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^ 

U.S. Department 

of Transportation 

Federal Aviation 

Administration 

Southwest Region 

Arkansas. Louisiana, 

New Mexico. Oklahoma 

Texas 

Office of Regional Counsel, ASW-7 

2601 IMeacham Blvd. 

FortWonh.TX 76137 

(817)222-5099 

(817) 222-5945/5092 F/\X 

March 9, 2010 

Via Federal Express 

Hearing Docket 

Federal Aviation Administration. 

600 Independence Avenue, Sw 

Wilbur Wright Duildlng Suite 2W1.000 

Washington, DC 2059:1 

Attention: Hearing Docket Clork - AGC 430 

(LplO^\A}oco^/(^o/^^o/9f 

Re: Newly Weds Foods, Inc., FAA Case No. 2009SW700272 

Dear Hearing Docket. Clerk: 

Enclosed herewith please find a copy ol a request for hearing 

dated February 23, 2010 and the original and one copy of the 

complaint in the above-referenced proceeding. 

I reque,sL LhaL Lhis hearing be held in Fort Worth, Texas. I 

expect the hearing to last 3 di^ys. Please address all 

communicaLions lor the Regional c:oun5el , Southwest Region to the 

undersigned at: 

James Archier, 

Attorney 

Southwest Region 

2601 Meacham Blvd., Suite 6E 

Fort Worth, Texas 76137 

;,iiO 
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Sincerely, 

LYNETTE WORD 

Regional Counsci 

SouthwHSL Region 

-^^' ^ U E ^ 

es Archier, Agency Attorney 

^817) 222-.b074 

Enclosure.s: Request, for Hear.Ing, Complaint, Certificate of 

Service 

cci Mr. John J, Seely, Esq. 
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'FOODS 

CUSTOMIZED TA5TE TECHNOLOGY 

FAA * DMS 21003/014 

:oipoi>-'ilt'' H<'r-ifkjUrirrpf^ V 

Febi-uary23.20lO 

VIA FEDERAL EXPRESS 

1 leziring Docket 

I'cdcral Aviation Administration 

600 Independence Avenue, SW 

Wilbur Wright Building - Suite 2W1000 

Washington, 0 0 20591 

Attention: Hearing Docket Clerk - AGC 430 

Re: Federal Aviatioa Administivtion ("FAA") Request for Hearing 

Case No. 2009 SW 700272 

Dear Sir or Madam: 

This letter serves as Newly Weds Foods, Inc.'s (''NWF") request for a hearing in response to 

the FAA's Final Notice of Proposed Civil Penalty in the abovc-captioned matter (the "Request"). The 

Request is sent pursuant lo 14 CFR 13.16(t). Please do not hesitate to contact me if I can provide you 

or another FAA representative with any additional information. 

Very truly yours, 

NEWLY WEDS FOODS, INC. 

,lohn J. Secly 

Senior Vice President 

J.IS/tw 

cc: JaiTies Archier, Esq. 

George Winchester 

•^Of' 

M ;0'V FijII'-ihJii-^vr • 'll';c-ii-jO ,llli loii 6(ifj ;V • 7 / •^ 18'; /r'Oil - fjx //' ; •+.-l7..'7'>'; - .vwvv Mr.vlyvVr'(i<,niC)f|-, rem 
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U.S . DEPARTMEltTT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

M 

In the Matter of: 

Newly Weds Foods, Inc., 

Respondent 

FAA Docket Not Assigned 

FAA Case No. 2009SW700272 

Judge Not Assigned 

COMPLAINT 

The Federa". Aviation Administration ("FAA") liics il;s 

complaint, under Rule 208 ol Lhe Rules of Practice in FAA Civil 

Penalty Actions, 14 C.L-'.R. § 13.208 and stales the following: 

By Notice of Proposed Civil Penalty dated, November 18, 

2009 and by Final NoLice ol Proposed Civil Penalty dated 

February 10, 2010 Newly Weds Foods, Inc., was advised that the 

FAA proposed Lo as.sess a civil penalty in the amount of 

$47,250.00. 

1. On or about July 14, 20U9, Newly Weds Foods, Inc., 

(hereinafter "Newly Weds") offered Federal Express Corporation 

(hereinalLCr "FedEx") hazardous material for shipment by air 

from Mount Pleasant, Texas LO New Bethlehem, Pennsylvania. 

2, The .yhipmenL was ollered via FedEx air hill number 7967-

7221-2161. 

3, The shipment consisted o± three, 2 liter plastic bottles of 

bourbon flavor extract. Tn transit one of the bottles leaked. 

