UN 3373. 

19 A To mel it/s a hazmat. So when you 

20 see UN 3373 1 they should have rejected the 

21 shipment. 

22 Q What does a declared UN 3373 

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1 shipment look like on the outside? 

2 A It has a diamond square point, 

3 like what you have there behind you. 

4 Q Dh-huh. 

5 A And then underneath would also 

6 have "Biological substances Category B." 

7 Q Okay. These shipments didn't have 

8 any of that; right? 

9 A This had the UN 3373 which 1S a 

10 marking that is a transportation marking. 

11 It's a hazardous materials marking, Class 6.2 . 

12 Q So that would be declared? 

13 A Yeah. It's improperly marked, 

14 improperly declared, but it was declared. 

15 Q Okay. So what would be undeclared 

16 from a carrier perspective? I mean, you said 

17 that that is a guideline you consider in 

18 determining sanctions and you've cited a 

19 carrier and you're looking at the weight of 

20 whether it was declared or undeclared for the 

21 carrier. When would it be undeclared? 

22 A It would be undeclared had it not 

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1 had anything on it and then there was a spill 

2 or a leak and maybe it was found out to be a 

3 regulated material. 

4 Q And in that case, what would a 

5 carrier have done wrong to get sanctioned? 

6 A They wouldn't. 

7 Q Okay. So there would never be a 

8 time when the FAA considers on a carrier 

9 perspective for sanction whether it was 

10 declared or undeclared 'cause you'd never get 

11 the sanction . 

12 A I don't say never. I -- I can't 

13 say that. No. 

14 Q Okay. In this case, did the 

15 Agency consider, for either the sanction of 

16 FedEx or the sanction of Corporate Air, 

17 whether these were declared or undeclared 

18 shipments? Did that factor into the Sanction 

19 Guidance at all? 

20 A Yes. 

21 Q Okay. And you participated in 

22 that? 

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1 A They were declared shipments, 

2 improperly-declared shipments. 

3 Q How was that weighted by the FAA 

4 when they decided the sanctions for this case? 

5 A It's weighted by the FAA when you 

6 look at the matrix on page C-13 of the 

7 Sanction Guidelines. 

8 Q And I'm asking you what weight was 

9 it glven in the deliberations when the 

10 sanction recommendation was determined? 

11 A It was an improperly accepted and 

12 transported material. 

13 Q And what weight was that given? 

14 Was it given a lot of weight? Was it given a 

15 little weight? 

16 A It was given actually a moderate 

17 weight because one of them was Category Band 

18 the other was Category A. 

19 Q And you had a conversation about 

20 that when you determined how much weight to 

21 glve it? 

22 A Actually, I did have a 

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1 conversation with my supervisor about that. 

2 Q Okay. 

3 A And we went actually with a lower 

4 -- a lower sanction. 

5 Q You went with a lower sanction 

6 based on the fact that this only had the 3373 

7 on it and didn't have 

8 A No. Honestly, I went -- I went 

9 with a lower sanction because it was 

10 determined not to be hazmat after all. So I 

11 did try to cut you guys a break. The Agency 

12 tried to cut you a break. 

13 Q Okay. So when you say you cut us 

14 a break, you still used the Guideline; right? 

15 A Yes. 

16 Q 'Cause you have to. 

17 A I have to. 

18 Q So you didn't cut us a break. You 

19 followed your Sanction Guidelines which is 

20 what you've been testifying about. 

21 A I right. We followed the 

22 Sanction Guidelines. Yes. 

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1 Q Okay. 

2 A We did go to the lower end of the 

3 scale. 

4 Q Because you were required to In 

5 the overall consideration of the sanctions. 

6 A Well, I have to consider the 

7 sanctions. 

8 Q Okay. So you didn't cut us a 

9 break. You used the Guidelines the way 

10 they're meant to be used; right? 

11 A We could 

12 MR. LOMAZOW: Objection, Your 

13 Honor. At the end of the day, it's Legal who 

14 makes the ultimate determination as to what 

15 the sanction is. So this talk of cutting a 

16 break doesn't really do anything. Agent 

17 Luscher recommended a sanction. It was Legal 

18 that ultimately determines what sanction we 

19 actually lssue. 

20 MS. CHANDLER-SNELL: And, Your 

21 Honor, they opened the door on direct when 

22 they asked her if the Agency followed the 

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Sanction Guidelines in proposing this penal ty. 

MR . LOMAZOW : We asked that in 

regards to the sanction. 

JUDGE GOODWIN: It's the 

question's been asked and answered. 

