03/30/2011 12:12 FAX 2024935142 FAA * DMS liOOI/008 

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KYLEE.L0MA70W 

FA A OFKICIi OK REGIONAL COUMSEL 

1601 LIND AVE., SW 

R£N TON, WASHINGTON 98057 

TELEPHONE: 425.227.1847 

FACSIMILE: -125.227.1007 

-PARTWENTOF 

V'i^PORTATiOf' 

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RECEIVED 

UNITED STATES O F AMERICA '^^'' ^ ^ ^^^^ 

NATIONAL Tl^ANSPORTATION SAFETY BOARD HFARINf ^ nOCKf^' ^ 

OFFICE OF ADMINISTRATIVE LAW JUDGES nc;«i\n^V 3 I \J\^rKtL ^ 

WASHINGTON, D.C. 

In the Matter of: 

Federal Express Corporation 

FAA DOCKET CPl 0NM0006 

FAA Case No. 2009NM70056 

DMS No. FAA-2010-0790 

Judge Goodwin 

TO: 

RESPONDENT'S FTRST SET OF INTERROGATORIES AND 

REQIJESTS FOR PRODUCTION OF DOCUMENTS AND 

ITEMS PROPOUNDED TO THE COMPLAINANT 

To; Respondent 

In accordance with 14 C.F.R. § 13.220, Complainant responds to Respondent's discovery 

reque-sts as follows, 'with the understanding that these reque-sted Interrogatories and request lor 

production are limited to the issue of sanction. Complainant also reserves the right to supplement if 

additional information comes to light 

Interrogatory No. 1: State the name, business address and job title of each person supplying 

factual information used to compile the answers to these Interrogatories and requests for 

production and identify the Interrogatories and requests for which each person supplied 

information. 

Mallory Luschcr 

1601 Lind Avenue SW, Suite 530 

Renton, WA 98057 

Security Specialist (Hazardous Materials) 

425-227-1380 

Complaim's Response lo Reispondcm's Initial Discovery RequesE 

Federal Express - 2009NM700056 & CP10NM0006 

Page 1 of 8 

KYLE e.. I.OMAZ0*, FA A ATTORNEY 

TEL: 425-227.1S47; FAX: 425.227.1007 
03/30/2011 12:13 FAX 2024935142 FAA DMS 21002/008 

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David C. King 

1601 Lind Avenue SW, Suite 530 

Kenton, WA 98057 

Security Specialist (Hazardous Materials) 

425-227-1991 

Thomas L. Kenny 

1601 Lind Avenue SW, Suite 530 

Renton, WA 98057 

Security Specialist (Hazardous Materials) 

425-766-4497 

Interrogatory No. 2: Identify each person by full name, job title, business address and telephone 

number who has knowledge or information concerning or related to the allegations of your 

Complaint and, for each identified person, provide a brief description of his or her knowledge 

regarding the same. 

Answer: 

See answer to Interrogatory No. 1. Agent Luscher was an inspector that conducted an 

investigation that produced facts that are the basis of the Complaint. Agent King was an 

inspector that was with Agent Luscher during the inspection. Agent Kenny was a .supervisor that 

reviewed the case file during the deliberative process. 

Interrogatory No. 3: Identify by full name, job title, business address and telephone number each 

witness you intend to call at the bearing of this matter. 

See answer to Interrogatory No. 1 and No. 6. 

Interrogatory No. 4: Provide a summary of the facts and opinions to which each intended witness 

identified in Interrogatory No. 3 is expected to testify. 

Answer: The substaJice of the testimony to be oITercd by each of the witnesses identified in 

Interrogatory No. 1 is as follows: 

a) Mallory Luscher is expected to testify about what she discovered during the course of her 

investigation ofthis case, i.e., Enforcement Investigative Report No. 2009NM700065. She 

will testify that the proposed sanction is consistent with that guidance and the sanction 

proposed follows within the sanction range under the Administrator's sajiction guidelines, 

b) Thomas Kenny is expected to testify about what he discovered during (he course of his 

investigation of ^ s case, i.e.. Enforcement Investigative Report No. 2009NM700056. 

FAA reserves the right to identify any witnesses who may be called as experts prior to the hearing 

in this matter. 

Interrogatory No. 5: Identify each document and item you intend to introduce at the hearing ofthis 

matter. 

Answer: See previously produced Items of Proof from the Agency's case. However, out of an 

abundance of caution the entire releasable portion of the Agency's case file is produced anew. In 

Complaint's Response lo Respondent's Initial Discovery Reque.sis 

Federal Express - 2009NM700056 & CP10NM0006 

Page 2 ofS 

KYLE E. LOMAZOW, FA A ATTORNEY 

TEL: 425.227.1847; FAX: 425,227.1007 
03/30/2011 12:13 FAX 2024935142 FAA DMS 11003/008 

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addition, Complainant will offer an extract of FAA Order 2150.3B; specifically, Appendix C -

the Administrator's sanction guidance for hazardous material cases. 