4. The bottles were packed in a non-specification fiberboard 

boV w i t h S I: yro foam. 

.5. Orientation arrows appeared on Lwo .side.'? o£ Lhe box. 

6, At all times mentioned herein, the above described 
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bo.x was not marked with the proper shipping name, or UN 

identification number of the hazardous material, was not labeled 

with the proper hazardous materials labels, was not accompanied 

by a shipper's declaration of dangerous goods, shipper's 

certification or other proper shipping documents containing the 

in.Co.cmation, including emergency response information, required 

by the hazardous maLerial regulaLions, and was not otherwise in 

a condition for transportation by air as required by the 

hazardous material regulations. 

7. Bourbon flavor extract is classified as hazardous material 

under the Department ol Transportation Hazardous Material 

Regulations (49 C.F.R. § 172.101). 

C. The proper shipping name for bourbon flavor extract is 

Extracts, Flavoring, Liquid, 3, UN1197, packing group III. 

9. The shipper was Ronnie Bryan, Newly Weds Foods, 4125 FM 

3417, Mount Pleasant, Texas 75455. 

10. The con.signee was NWF Bethlehem, NWF-Bethlehem, 23 S. 

Commerce Way, Bethlehem., Pennsylyania 18017. 

11. Newly Weds offered hazardous material for transportation by 

air when the material was not properly classed, described, 

packaged, marked, labeled, and in a condition for shipment as 

required or authorized by applicable requirements of the 

hazardous material regulations. 

12. Newly Weds offered hazardous material for transportation by 

air when the .shipping papora did not include: 

(a) the identification number prescribed for the 

material as shown in Column (4) of the i5 172.101 

table; 

(b) the proper shipping name prescribed for the 

material in Column (2) of the § 172.101 table; 

(c) the hazard class or division number prescribed 

for the material, as shown in Column (3) of the 

«^ 172.101 table; 

(d) the packing group in Roman numerals, a.s 

designated Tor the hazaxdoo s rriat.e.rial in Col un-in (5) of 

the § 172.101 table; 
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(e) the total quantity of each iiazardous material 

covered by the description must be indicated; 

(f) the total net mass per package, must be shown 

unless D. gross mass is indicated in Coluniris (9A) 

or (9R) of the § 172.101 table in which case the total 

gross mass per package must be shown; 

(g) the number and type of packages must be 

i ndi.cated. 

13. Newly Weds offered hazardous material for transportation by 

air and failed to enter a statement on the shipping papers 

providi:ig that Lhe shipment v;as within the limitations 

prescribed lor either passenger and cargo aircraft or cargo 

aircraft only. 

14. Newly Weds offered hazardous maLerial for transportation by 

air and failed to certify by printed certification, in the 

manner allowed by 49 C.F.R. *j?^ 172.204(a)(1) or 172.204(c)(1), 

that the material was offered for transportation in accordance 

with the hazardous material regulations. 

:1.5. Newly Weds offered hazardous niaterial for transportation by 

air when it failed to provide two copies of the certification 

showing that the materials were in accordance with the 

certification set forth in § 172.204(a)(1) or § 172.204(c)(1) of 

the hazardous materials regulations, 

16. Newly Weds offered hazardous material for transportation in 

air commerce in non-bulk packaging and failed to mark the 

package with the proper shipping name and identification number 

for its contents. 

17. Newly Weds offered hazardous material, for transportation by 

air and failed to label the package or containment device with 

the label specified in .Section 172.101 (49 CF.R , *? 1/2,101). 

18. Newly Weds offered hazardous .material for: transportati.on by 

air and failed to make emergency response information 

immediately available for use at all times the hazardous 

material was present. 

19. Newly Weds offered hazardous material for transportation by 

air and failed to mal^e er;iergenoy respon.^je information, including 

an emergency response telephone iiuiiiber, required by this subpart 

immediately available to any person who, as a representative ot 
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a Federal, .State, or local government agency, responds to an 

incident involving a .hazardous niaterial, or is conducting an 

investigation, which involves a hazardous material. 

20. Newly Weds offered hazardous material for transportation by 

air and failed to provide and maintain emergency response 

information that includes the minimum information set forth in 

thi:=; section, 1 72 . 602 (a ) (1-7 ) ) . 

21. Newly Weds offered hazardous material for transportation by 

air aT\<i. failed to provide an emergency response telephone number 

immediately available to any person who, as a representative of 

a Federal, State or local government agency, responds to an 

incident involving a hazardous material, or is conducting an 

investigation, which involves a hazardous matetrial. 

22. Newly Weds offered hazardous material for shipment by air 

when emergency response information was not presented on a 

shipping paper. 