MS. CHANDLER-SNELL: Yes, Your 

Honor. 

(Pause. ) 

BY MS. CHANDLER-SNELL: 

Q In determining the sanction, did 

the Agency consider the fact that FedEx didn't 

transport these items? 

A Yes. 

Q Okay. And is there a specific 

reference in the matrix or in the guidelines 

that tells you what -- what weight to give 

that? 

A Actually, I believe that the --

the sanctions were based on lmproper 

acceptance, failure to inspect, and improper 

storage - - well, not storage on Corporate, but 

failure to inspect and improper acceptance and 

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1 the failure to provide the pilot-in-command. 

2 Q Okay. So for the one act of 

3 inspecting or failing to inspect this 

4 shipment, the -- the shipment that had the 

5 oxidizer labeling for that one failure, you 

6 looked to cite both Corporate Air and FedEx 

7 for that act? 

8 A Yes. 

9 Q Okay. And that was because it was 

10 a FedEx employee? 

11 A That is because they're both 

12 certificated air carriers. One was inspecting 

13 and then the other one --

14 Q But --

15 A is still responsible. 

16 Q Corporate -- Corporate can get 

17 Joe's Inspection Service to do its 

18 inspections; right? 

19 A Yes. 

20 Q Okay. 

21 A May I make a comment? 

22 Q No. 

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1 A Okay. 

2 Q Regarding these substances that 

3 were actually inside the shipments in this 

4 case, none of those posed any risk to safety, 

5 did they, regarding the substances? 

6 A They were determined not to be 

7 regulated. 

8 Q So none of the substances had a 

9 risk to safety. Is that true? 

10 A Eventually after the 

11 investigation, we found out that was true. 

12 Q I understand that. So none of the 

13 substances that were involved in this were a 

14 risk to safety? 

15 A Which was found out after the 

16 investigation, yes. 

17 Q Do you agree with the statement I 

18 just said? 

19 A Yes. 

20 Q Okay. In the process of 

21 investigating with the shipper of the UN 3373 

22 shipments, 

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1 A Uh-huh. 

2 Q -- did you determine whether they 

3 eve had training to ship any kind of 

4 A I did actually. I did have a 

5 letter of investigation with -- with them and 

6 I did investigate them. 

7 Q Okay. Well, did you determine 

8 whether they were trained to ship either UN 

9 3373 or any --

10 A The shipments were not regulated. 

11 Q I understand. But you said that 

12 they had -- they accidentally used the wrong 

13 pak, so they had UN -- paks that were already 

14 marked with UN 3373 on 'em. Did you --

15 A Somebody had written UN 3373 on 

16 them with black ink. 

17 Q Okay. Did you determine whether 

18 anyone at that location was actually trained 

19 to ship UN 3373? 

20 MR. LOMAZOW: Objection, Your 

21 Honor. That has nothing to do with the --

22 with the case here. It has nothing to do with 

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1 FedEx accepting and Corporate Air 

2 transporting. 

3 JUDGE GOODWIN: Overruled. 

4 BY MS. CHANDLER-SNELL: 

5 Q Did you determine if anyone there 

6 was actually trained to ship UN 3373? 

7 A They are not because they don't 

8 typically ship UN 3373. 

9 Q Well, did they give any 

10 explanation as to why they had 

11 A 'Cause they had called the FedEx 

12 hotline and they were supposed to put the UN 

13 3373 on there. 

14 Q Okay. Did you disclose that 

15 information to FedEx at any time in the course 

16 of your investigation? 

17 A No, I did not. 

18 Q Don't you think FedEx would want 

19 to know if there was a shipper that claimed 

20 they had relied on a 1(800) number that we 

21 provide service 24 hours a day i don't you 

22 think that would be important? 

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1 A I hear that all the time with 

2 shippers. Oh, I called FedEx. They told me 

3 to do it this way. 

4 Q Yeah. And my question is: Don't 

5 you think that would be important to pass 

6 along to FedEx? 

7 A For every shipper? 

8 MR. LOMAZOW: Objection, Your 

9 Honor. It's not on us to help FedEx --

10 JUDGE GOODWIN: Overruled. 

11 MR. LOMAZOW: Okay. 

12 THE WITNESS: For every shipper? 

13 BY MS. CHANDLER-SNELL: 

14 Q If there is a shipper of hazmat 

15 that is claiming that FedEx gave incorrect 

16 information about shipping dangerous goods, 

17 don't you think that would be important to 

18 convey to the person allegedly giving the 

19 information? 