Interrogatory No. 6: Identify by name, business address and phone number the FAA inspector 

who conducted the February 3, 2009 inspection that is related to this matter and provide the dates 

of his or her employment with the FAA and his or her job tiLle(s). 

Answer: 

Mallory Luscher 

1601 Lind Avenue SW, Suite 530 

Renton, WA 98057 

Security Specialist (Hazardous Materials) December 14, 2002 - Present 

Program Analyst - September 24, 2000 - December 14, 2002 

Interrogatory No. 7: State the factual basis for the issuance of the subject Final Notice of Proposed 

Civil Penalty. 

Answer: 

No Final Notice of Proposed Civil Penalty was issued in this case. After Respondent received 

the Amended Notice of Proposed Civil Penalry, it exercised its right to request a hearing per 14 

C.F.R. § 13.16(f)(3). Because Respondent opted to request a hearing instead of holding another 

informal conference, the Complaint was filed per 14 C.F.R. § 13.l6(i). Attached is Respondent's 

request for a hearing dated September 7, 2010, 

InteirQaatorv No. 8: State the factual basis, statutory basis, and any other information that may be 

presented at the trial ofthis matter to support the assessment of the $30,000 penalty in the subject 

Final Notice of Proposed Civil Penally. 

Answer: 

The statutory basis is 49 U.S-C. § 5123, Without waiving said objections, the facts presented will 

be the facts in Agency case file wliich has already been produced, Respondent's violation history, 

and the factors set forth in the Administrator's sanction guidance. 

Interrogatory No. 9: Describe the actions taken in relation to the shippers of these packages, 

including the shipper's name, addrcs.s, phone number, contact with ttie FAA, whether a letter of 

investigation was issued, whether a civil penalty was proposed, and the outcome of any • 

investigation. 

Answer: Objection, irrelevant Without waiving said objection: 

Case Number 2009NM700057 

VALLEY MEDICAL SERVICES 

2425 Highway 2 East 

Kalispell, MT 59901 

Closed with Civil Penalty ($1,000) for violations of the following regulations: 

49 C.F.R. 171.2(e), 171.2(k), 172.303,172.704(a)(2), 173.199(a)(5) 

Complaint's Response lo Respondent's Initial Discovery Requests 

Federal Express - 2009NM700056 & CP10NM0006 

Pa^eS of 8 

kVLh E. L0MA20W, FAA ATTORNEY 

TEL: 425.227.1847; FAX: 425.227.1007 
03/30/2011 12:13 FAX 2024935142 FAA DMS @l004/008 

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Case Number 2009NM700061 

HEXION SPECIALTY CHEMICALS 

3670 Grant Creek Road 

Missoula, MT 59808 

Closed with Civil Penalty ($1,500) for violations of the following regulations: 

49 C.F.R. § §171.2(k), 172.303, 172.704(a)(2) 

Tnterrogatory No. 10: State the relevance and factual ba.sis for the inclusion of the allegations in 

Paragraph 9 of the Complaint in this matter. 

Answer: 

The lack of a FedEx dangerous goods inspection sticker indicates that this shipment was never 

examined by FedEx. 

Interrogatory No. 11: State any legal basis, statutory basis, or factual basis to support the 

allegation in Paragraph 15 of the Complaint, Specifically, specify where the requirement for the 

Respondent to inspect the inner packing of a shipment is noted, how that inspection is supposed 

to incur, and any other information that will be relied upon at trial to support the relevance ofthis 

allegation. 

Answer: 

In the absence of other indications there is no requirement. However, here on tlie face of the 

shipment, there were indicators that the shipment was not properly inspected. Further, the outer 

package was clear plastic so observation of the inner package did not require opening it. 

Interrogatory No. 12: State any potential threat to safety posed by the allegations included in 

Paragraph 17 of the Complaint, and who might testify to that alleged safety threat at trial. 

Answer: 

See response to Interrogatory No. 1 as to who may testify. In regards to potential threats lo 

safety, when air carriers do not follow the HMR, there is a great risk of danger to the public at 

large. Tlie issue is not whether the substance in any given case is dangerous, but whether the 

HMR is being followed. UN3373 is regulated due to the possible release of infectious 

substances into the environment, 

Interrogaiorv No. 13: Identify any and all case law tliat you contend would support the issuance of 

the subject Final Notice of Proposed Civil Penalty and the amount proposed. 

