U.S. Department U.S. Department ofTransportation

Federal Aviation Administration 

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## 320161 FEDEX Hearing Docket Clerk FAA, AGC-430, Suite 2Wl000 Wilbur Wright Building 600 Independence Avenue, SW Washington, DC 20591 Southern Region Office ofthe Chief Counsel

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---- -- --- P.O. Box 20636 Enforcement Division Southern Team P.O. Box 20636 Atlanta, Georgia 30320 (404) 305-5200 (404) 305-5223 FAX

Re: In the Matter ofUnited Parcel Service Co. FAA Case No. 2013S0700189 Enclosed herewith please find a copy ofa request for hearing and the original and one copy of the Complaint in the above-referenced proceeding. The FAArequests that thehearing in this matterbeheld in the Atlanta, Georgia area, and expects that the hearing will last three days. Please address all communications for the FAAto theundersigned, at: Federal Aviation Administration Enforcement Division, Southern Team 1701 Columbia Ave. College Park, GA 30337 Telephone: (404) 305-5200, facsimile (404) 305-5223. Sincerely,**/~**

# ~~ ;amesH. Dunfee Attorney Enforcement Division, Southern Team

Enclosures

### February 29,2016

Federal Aviation Administration 600 Independence Avenue S.W. Wilbur Wright Bldg.- Suite 2W1000 Washington, DC 20591 Attention: Hearing Docket Clerk AGC-430 Re: FAA File No. 2013S0700189 Request for Hearing 

### Dear Clerk:

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# tlfown**1odd~** ATTORNEYS Winston E Miller Member 502.568.0296 (t) 502.581.1087 (f) wmiller@fbtlaw.com

VIA UPS Overnight and Regular U.S. Mail



### Pursuant to 14 C.P.R. 13.16(g)(2)(ii) United Parcel Service, Inc. (an Ohio Corporation, "UPS Ground") and United Parcel Service Co. (a Delaware Corporation, "UPS Airlines") and through its undersigned counsel hereby files a request for hearing regarding the Federal Aviation Administration's ("FAA's") Final Notice of Proposed Civil Penalty

- FAA File No. 2013S0700189 dated February 10, 2016 ("Final Notice") and received on February 16, 2016, in which the FAA proposed to assess a civil penalty in the amount of $3,250. This Request for Hearing is being made on behalf of UPS Ground and UPS Airlines because the Final Notice references and is based upon the Notice ofCivil Penalty for FAA File No. 2013S0700189 dated March 11, 2015 which was issued against both UPS Ground and UPS Airlines.

Winston E. Miller Counsel for United Parcel Service, Inc. andUnited Parcel Service Co.

400 West Market Street I 32nd Floor I Louisville, Kentucky 40202-3363 I 502.589.5400 Ifrostbrowntodd.com Offices in Indiana, Kentucky1 Ohio, Tennessee, Virginia and West VirginiaFederal Aviation Administration Page 2 February 29,.2016

cc: James H. Dunfee, Jr. Enforcement Division, Southern Team 1701 ColumbiaAvenue College Park, GA 30337

CERTIFICATE OF SERVICE I hereby certifythatthe foregoing Request for Hearing has been sent viaUPS overnight delivery, this 29th day ofFebruary 2016. Federal Aviation Administration 600 Independence Avenue, SW Wilbur Wright Bldg. -Suite 2W1000 Washington, DC 20591 Attention: HearingDocket Clerk (AGC-430) and a copy by certifiedmail- return receipt requested and regular U.S. mail to: James H. Dunfee, Jr. Enforcement Division, Southern Team 170l ColumbiaAvenue College Park, GA 30337

OOOOOXA.0624664 4842-3820-2926vl Counsel for UnitedParcel Service, Inc. and United Parcel Service Co.

400 West Market Street I 32nd Floor I Louisville, Kentucky 40202·3363 I 502.589.5400 Ifrostbrowntodd.com Offices in Indiana, Kentucky, Ohio, Tennessee, Virginia and West Virginia

### U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS FEDERAL AVIATION ADMINISTRATION



### FEDERAL AVIATION ADMINISTRATION, Complainant,

vs. UNITED PARCEL SERVICE CO. Respondent.