20 A Yes. But--

21 Q Couldn't that potentially even be 

22 a citation? 

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1 A Again, almost every shipper I go 

2 to that uses FedEx when they say when 

3 there's something wrong, they always blame 

4 FedEx. So if you would like for me to call 

5 FedEx every single time, I can do that. 

6 Q So what you're saying then is that 

7 you don't really believe that they called the 

8 (800) hotline and we gave them bad advice? 

9 A Right. 

10 Q Okay. As a side note, I still 

11 think you can call the (800) number . 

12 Are these substances that are 

13 categorized as UN 3373 a high risk in air 

14 transport? 

15 A They are a risk which is why they 

16 are regulated in air transportation. They are 

17 Category B of an infectious substance. 

18 Q In your dealings in your 11 years 

19 of inspections, have you ever seen an 

20 occurrence - - have you ever seen an occurrence 

21 where a plane had to have an emergency landing 

22 due to a UN 3373? 

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1 A No. 

2 Q Okay. Have you ever seen an 

3 occurrence where there has been leakage or 

4 failure of packaging on a 3373? 

5 A Yes. 

6 Q Okay. And at that point, your 

7 concern is with the everyone's concern is 

8 with the cleanup of that substance; correct? 

9 A Cleanup and exposure to anybody 

10 around. Yes. 

11 Q Okay. And you agree that cleanup 

12 doesn't occur in the air. It occurs on the 

13 ground. Ground personnel handle that? 

14 A That would be my understanding, 

15 yes. 

16 Q Okay. 

17 (Pause. ) 

18 Did the shipper of the UN 3373 

19 shipments, did that case conclude with a 

20 letter of warning or with a civil penalty 

21 letter? 

22 A I'm not so sure I can answer that. 

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1 Can I answer that? 

2 JUDGE GOODWIN: Unless you --

3 MR. LOMAZOW: Your Honor, I 

4 will --

5 JUDGE GOODWIN: Is there a 

6 security issue? 

7 THE WITNESS: I think that one --

8 I'm trying to keep all four of these things 

9 straight here in my head. 

10 JUDGE GOODWIN: If you know. If 

11 you don't know, say you don't know . 

12 THE WITNESS: Yeah. I don't know 

13 off the top of my head. 

14 BY MS. CHANDLER-SNELL: 

15 Q Well 

16 A Each case is 

17 Q -- are you just confused -- you 

18 don't know which one 

19 A Each case is different. And so 

20 since we're dealing with Corporate Air, FedEx, 

21 and then BioScience and Checker's, Inc. and 

22 then with the Empire stuff coming up in the 

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1 next couple days 

2 Q We've got two more. 

3 A -- yeah, so --

4 Q Well, to make it to make it 

5 easy, you know that the one against FedEx and 

6 the one against Corporate ended 1n civil 

7 penalty. On the other two, for the UN 3373 

8 shipments, did any of those shippers end up 

9 with a penalty more than a thousand dollars? 

10 A I don't know the amount but, yes, 

11 one of them did. I can tell you that. 

12 Q Okay. Do you know which one that 

13 is? 

14 A BioScience did receive a civil 

15 penalty. 

16 Q And that was the oxidizer case? 

17 A Yes. 

18 Q And do you know if that case was 

19 settled? 

20 A Yes. 

21 Q And it was settled for more than a 

22 thousand dollars 1S your understanding? 

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1 MR. LOMAZOW: Objection, Your 

2 Honor. 

3 THE WITNESS: I don't know. 

4 MR. LOMAZOW: It's not relevant to 

5 this case. 

6 JUDGE GOODWIN: Sustained. 

7 THE WITNESS: I can tell you that 

8 they have been visited again since and they 

9 are now in compliance with the regulations. 

10 MS. CHANDLER-SNELL: Okay. 

11 (Pause. ) 

12 JUDGE GOODWIN: We're going to 

13 take a ten-minute break. We'll go back on the 

14 record at 20 after. Remember, we want to 

15 finish at 4:30. So if either one of you -- in 

16 terms of what I've talked about as the 

1 7 schedule, if you get to a breaking point 

18 that's logical for your thought process, you 

19 know, around the morning, afternoon break or 

20 around lunch or around 4:30, I'm not adverse 

21 to breaking then. Okay. My case for San 

22 Francisco fell out. You know, if necessary, 

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1 we can go into next week, but I don't 

2 anticipate that. But I don't want to break 

3 your train of thought. So like if you get to 

4 ten o'clock and you get a change in thought 

5 process and you feel that's a comfortable time 

6 to break, then we'll do so. 