Answer: Complainant is not required to conduct legal research for Respondent. Further, no 

Final Notice of Proposed Civil Penalty' was issued in this case. 

Interrogatory No. 14: Identify and describe any potential threat to safety posed by the allegations 

included in Paragraph 8 of the Complaint, and who might testify to that alleged safety th.reat at 

trial. 

Complaint's Response to Respondent's Initial Discovery RequesK 

Federal Express - 2009NM700056 & CP10NM0006 

Page 4 of 8 

K YJ y. v.. IJOUAZOW. fAA ATTORNEY 

TEL: 425.227.1S47; FAX: 425.227.10O7 
03/30/2011 12:13 FAX 2024935142 FAA DMS lgl005/00£ 

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Answer: 

See response to Interrogatory No. 1 as to who may testify. In regards to potential threats to 

safety, the issue is not whether the shipment or substance in any given case is dangerous, but 

rather whether the air carrier is follovying tifie I-IMR, which clcarfy indicates that ORM-D 

packages being transported by air must be marked "ORM-D-Air" and be accompanied by a 

shipper's declaration. 

IntcrroaatorvNo. 15: Identify- by case name and number any FAA cases brought in your region 

since 2008 where companion cases have been brought against both an air carrier and a feeder 

operator of the same or a similar relation that is shared by FedEx and Empire in the case at bar. 

Answer: 

The Administrator objects to this InteiTogaiory on the grounds that it is not relevant to the instant 

case. 

Interrogatory No. 16: Identify by case name and number, or other identifying number, any 

mishaps of wliich your region is aware since 2000 that involve the diversion of an aircraft or 

other emergency response related to dangerous goods of the nature of those involved in this case 

(ORM-D-Air or UN3373), including airUne and result. 

Answer: 

The Administrator objects to this interrogatory on the grounds that the requested informaiion is 

not relevant to the instant case and retrieval of the information would be unduly burdensome, as 

it would require retrieval and review of every EIR involving hazardous materials since the year 

2000. 

Interrogatory No. 17: State each and every statutory or legal basis that you allege requires the air 

carrier to inspect packages containing UN3373. 

Answer: 

49 C.F.R. § 175.3 states that ''a hazardous material that is not prepared for shipment in 

accordance with this subchapter may not be offered or accepted for transportation or transported 

aboard an aircraft." 

Interrogatory No. 18: Identify each and every way that the actual item contained in the package 

marked "ORM-D" might have impacted safety, and how the package .should have been marked 

and labeled in order lo travel properly. 

Answer: 

Any shipment labeled ORM-D Air is a hazardous material and hazardous materials are regulated 

by the HMR. The HMR does not leave it up to individual carriers to determine whether a 

particular shipment is dangerous or not. The HMR requires that every "ORM-D" package being 

transported by air must be marked "ORM-D-Air." 

Complaini's Response to Respondent's Initial Discovery Requests 

Federal U-vpre.is - 2O09NM700O56 & CP10NM0006 

Page 5 ofS 

KYLE E, L0MA7.0W, FA A ATTORNEY 

TEL: 425,227.1847; FAX: 425.227,1007 
03/30/2011 12:13 FAX 2024935142 FAA DMS 21006/008 

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Request for Production No. 1: Produce the entire FAA file regarding ihc subject Final Notice of 

Proposed Civil Penalty that was issued against Respondent and regarding the February 3, 2009 

inspection that is related to tliis matter, including a copy of the FAA inspector's notes, if any, 

taken contemporaneously or in relation to the aforementioned February 3, 2009 inspection. 

Please note that this request does not intend to seek documents or items that arc protected by the 

attorney-client privilege. 

Answer: No Final Notice was issued. Respondent has received the releasable portion of the 

Agency's case file and it is again provided in this discovery response. The inspector no longer 

has any notes other than what are contained in the documents previotisly produced. 

Request for Production No. 2: Produce any and all documents or items that concern or relate to the 

allegations of your Complaint. 

Answer: See response to Request for Production No, 1. In addition, the Agency will offer the 

Administrator's sanction guidance, a copy of which can be found at www.faa.gov. 

Request for Production No. 3: Produce any and all documents or items that either support or tend 

to refiitc any coniention or affirmative defense raised by Respondent in its Answer and Statement 

of Affirmative Defenses. 

Answer: Complainant is not aware of any documents that support or tend to refute Respondent's 

affirmative defenses. 

Request for Production No. 4: Produce a copy of any document or item you intend to introduce ai 

the hearing ofthis matter or make the same available for inspection at a mutually convenient 

place and time if copying the document or item is unfeasible or impossible. 