JUDGE NOT YET ASSIGNED FAADocket No. Judge

COMPLAINT 

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### The Federal Aviation Administration (FAA), bycounsel, hereby files its Complaint, pursuant to Rule 208 ofthe Rules ofPractice (14 C.F.R. 13.208), and states as follows: I. I. 

### On February 10,2016, Respondent, United Parcel Service, Inc. was advised through a Final Notice ofProposed Civil Penalty that the FAA proposed to assess a civil penalty inthe amount of$3,250. On February 29, 2016, the Agency Attorney received a writtenrequest for ahearing from the Respondent. II. 

### 2. On or about March 13, 2013, United Parcel Service, Inc. ("UPS") orits agent knowingly offered, for transportation by air, a non-specification fiberboard box containing hazardous materials ("shipment") that was not properlyprepared for air transportation. 3. The above-mentioned shipment was assigned UPS 3-Day Select tracking number/air waybill number lZ 617-489-12-6033-7371. 4. The shipment was originally offered by VetteSupply.com, 6678 E. Weld Park, Stillman Valley, IL 61084 for air transportation to the consignee, 7717 Eagle Ridge Dr., San Diego, CA 61084. 5. The shipment originated at 100 W. Ellwalk Dr., Cortland, IL 60112.

### 6. On or about September 10, 2012, employees at the UPS sort facility in Louisville, Kentucky discovered the shipment leaking. 7. The above-mentioned shipment contained four !-gallon metal containers of GM Vehicle Care Black Reconditioning Paint (with metal lids), marked "DANGER! FLAMMABLE LIQUID AND VAPOR". 8. Further investigation showed one ofthe metal containers leaked approximately !- 

### gallon ofthe above-described material into and through above-mentioned fiberboard box. 9. The fiberboard box described above was marked "Consumer Commodity, ORMD". 

### 10. At all times mentioned herein, the shipment was not accompanied by a Shipper's Certification or Declaration ofDangerous Goods. 11. a. GM Vehicle Care Black Reconditioning Paint is classified as a hazardous material under the Department ofTransportation Hazardous Materials Regulations (HMR) (49 C.P.R.§ 172.101). b. The proper shipping name of GM Vehicle Care Black Reconditioning Paint is "Paint". It 

### is in Hazard Class 3 (Flammable Liquid), Packing Group II, and has an assigned identification number ofUN1219. Theproper label is FLAMMABLE LIQUID.

c. Ifproperly packaged for air transportation pursuant to 49 C.P.R. § 

### 173.27 the above-described material could have been renamed Consumer Commodity and reclassed as ORM-D-Air. 12. UPS offered the above-described shipment of hazardous material for transportationby air without shipping papers that included: (a) the assigned identification number prescribed for eachhazardous material; (b) the proper shipping name prescribed for eachhazardous material; (c) the hazard class prescribed for each hazardous material; (d) the packing group prescribed for each hazardous material; (e) the total net mass perpackage ofeachhazardous material; and, (f) 

### the number and type ofpackages containing hazardous material. 13. UPS offered the above-described shipment ofhazardous material for transportation by air and failed to:(a) certify that the materials were in accordance withtheHMR (49 C.P.R.§§ 171, et seq.) byprinting onthe shippingpapers the certification set forth in§ 172.204(a)(l), 172.204(a)(2), or § 172.204(c) ofthe HMR; (b) prepare therequired certifications in duplicate; and, (c) add to the certificationrequired inthis sectionthe following statement: "I declare that all ofthe applicable air transport requirements have beenmet." 14. UPS offered the above-described shipment ofhazardous materials for transportation by air when: (a) the outer container was notmarked withtheproper shipping name ofeach hazardous material containedtherein; (b) the outer container was notmarked with the assigned identification number ofeachhazardous material contained therein; (c) a "ORM-D-AIR" marking was not on the outer container. (d) a "FLAMMABLE LIQUID" label was not affixed to the outer container. 15. UPS offered the above-described shipment ofhazardous material for transportationby air and failed to make emergencyresponseinformation available for use at all times the hazardous material was present. 16. UPS offered the above-described shipment ofhazardous material for transportationby air and failed to make an emergencyresponse telephone number immediately available to the appropriate official person designated to respond to anincidentinvolving a hazardous material, or who was conducting an investigation involving a hazardous material. 17. UPS offered the above-described shipment ofhazardous material for transportationby air when the packaging was not designed, constructed, maintained, filled, its contents so limited, and closed, so that under conditions normallyincidentto transportation, there wouldbe no identifiable release ofhazardous material to the environment. 18. UPS offered the above-described shipment for transportation by air when the above-describedpackagewas notproperlypackaged for air transportation.III. 19. Byreason ofthe above United Parcel Service, Inc. violated the following Department ofTransportation Hazardous Materials Regulations (Title 49 ofthe Code ofFederal Regulations):