7 Okay. So we'll go off the record 

8 and be back on the record at 20 after. 

9 MS. CHANDLER-SNELL: Thank you, 

10 Your Honor. 

11 (Whereupon, at 3:11 p.m. off the 

12 record until 3:25 p.m.) 

13 JUDGE GOODWIN: Back on the 

14 record. Okay. Do you have any redirect? 

15 MR. LOMAZOW: I do, Your Honor. 

16 MS. CHANDLER-SNELL: Oh, sorry. 

17 MR. LOMAZOW: No. That's okay. 

18 I'll be brief. 

19 JUDGE GOODWIN: And how long do 

20 you think your next witness is going to take? 

21 THE REPORTER: Stay on the record, 

22 Your Honor? 

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1 MR. LOMAZOW: Actually, Your 

2 Honor, what I'm going to I did plan on 

3 having Agent Stiger testify next. But what 

4 I'm going to do now is I'm going to rest after 

5 Agent Luscher and I'm going to use him 

6 possibly for rebuttal testimony. 

7 JUDGE GOODWIN: Okay. 

8 MR. LOMAZOW: May I proceed, Your 

9 Honor? 

10 JUDGE GOODWIN: Go ahead. 

11 MR. LOMAZOW: Okay. 

12 REDIRECT EXAMINATION 

13 BY MR. LOMAZOW: 

14 Q Agent Luscher, these three 

15 packages the oxidizer, the UN 3373s 

16 ultimately they were not determined to be 

17 hazardous material; correct? 

18 A They were determined not to be 

19 hazardous material. 

20 Q Okay. So why did you write up 

21 violations then? 

22 A Because it lS against the 

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1 regulations to offer, accept, or transport 

2 something that's marked and offered for 

3 transport when it's not a hazardous material. 

4 Q Okay. Agent Luscher, please turn 

5 to the pictures which -- let me see -- which 

6 are marked C7. Looking at what's marked as 

7 page 1 of 16, that - - the UN 2428 in that 

8 picture, that as you stated is the hazmat 

9 identification number; right? 

10 A That is a UN number for a 5.1. 

11 Q Okay. And that's side one of the 

12 shipment. 

13 A Yes. 

14 Q And then turning to page 

15 photograph 2 of 16, lS that the same UN 

16 number? 

17 A Yes, it lS. 

18 Q Okay. Turning to the next 

19 photograph, which lS marked 3 of 16, is that 

20 the same UN number? 

21 A Yes. 

22 Q Okay. And then please turn to 

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1 page -- photograph 4 of 16. And once again, 

2 1S that the same UN number? 

3 A Yes. 

4 Q So that UN identification number 

5 1S marked on four separate sides of this box; 

6 correct? or this package which everyone 

7 referred to it as. 

8 A Right. 

9 Q Okay. Okay. Please turn to 

10 photograph 13 of 16 -- I'm sorry -- please 

11 turn to page -- photograph 14 of 16. That is 

12 the back of the package; correct? 

13 A I'm sorry. 

14 Q Oh, photograph 14 of 16 for the 

15 first UN 3373. 

16 A Yes. 

17 Q Okay. And as you stated -- and 

18 correct me if I'm wrong -- but that box was --

19 the box marked indicating the presence of a 

20 biological substance Category B was not 

21 marked; correct? 

22 A That's correct. 

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1 Q Okay. Please turn to the front of 

2 that photograph, which is -- or the front of 

3 that package, which is photograph 13 of 16. 

4 A Okay. 

5 Q That big -- that big label 1n the 

6 middle, 1S that the FedEx tracking? 

7 A Yes. That's where they scan and 

8 it shows the date and the --

9 Q Okay. 

10 A -- type of service as well as the 

11 tracking . 

12 Q So in order to scan and enter this 

13 into the system, the FedEx employee has to 

14 look at this -- at the front of this package; 

15 correct? 

16 MS. CHANDLER-SNELL: Objection, 

17 Your Honor. That's leading and, in addition, 

18 it calls for testimony regarding what FedEx 

19 employees do under our policy and procedure, 

20 and I don't think that the agent can testify 

21 as to what our employees do. 

22 JUDGE GOODWIN: Sustained. 

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1 BY MR. LOMAZOW: 

2 Q Agent Luscher, in your experience, 

3 what does the presence of that tracking number 

4 indicate? 

5 A That 1S a scanning and tracking 

6 label that I have observed Federal Express 

7 employees use when they're sorting packages. 