Answer: See Response to Request for Production No. 2. Complainant reserves the right to 

supplement this request (or any other) if this changes. 

Request for Production No. 5: Produce the resume or curriculum vitae of the FAA inspector who 

conducted the February 3, 2009 inspection that is related to this matter. 

Mallory Luscher: Professional Hazardous Materials History: 

Security Specialist (Hazardous Materials) - United States Department of Transportation (Federal 

Aviation Administration - December 15,2002 to Present. 

Conducts inspections at airports, air carrier stations, cargo acceptance points, freight forwarders, 

and hazardous materials shippers in order to evaluate compliance with Hazardous Materials 

Regulations and Federal Aviation Administration training regulations. Performs hazardous 

materials outreach to the public at air shows, airports, trade shows, etc. Composes enforcement 

investigative reports when violations of the Hazardous Materials Regulations are found. 

Program Analyst - United States Department of Transportation (Federal Aviation 

Administration) September 24, 2000 to December 15, 2002 

Identified trends in transportation of hazardous materials in air tran.sportation by analyzing data 

from iutemal and externa] computer sy,stems. Created and presented reports requested by 

Complaint's Response lo Respondent's Iniiial Discovery Requests 

Federal Express - 2009NM700056 & CPl ONM0006 

Page 6 OfS 

KYLE E. LOMA20W, FAA ATTORNKY 

TELi 425.227.1847; FAX: 425.227.1007 
03/30/2011 12:14 FAX 2024935142 FAA DMS g|007/008 

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division management for outreach plan results, deployment plans, incident and assessment 

activity and other special projects. Conducted inspections at airports, air carrier stations, cargo 

acceptance points, fi"eighi forwarders, and hazardous materials shippers with Security Specialists 

(Hazardous Materials) to evaluate the hazardous materials program. Performed hazardous 

materials outreach to the public at air shows, airports, trade shows, etc. 

Request for Production No. 6; Produce any and all documents or things which you contend either 

supports or tends to refute the issuance of the subject citationAnswer: See previously produced documents firom the Agency's case file. 

Request for Production No. 7: Produce any and all documents or things which you contend either 

supports or tends to refute the assessment of the $30,000 penalty in the subject Final Notice of 

Proposed Civil Penalty. 

Answer: See Respon.se to Request for Production No. 6. See also the Administrator's Sanction 

Guidance. 

Request for Production No. 8: To the extent it has not already been produced, produce each 

document or item identified or described in your responses to the Interrogatories above. 

Answer: See earlier responses. 

Reque-st for Production No. 9: To the extent it has not already been produced, produce a 

copy of each document or item you rcJied upon in responding lo the Interrogatories 

above. 

Answer: See eeirlier responses. 

DATED tHs 16'*' day of March, 2011 

^^P^^f^ 

Complainl's Respon.seto Respondent's Initial Discovery Requests 

Federal Express - 2009NM70005<; & CPI0NMOOO6 

Page 7 of 8 

KYLE C. lOMAZOW, FA A ATTORNEY 

TEL: 425.227.1847; FAX; 425.227.1007 
03/30/2011 12:14 FAX 2024935142 FAA DMS ElOOe/OOE 

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CERTIFICATE OF SERVICE 

I hereby certify that the foregoing CompJainant's Initial Response to Response Initial Discovety 

Request has been served via facsimile and certified mail - Return Receipt Requested this date, to 

the following: 

The Honorable RicJiard C. Goodwin 

Office of hearings, M-20 

1200 New Jersey Avenue, S.E. 

East Building Ground Floor, Rm El2-320 

Washington, D.C. 20590 

TEL: 202.366.2139 

FAX: 202.366.7536 

Federal Aviation Administration 

800 Independence Avenue SW 

Washington, D.C. 20591 

Attn: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building - Suite 2 Wl 000 

FAX: 202.493.5020 

Cynthia Chandlei-Snell 

Federal Express Corporation 

3620 Hacks Cross Road 

Building B, 3'" Floor 

Memphis, TN 38125 

TEL: 901.434.8361 

FAX: 901.434.8283 

Dated this 16'^ day of March, 2011. 

^h j{]i/n\-. 

Dana Stephenson 

Office of Regional Counsel (ANM-7) 

Federal Aviation Administration 

1601 Lind Ave. SW 

Renton, WA 98057 

425.227.2164 

Complainr's Respon.se lo Rcspondcni'.<: Initial Discovery Requests 

Federal Express - 2009NM700056 & CP10NM0006 

Page 8 of« 

KYLEE. I.OMAZOW. FA A AnOHNEY 

IIEL: 425.227.1847; FAX: 425.227.1007