23. Newly Weds offered hazardous material for shipment by air 

and failed to provide an emergency response telephone number 

(including area code) for use in the event of an emergency 

Involving hai:ardous material that is monitored at all times that 

the material is in transportation, including storage incidental 

to transportation24. Newly Weds offered hazardous material for shipment by air 

and failed to provide an emergency response telephone number of 

a person knowledgeable of the hazardous material being shipped 

and who has comprehensive emergency response and incident 

mitigation information lor that material, or has inimediate 

access to a person posse.ssing such knowledge and info.rmation. 

2.5. Newly Weds offered hazardous material for transportation by 

air and failed to provide an emergency response telephone 

number, tor use in the event of an emergency involving the 

hazardous material, and entered on a shipping paper ImrnediaLeiy 

following the description of the hazardous material required by 

subpart C of this part, or entered once on the shipping paper in 

a clearly visible location. 

26. Newly Weds offered hazardous material for transportation by 

air and failed to ensure that its HAZMAT employees were trained. 

27. Newly Weds offered hazardous material for shipment by air 

and failed to class and describe the hazardous material in 
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accordance with parts 172 and 173 of Subpart R, Preparation of 

Hazardous Materials tor Transportation. 

28. Newly Weds offered hazardous material for shipment by air 

and railed to dcLormine that the packaging or container was an 

authorized packaging, met Part 173 requirements, and was 

manufactured, assembled and marked in accordance with § 173.7(a) 

and Part.s 173, 178, or 179. 

29- Newly Weds offered hazardous material for shipment by air in 

packaging LhaL was noL designed, constructed, maintained, 

filled, its contents so limited, and closed, so that under 

conditions normally incident to transportation there was no 

release of hazardous materials to the environment. 

30. Newly Weda offered hazardous maLerial for shipment by air in 

packaging with closures that failed to prevent an identifiable 

release of hazardous material to the environment. 

31. Newly Weds offered hazardous material for shipment by air in 

containers with screw-type closures that were not secured to 

prevent closure from loosening due to vibration or si:bstantial 

change in temperature. 

II. 

By reason of the above. Newly Weds violated the following 

Department of Transportation Hazardous Materials Regulations 

(Title 49 of the Code of Federal Regulations): 

a. .Section 171.2(e) (49 C.F.R. § 171.2(e)), in that Newly Weds 

offered hazardous material for transportation by air in commerce 

when the material was not properly classed, described, packaged, 

marked, labeled, and in a condition for shipment as required or 

authorized by applicable requirements of the hazardous material. 

regulations. 

b. Section 172.200(a) (49 C.F.R. § 172.200(a)), which requires 

that each person oriering a hazardous material lor 

transportation to properly describe the hazardous material on 

the shipping papers. 

c. Section 172.202(a) (1) (49 C.F.R. § 1/2.202 (a) (1)) in that it 

olfered hazardous material for transportation in air commerce 

when the required hazardous material description on the shi piping 

papers did not include the identiricaLlon number prescribed lor 

the material, as shown in Column 4 of Lhe § 172.101 Table. 
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d. Section 172.202 (a) (2) (49 C.f.R. § 172.202(a)(2)) in that it 

offered hazardous material for transportation in air commerce 

when the required hazardous material description on the shjpping 

papers did not include the proper shipping name prescribed for 

the material in Column 2 of the § 172,101 Table. 

e. Section 172.202(a)(3) (49 C.F.R. § 172.202(a)(3)) in that 

it offered hazardous material for transporLation in air commerce 

when the required shipping papers did not include the hazard 

class or division number prescribed for the material, as shown 

in Column (3) in the Hazardous Materials Table, referenced in 

section 172.101. 

£. Section 172.202 (a) (4) (49 C.F.R. § 172.202(a)(4)) in that 

it offered hazardous material lor transportation In air commerce 

when the required shipping papers did not include Lhe Packing 

Group, in Roman numerals, prescribed for the material in Column 

5 of the § 172.101 Table. 

g. Section 172.202 (a) (b) (49 C.F.R. <> 172.202(a)(5)) in that 

it offered hazardous material for transportation in air commerce 

and failed to describe the hazardous material on the shipping 

papers, including the total quantity (by net or gross mass, 

capacity, or as otherwise appropriate), including the unit o£ 

measurement, or the hazardous material covered by the 

description, in the manner required by thi,s subpart. 

h. Section 172,202(a)(6) (49 C.F.R. § 172.202(a)(G)) in that 

it offered hazardous material for transportation in air commerce 

and failed Lo describe on the shipping papers the total net mass 

per package, unless a gross mass is indicated in Columns (9A) or 

(9B) of the § 172.101 Table. 