8 Q Okay. Okay. Agent Luscher, 

9 please turn to the FedEx letter of response to 

10 your letter of investigation, which is C9. 

11 A C9? 

12 Q Yes. 

13 A Okay. 

14 Q The first page. As Counsel had 

15 you read, it says: 

16 "BZN management held a station 

17 meeting wi th all employees as a 

18 resul t of the acceptance error. 

19 Proper handl ing and the proper 

20 procedure for acceptance of DG 

21 packages were addressed at this 

22 meeting." 

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1 In your experience, is that 

2 something that should have been addressed 

3 beforehand? 

4 MS. CHANDLER-SNELL: Objection, 

5 Your Honor. I don't think that I don't 

6 think that the agent can testify to whether 

7 this was or wasn't covered beforehand. I 

8 think it's miscategorizing the exhibit. 

9 JUDGE GOODWIN: Her testimony was 

10 she would have expected this to be part of 

11 normal procedures and that was her response in 

12 response to cross-examination. So from that 

13 standpoint, the question's redundant. 

14 MR. LOMAZOW: Okay. 

15 BY MR. LOMAZOW: 

16 Q Now, all -- it says: 

17 "All employees were issued a memo 

18 outlining the importance of proper 

19 DG acceptance." 

20 In their response, did they 

21 include this memo? Did FedEx include this 

22 memo? 

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1 A No. 

2 Q Okay. Agent Luscher, please turn 

3 to what is marked as C14. Now, Counsel 

4 discussed wi th you that, in the past, these --

5 these biological -- what's now labeled as a 

6 biological substance Category B was marked as 

7 a diagnostic specimen; is that correct? 

8 A Yes. 

9 Q Okay. At the time of these 

10 violations, what according under 49 CFR, 

11 what were they -- what was -- what was the 

12 proper name for them? 

13 A The -- if it is stated to be a UN 

14 3373, it's biological substances Category B. 

15 Q Okay. So not a diagnostic 

16 specimen? 

17 A That is correct. 

18 Q Okay. Diagnostic specimen is no 

19 longer a regulated hazardous material; 

20 correct? 

21 A Correct. 

22 Q Biological substance Category B 

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1 is? 

2 MS. CHANDLER-SNELL: I object to 

3 leading, Your Honor. 

4 JUDGE GOODWIN: Overruled. 

5 (Pause. ) 

6 MR. LOMAZOW: Okay. 

7 BY MR. LOMAZOW: 

8 Q Agent Luscher I'm sorry 

9 please turn back to the exhibit listed -- to 

10 FedEx's response to the letter of 

11 investigation at C9 . 

12 A Okay. 

13 Q Reading from the -- where it says: 

14 "Regarding the classified 5.1 

15 shipment, the pick-up courier 

16 mistakenly did not bring this 

17 package to the attention of the 

18 dangerous goods specialist for 

19 inspection. The package would 

20 have been rejected by the DG 

21 specialist for the shipper's error 

22 if inspected." 

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1 Is that the response? 

2 A Yes. That's what it says. 

3 Q Okay. So the response wasn't that 

4 the sticker fell off. The response was this 

5 package should have been rejected? 

6 A Should have been inspected and 

7 rej ected. 

8 Q I'm sorry. Yes. Okay. Now, in 

9 terms of safety with hazardous materials, in 

10 your opinion, 1S that the reason -- is that 

11 one of the reasons at least that hazardous 

12 materials are marked as hazmat is because of 

13 safety? 

14 A Yes. 

15 Q Okay. And in regards to the 

16 oxidizer, that's a in regards to the 

17 Sanction Guidance, that's a maximum; correct? 

18 A Yes. 

19 Q Okay. And safety requires that 

20 these hazmat packages be properly marked, 

21 regardless of whether they ultimately contain 

22 hazmat or not; correct? 

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1 MS. CHANDLER-SNELL: Your Honor, 

2 I'll object to leading again. 

3 JUDGE GOODWIN: Yeah. 

4 leading. Sustained. 

5 BY MR. LOMAZOW: 

6 Q Okay. Do these --

7 MR. LOMAZOW: Actually, you know 

8 what. I'll just withdraw. No further 

9 questions, Your Honor. 

10 JUDGE GOODWIN: Okay. Anything 

11 else of this witness? 

12 MS. CHANDLER-SNELL: Briefly on 

13 recross, Your Honor. 

14 JUDGE GOODWIN: All right. Based 

15 only on the questions from redirect. 