a. Section 171.2(b) inthat UPS offered a hazardous material for transportation in commerce and failed to complywith all applicable requirements ofthis subchapter, or an exemption or special permit, approval, orregistration issued under this subchapter orunder subchapter A ofthis chapter. There maybemorethan one offeror ofa shipment of hazardous materials. Each offeror is responsible for complying withthe requirements of this subchapter, or an exemption or special permit, approval, orregistration issued under this subchapter or subchapter A ofthis chapter, withrespect to anypre-transportation function that itperforms oris required to perform; however, each offeror is responsible only for the specific pre-transportation functions that itperforms or is required to perform, and each offeror mayrely oninformation providedby another offeror, unless that offeror knows or, a reasonable person, acting inthe circumstances and exercising reasonable care, would have knowledge that the informationprovided bythe other offeror is incorrect. b. Section 171.2(e) in that UPS offered or accepted a hazardous material for transportation in commerce whenthe hazardous material was notproperly classed, described, packaged, marked, labeled, and in condition for shipment as required or authorized by applicable requirements ofthis subchapter, or an exemption, approval, or registration issued under this subchapter or under subchapter A ofthis chapter.

c. Section 171.2(f) in that UPS transported a hazardous material in commerce and failed to transport itin accordance with applicable requirements ofthis subchapter, or an exemption or special permit, approval, or registration issued under this subchapter or subchapter A ofthis chapter. Each carrier who transports a hazardous material in commerce mayrely on information provided bythe offeror ofthe hazardous material or a prior carrier, unless the carrier knows or, a reasonable person, acting in the circumstances and exercising reasonable care, would have knowledge that the information provided by the offeror orprior carrier is incorrect. 20. Pursuant to 49 U.S.C. Section 5123(a), United Parcel Service, Inc. is subject to a civil penalty not lowerthan $250 ($450 for training-related violations), nor greater than $75,000 ($175,000 ifdeath, serious illness, severe injury, or substantial property damage results), for each violation ofthe Department ofTransportation Hazardous Materials Regulations. 21. Under the facts and circumstances ofthis case, a civil penalty 

### of$3,250 is appropriate.WHEREFORE, the Agency, by counsel respectfullyrequests that the Administrative Law Judge enter an order that Respondent be assessed a civil penaltyinthe amount of$3,250. Respectfully submitted this -"'---dayofMarch, 2016.

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# /-+~L~:___:'__---,;~::::_____,&L-:__**~,...** ' Enforceme Division, Southern Team 1701 Columbia Ave. College Park, GA 30337 Email: Hank.Dunfee@faa.gov Telephone: (404) 305-5200 (main) (404) 305-5206 (direct) (404) 305-5223 (fax)

PLEASE NOTE: Pursuantto Title 14 CFR Section 13.209(a), you are required to file a written answer to this Complaint, or a written Motion to Dismiss ifappropriate, not later than 30 days after the date shown on the Certificate ofService which follows.CERTIFICATE OF SERVICE Ihereby certify that a copy ofthe foregoing Complainthas beenmailed this date byFederal Express, to the following: Hearing Docket Clerk FAA, AGC-430, Suite 2Wl000 Wilbur Wright Building 600 Independence Avenue, SW Washington, DC 20591 President United Parcel Service, Inc. 55 Glenlake Parkway NE Atlanta, GA 30328 United Parcel Service, Inc. c/o Adam Briggs, Attorney 55 Glenlake ParkwayNE Atlanta, GA 30328 Frost BrwonTodd, LLC c/o Winston E. Miller, Esq. 400 West Market Street, 32nd Floor Louisville, KY 40202

Dated (original 

### + 1 copy)