i. Section 172.202 (a) (7) (49 C.f.R. § 172.202(a)(7)) in that 

it otfcred hazardous material for transportation in air commerce 

and failed to describe on the shipping papers the number and 

type of packages. 

j. Section 172 . 203 (f) (49 C.1:\R. § 172.203(f)) in that it 

offered hazardous material for transportation by air and failed 

to enter a statement on the shipping papers providing that the 

shipment is within the limitations prescribed for either 

passenger and cargo aircraft or cargo aircraft only. 

k. Section 172.204 (a) ( 49 C.F.R, S 172.204(a)) in that it 

offered hazardous material for transportation by air and failed 
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to certify by printed certification, in the manner allowed by 49 

C.F.R. §§ 172.204(a)(1) or 172.204(a)(2), that the material was 

offered for transportation in accordance with the hazardous 

material regulations. 

1. Section 172.204(c)(2) (49 C.F.R. § 172.204(c)(2) in that it 

offered hazardous material for transportation by air when it 

failed to provide two copies of the certification showing that 

the materials were in accordance with the certification set 

forth in § 172.204(a)(1) or § 172.204(c)(1) of the hazardous 

materials regulations. 

m. Section 172.300 (49 C.F.R. *> 172.300), which requires that 

each person offering a hazardous material for transportation to 

properly mark each package, freight container, and transport 

vehicle containing the hazardous material. 

n. Section 172.301(a) (49 C.F.R. § 172.301(a)) in that it 

offered a hazardous material for transportation in air commerce 

in non-bulk packaging and failed to mark the package with the 

proper shipping name and identification number for it.=; content.^. 

o. Section 172.400(a) (49 CF.R. S 172.400(a)) in that it 

offered hazardous material requiring labeling under the 

hazardous material regulations for transportation in air 

commerce and failed to label the package or containment device 

with the label specified in Section 172.101 (49 C.F.R. § 

172.101). 

p. Section 172.600 (49 C.F.R. § 172.600)), which requires that 

each person ofrering a hazardous material for transportation to 

provide and maintain emergency response information during 

transportation and at the facility where hazardous materials are 

loaded for transportation, stored incidental to transportation 

or otherwise handled during any phase of transportation. 

q. Section 1 72 . 600 (c) (1) ) (4 9 C.F.R. •§ 172.600(c)(1)) in that 

it offered hazardous material for transportation by air and 

failed to make emergency response information immediately 

available for use at ail times the hazardous material was 

present. 

r. Section 172.600 (c) (2)) (49 C.F.R. § 172.600(c)(2)) in that 

it offered hazardous material for transportation by air ati6 

failed to make emergency response information, including 

emergency response telephone number, required by this subpart 

imn\ediately available to any person who, as a representative of 
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a Federal, State, or local government agency, responds to an 

incident involving a hazardous material, or is conducting an 

investigation which involves a hazardous material. 

s. Section 172.602 (a) (1-7)) (49 C.F.R. § 172.602(a)) in that 

it offered a hazardous material for transportation by air and 

failed to provide and maintain emergency response iniormation 

that includes the minimum i nf oririation set forth in this section, 

172.602(a) (1-7)) . 

t. Section 172.602(b) (2)) (49 C.F.R. § 172.602(b)(2)) in that 

it offered hazardous material for transportation by air and 

failed to provide an emergency response telephone number 

immediately available to any person who, as a representative ot 

a Federal, state or local government agency, re,spoiids Lo an 

incidenL involvjng a hazardous material, or is conducting an 

investigation which involves a hazardous material. 

u. Section 172 . 602 (b) (3 ) (i ! ) (49 C.fc'.R. § 172 . 602 (b) (3) ( i ) in 

that it offered hazardous material for shipment by air when 

emergency response information was not presented on a shipping 

paper. 

v. Section 179.604 (a) (1)) (49 C.F.R. § 172.604(a) (1)) in that 

it offered hazardous material for shipment by air and failed to 

provide an emergency response telephone number (including area 

code) for use in the event of an emergency involving hazardous 

material that is monitored at all timea that the material is in 

transportation, including storage incidental to transpoi't.at.i on. 

w. Section 172.604(a)(2)) (49 C.F.R. § 172.604(a)(2)) in that 

it offered hazardous material for transportation by air and 

failed to provide an emergency response telephone number of a 

person knowledgeable of the hazardous material being shipped and 

who has comprehensive emergency response and incident mitigation 

information for that miaterial, or has in'imediate access to a 

person possessing such knowledge and information. 