16 MS. CHANDLER-SNELL: Yes, Your 

17 Honor. 

18 RECROSS EXAMINATION 

19 BY MS. CHANDLER-SNELL: 

20 Q You just stated that the reasons 

21 these items are marked as dangerous goods and 

22 regulated is because they have safety 

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1 implications; right? 

2 A Correct. 

3 Q And these markings and labelings 

4 are all required because of safety? 

5 A Correct. 

6 Q And in order for these packages to 

7 travel safely, they have to be easily 

8 recognizable both to agents, to carriers, to 

9 anyone who might come into contact with them; 

10 right? 

11 A Correct . 

12 Q And that's the purpose of the 

13 regulation? 

14 A Yes. 

15 Q And the regulations require what 

16 is needed for safety? 

17 A Right. 

18 Q And neither of these shipments had 

19 all the things that were required - - that were 

20 needed for the safety and recognition of these 

21 items when they were tendered by the shipper; 

22 right? 

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1 A Exactly. 

2 Q Okay. The first question that you 

3 were asked on redirect, I believe, was that 

4 none of the items actually transported 

5 involved in this case were actually dangerous 

6 goods; right? 

7 A After the investigations occurred, 

8 right. 

9 Q Okay. Well, they -- before the 

10 investigations occurred, they weren't 

11 dangerous goods; right? 

12 A But at the time, we did not know. 

13 Q Okay. And you were asked why you 

14 pursued those and you said that it's 

15 because -- why did you pursue these citations 

16 when the actual substances weren't regulated? 

17 A Because it's against the 

18 regulations to offer, accept, or transport 

19 something that 1S labeled or declared as a 

20 hazmat when it's not actually hazardous 

21 material. 

22 Q And when you say that, you're 

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1 referring to 172.401; 1S that correct? 

2 A If I can look at my bookl I could 

3 tell you. I don/t have that in front of me. 

4 Q Let me read it to you and see if 

5 the 

6 "No person may offer for 

7 transportation and no carrier may 

8 transport a package bearing ... " 

9 WeIll let I s see Section (a) 

10 says: 

11 "Except as otherwise provided in 

12 this section l no person may offer 

13 for transportation and a carrier 

14 may transport a package bearing a 

15 label specified in this subpart 

16 unless the package contains a 

17 material that is a hazardous 

18 material and the label represents 

19 a hazard of the hazardous material 

20 in this package." 

21 Right? 

22 A lId like to see that in front of 

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1 me. Actually, if I could have my set of 

2 regulations, I'd appreciate that. 

3 MR. LOMAZOW: I have a set here. 

4 JUDGE GOODWIN: Show it to 

5 Counsel. 

6 (Pause. ) 

7 MR. LOMAZOW: Is your book here? 

8 THE WITNESS: They should pretty 

9 much all say the same. 

10 MS. CHANDLER-SNELL: And for the 

11 record, we're looking at 49 CFR 172.401. 

12 (Witness reviewing manual.) 

13 THE WITNESS: That is one of them, 

14 yes. 

15 BY MS. CHANDLER-SNELL: 

16 Q Are there others? 

17 A I believe so. If you give me a 

18 moment. 

19 (Pause. ) 

20 I have to look ln my head. That's 

21 a scary thing. 

22 (Pause. ) 

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1 What I was looking at would be 

2 171.2(k). 

3 JUDGE GOODWIN: What is the 

4 citation again? 

5 THE WITNESS: 171.2(k) . 

6 BY MS. CHANDLER-SNELL: 

7 Q Okay. So under 171.2(k), will you 

8 read that to the Court? 

9 A Sure. 

10 "No person may, by marking or 

11 otherwise, represent that a hazardous material 

12 is present in a package contained in a motor 

13 vehicle, rail car, aircraft, or vessel if the 

14 hazardous material is not present." 

15 Q Okay. Now, you agree that goes 

16 towards the shipper; correct? 

17 A Correct. 

18 Q Okay. Neither FedEx nor Corporate 

19 Air was cited under that provision; right? 

20 A That's correct. 

21 Q 'Cause that shows that the shipper 

22 acted incorrectly by marking something 

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1 representing it was a hazardous material when 

2 it was not. 

3 A Right. 

4 Q But you would agree that ln the 

5 complaint where FedEx and Corporate Air were 

6 cited, that FedEx and Corporate Air were cited 

7 for transporting a hazardous material, 

8 accepting a hazardous material, loading a 

9 hazardous material, carrying a shipment of 

10 hazardous material, that the regulations that 

11 FedEx and Corporate Air were cited under had 

12 to do with shipments of hazardous materials; 

13 right? 

14 A Correct. And if you look at 173.5 

15 I'm sorry -- 175.3, it is in regards to 

16 accepting a hazardous material shipment for 

17 transportation not prepared in accordance with 

18 Subchapter (c). So if it wasn't prepared 

19 properly, that's why we cited that. 

20 Q Okay. But in 175.3, it says, "A 

21 hazardous material that is not prepared for 

22 shipment in accordance with this subchapter, " 

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1 but these weren't hazardous materials. 

2 A But they were prepared partially 

3 In accordance with the subchapter. 

4 Q But you agree none of them were 

5 hazardous materials? 

6 A At the end of the investigation, 

7 yes, we realized that none of them were. 

8 Q Right. 

9 MS. CHANDLER-SNELL: Nothing 

10 further. 

11 MR. LOMAZOW: Your Honor, just one 

12 more quick question. 

13 FURTHER REDIRECT EXAMINATION 

14 BY MR. LOMAZOW: 

15 Q Agent Luscher, In regards to the 

16 safety issue, one of the considerations --

17 JUDGE GOODWIN: To which issue? 

18 MR. LOMAZOW: The safety issue --

19 JUDGE GOODWIN: Okay. 

20 MR. LOMAZOW: -- of UN 3373. I'm 

21 sorry. 

22 BY MR. LOMAZOW: 

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1 Q One of the concerns lS also 

2 emergency responders; correct? 

3 MS. CHANDLER-SNELL: I obj ect to 

4 leading, Your Honor. 

5 JUDGE GOODWIN: It's beyond the 

6 scope. 

7 MR . LOMAZOW : Okay. Actually, 

8 I'll withdraw it. 

9 JUDGE GOODWIN: Anything else of 

10 this witness? 

11 MR. LOMAZOW: No. 

12 JUDGE GOODWIN: Okay. Do you want 

13 her to remain? It's up to you. She's the 

14 FAA's witness. It's up to the FAA whether 

15 she's to remain. The Court doesn't care. I'm 

16 gOlng to instruct you not to discuss your 

17 testimony with anybody during the pendency of 

18 the hearing. 

19 And are you also going to be a 

20 witness in the case that's later this week? 

21 THE WITNESS: Yes. 

22 JUDGE GOODWIN: Okay. Then I'm 

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gOlng to ask you not to discuss your testimony 

at least till all of the cases are concluded. 

THE WITNESS: Okay. 

JUDGE GOODWIN: With what you 

said, what you should have said, or anything 

else. You shouldn't discuss it with anybody, 

and that includes the FAA attorney. Now, 

whether you stay in the building is up to the 

FAA attorney. 

I don't have any need -- any of 

the witnesses in any of the cases are welcome 

to be here, as long as they're accessible. 

So you can step down if you want. 

(The witness was excused.) 

JUDGE GOODWIN: I'm especially 

concerned about the doctor. I don't know what 

schedule he's on, but this would be true with 

anybody. But if we've got a witness, like a 

doctor coming ln who's got a strict point in 

time, we'll break, take that testimony, and 

then come back on. 

MS. CHANDLER-SNELL: I appreciate 

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1 that, Your Honor. You know, we have the two 

2 witnesses -- we have two experts corning in 

3 tomorrow. Their testimony should work in 

4 nicely. And then the next day, we have two 

5 wi tnesses as well. I think that we'll be able 

6 to manage that agreeably, but I appreciate you 

7 accommodating their schedules. 

8 JUDGE GOODWIN: I mean, the 

9 Government people get paid to be here and the 

10 other people don't necessarily, but 

11 anything else you want -- so we're finished 

12 with this witness. What's the position of 

13 your case? 

14 MR. LOMAZOW: Your Honor, at this 

15 time we rest. 

16 JUDGE GOODWIN: So at this point, 

17 Ms. Snell, you could present a witness but 

18 unless you've got one that you can do in 40 

19 minutes, my suggestion is you may want to wait 

20 and we'll start promptly at 9:00 in the 

21 morning. 

22 MS. CHANDLER-SNELL: We can start 

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1 ln the morning, Your Honor. For the record, 

2 I would like to make a motion to dismiss based 

3 on the FAA's failure to prove the provisions 

4 and the citations that are -- the violations 

5 that are alleged in the complaint. 

6 JUDGE GOODWIN: Okay. What -- I'm 

7 going to deny it at this point. You're 

8 allowed to re-offer it again, it's a 

9 jurisdictional motion. So if the FAA hasn't 

10 proved their case, then whether we do it now, 

11 whether we do it later, but at this point I'll 

12 deny the motion. 