X. Section 172.604 (a) (3)) (49 C.F.R. § 172.604(a) (3)) in that 

it offered haz.ardous material for, transportation by air and 

failed to provide an emergency response telephone number, for 

use in the event of an emergency involving the hazardous 

material, and entered on a shipping paper immediately following 

the description of the hazardous material required by subpart C 

of this part, or entered once on the shipping paper in a clearly 

visible location. 
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y. Section 172.702 (a)) (49 C.F.R, g 172.702(a)) in that it 

offered hazardous material for transportation by air and failed 

to ensure that its HAZMAT employees were trained. 

z. Section 173.1(b) (4 9 C.F.R. *j 173.1(b), which prohibits the 

shipment of hazardous material by air that was not packed in 

packaging specified in Part 173. 

aa. Section 173.22(a)(1)) (49 C.F.R. § 173.22(a)(1)) In that it 

offered hazardous material for shipment by air and failed tc 

class and describe the hazardous material in accordance with 

parts 172 and •.173 of Subpart B, Preparation of Hazardous 

Materials tor Transportation. 

bb. Section 17 3.22(a)(2)) (49 C.F.R. § 173.22 (a) (2)) in that it 

offered hazardous material for shipment by air and failed to 

determine that the packaging or container was an authorized 

packaging, met Part 173 requirements, and was manufactured, 

assembled and marked in accordance with § 173.7(a) and Parts 

173, 170, or 179. 

cc. Section 173.24(b)(1)) (49 C.F.R. § 173.24(b)(1)) in that it 

offered hazardous material lor shipment by air in packaging that 

was not designed, constructed, maintained, filled, its contents 

so limited, and closed, so that under conditions normally 

incidenL to transportation there was no release of hazardous 

materials to the environment. 

dd. Section 173.24 (I) (l) (i) ) (49 C.F.R. Js 173 . 24 (t) (1) (i) ) in 

that it offered hazardous material for shipment by air in 

packaging with closures that failed Lo prevent an identifiable 

release of hazardous material to the environment. 

ee. Section 173.27(d)) (49 C.f.R. § 173.27(d))) in that it 

offered hazardous material for shipment by air in containers 

with screw-type closures that were not secured to prevent 

closure from loosening due to vibration or substantial change in 

temperature. 
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III . 

Pursuan t t o Sectio n 107.32 9 of th e Hazardous Materials 

Transportatio n Act, as amended, [49 D.S.C § 107.329 , and 49 

U..S.C. § .5123(a)(1)], Newly Weds Food, Inc. , is liabl e .Cor a 

civi l penalt y not to exceed 532,500.00 for each violatio n 

alleged . 

Under th e facts and circumstance ; 

of 547,250.00 is appropriate . 

of thi s case , a civi l penalt y 

WHEREFORE, th e Regiona l Counsel for th e Federa l Aviatio n 

Admi n i St r:a Lion, Southwest Region, respectfull y reque.sLs tha t the 

Administrativ e haw Judge ente r an Order tha t Newly Weds t'ocd, 

inc. , be assesse d a civi l penalt y in th e amount of 547,250.00 

for each of Lhe allege d violations. 

Respectfull y submitte d thi s 9' day of March 2010 

Lynett e Word 

Regiona l Counsci 

'SouTTTvTtrsi; Region 

-x^i '€^ ^ 

is Archier 

gency Attorney 

817) 222-5074 

10 
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Please Note 

Pursuant to Title 14 CFR § 13.209(a), you are required to file a 

written answer to this complaint, or a written motion to dismi.s.s 

if appropriate, not later that thirty (30) days after the date 

shown on Lhe certificate of service which is attached to this 

document. 

CERTIFICATE OF SERVICE 

Re: Newly Weds Foods, Inc., FAA Case No. 2009SW700272 

I hereby certify that on the 9'"' day of March 2010, T have sent 

vial Federal L'xpress an executed original and one copy of the 

complaint, addressed as follows: 

Hearing Docket 

Federal Aviation Adm.inistration 

600 Independence Avenue, SW., 

Washington DC 2 0591 

Attention: Hearing Docket Clerk, AGC 430 

Wilbur Wright Building-Suite 2W1000 

I further certify that on this date, I have sent via federal 

Express a true copy of the complaint, addressed as follows: 

Mr. John J. Seely 

Senior Vice President 

Newly Weds Foods, Inc. 

4140 W. Fullerton Avenue 

Chicago, Illinois 60639 

Dated: March 9, 2010 

LyneLte Word 

Regional Counsel 

Southwest Region 

L/ames Archier 

gency Attorney 

(817) 222-5074 

11