13 MS. CHANDLER-SNELL: Thank you, 

14 Your Honor. 

15 JUDGE GOODWIN: One of the things 

16 I want you to think about while I'm thinking 

17 about it, I brought this case up in the past. 

18 There's -- I am presuming that a portion of 

19 this case is going to address considerations 

20 done by hazardous material, which is a 

21 component of the Department of Transportation. 

22 I had a case of Williamson Transport - - let me 

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give you the citation -- which was a Federal 

Motor Carrier Safety case. And while I'm 

looking this thing up, your first reaction is 

why is he bringing that up, and I'll tell you 

ln a minute. Williamson Transport was a 

Federal Motor Carrier case, 2004-17247. The 

reason I'm bringing that up is I had a 

hearing, issued an opinion, went up to General 

Counsel's Office and they -- the argument for 

the Agency in that case was that I should 

apply federal law to the case. Went upstairs 

and I had looked to the law of other agencies. 

There wasn't any DOT agency law, so we looked 

to some other regulatory decisions, federal 

regulatory decisions. So Office of General 

Counsel reversed my case and held that it was 

not proper for me to consider the law of other 

federal agencies in making my determination 

and that I had to apply North Carolina state 

law to determine continuity of ownership in 

the case. 

I'm only a judge, okay. I think 

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1 they're wrong. But if -- I think you need to 

2 look at that case and see whether it's got any 

3 applicability either way in this case and, if 

4 so, address it. Because -- I mean, I could 

5 certainly make an argument that it is a fact6 specific decision. Not only was I reversed, 

7 but the Federal Motor Carrier asked for a 

8 review of the decision, which only further 

9 complicated it because when they denied the 

10 petition for review, they essentially invited 

11 the Agency to reconsider the issue if they 

12 wanted to in the future and then, and my words 

13 are, they'd reflect on it, to which my 

14 response lS, Now what have they said? 

15 My concern is the principle that 

16 if the two of you get into an argument as to 

1 7 whether other DOT modes, regulat ions should be 

18 applied and one component of DOT is saying, 

19 well, I can't look at other modes and I can't 

20 look at other federal agencies when there's no 

21 law, then where are we? I mean, it's -- I 

22 think -- well, it doesn't matter what I think. 

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1 They've overruled me. But--

2 MS. CHANDLER-SNELL: Are we still 

3 on the record? 

4 JUDGE GOODWIN: Yeah. 

5 MS. CHANDLER-SNELL: Okay. 

6 JUDGE GOODWIN: Yeah. And I'm 

7 saying that because you need to read the 

8 Williamson case, the two of you, decide 

9 whether it has applicability to this case and, 

10 if so, address it. If you don't think it has 

11 applicability, then don't address it . 

12 But, you know, we're here trying 

13 this case and someplace down the road somebody 

14 else may bring up the -- the Williamson case 

15 on one side of the other of this and say that 

16 we applied the law incorrectly ln this case. 

17 So -- and you also there are 

18 two decisions after mine in Williamson. One 

19 was the original reversing me and the other 

20 one was an application for reconsideration 

21 which was denied. I've talked to the 

22 attorneys who appeared before me and that's 

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1 why I'm bringing this up. 

2 Any other matters that we need to 

3 do on the record today? 

4 (No response.) 

5 Okay. What we'll do is go off the 

6 record. I'm going to make sure that the 

7 door's locked. I wouldn't leave goods and 

8 val uables in, but I think you're going to 

9 leave your stuff here. And generally what I 

10 do is when I walk out, I tell the esos -- I'll 

11 probably flip the lock on that before I leave, 

12 but I'll tell the court security officers that 

13 we're out of here and they're generally pretty 

14 good about coming up here and making sure the 

15 door's locked. 

16 Then I'll be here sometime shortly 

1 7 after 8: 30 to give you access to the courtroom 

18 if the esos aren't here to let you in. So 

19 we'll go off the record. 

20 (Whereupon, the above-entitled 

21 matter went off the record at 3:50 p.m., to 

22 reconvene the following day at 9:00 a.m.) 

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202-234-4433 

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C E R T I F I CAT E 

This is to certify that the foregoing transcript 

In the matter of: Federal Express 

Before: US DOT 

Date: 08-22-11 

Place: Seattle, Washington 

was duly recorded and accurately transcribed under 

my direction; further, that said transcript is a 

true and accurate record of the proceedings. 

(202) 234-4433 

Court Reporter 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.w. 

WASHINGTON, D.C. 20005-3701 www.nealrgross.com