### U.S. DEPARTMENT OF TRANSPORTATION FEDERAL AVIATIONADMINISTRATION OFFICE OF HEARINGS WASHINGTON, DC
IntheMatter of: Federal Express Corporation Respondent
JudgeUnassigned ) ) ) ) ) ) ) ) FAADOCKET No. FAA 2014-0864 (Civil PenaltyAction)

FDMS No. FAA 2014-0864



### SECOND AMENDED COMPLAINT The Federal AviationAdministration (hereinafter "FAA") files its SecondAmended Complaint under Rule 208 of the Rules of Practice in FAA Civil PenaltyActions, 14 C.F.R. § 13.208 and states the following: I. By Notice of Proposed Civil Penalty dated July 14, 2014 and Final Notice of Proposed Civil Penalty dated October 29, 2014 Federal Express Corporationwas advised that the Federal AviationAdministration proposed to assess a civil penalty in the amount of $65,000.00. The FAA filed its Complaint on November 10, 2014. It filed anAmended Complaint onAugust 11, 2015. II. 1. On or about January 10, 2014, Federal Express Corporation ("FedEx") failed to inspect and improperly accepted a hazardous material shipment for air transportation fromAustin, Texas to Fort Smith, Arkansas. 2. The shipment consisted of two (1) one gallon cans of Tuffy Fast Dry F.F. Blue Paint. 3. The paint was contained inside of a non-specification fiberboard box. One side of the box displayed two large orientation arrows. "PAINT" was printed on a second side of the box.4. In transit, one of the cans leaked. 5. Tuffy Fast Dry F.F. Blue Paint is regulatedbythe Department of Transportation Hazardous Material Regulations, 49 C.F.R. 171 et. seq. (DOTHMR). 6. The proper shipping name for Tuffy Fast Dry F.F. Blue Paint is Paint, hazard class 3, Packing Group II, UN1263. 7. The shipment was assigned FedEx Express Airwaybill tracking number 797609866023. 8. The shipper was Hanna Anderson, TCI Coatings, Inc., 220 Industrial Blvd., Austin, Texas 78745. 9. The consignee was Receiving, Air Compressor Equipment, 3401 Kelly HWY, Fort Smith, Arkansas, 72904. 10. FedEx acceptedhazardous material for transportationby air in commerce when the material was not properly classed, described, packaged, marked, labeled, and in condition for shipment as required or authorizedby applicable requirements of subchapter C, of the hazardous material regulations. 11. FedEx transportedhazardous material for transportationby air in commerce when the hazardous material was not transported in accordance with the applicable requirements of subchapter C, of the hazardous material regulations. 12. FedEx acceptedhazardous material for transportation aboard an aircraft when the hazardous material was not described and certified on a shippingpaper prepared in duplicate in accordance with part 172 or as authorizedby subpart Cofpart 171 of subchapter C, of the hazardous material regulations. 13. FedEx accepted hazardous material for transportation aboard an aircraft when the hazardous material was not marked and labeled in accordance with subparts Dand E of part 172 or as authorizedby subpart Cofpart 171 of subchapter C, of the hazardous material regulations.



### 2III. By reason of the above FedEx violated the following Department of TransportationHazardous Materials Regulations Title 49 of the Code of Federal Regulations):
a. Section 17l.2(e), [49 C.F.R. § 17l.2(e)] in that it acceptedhazardous material for transportation by air in commerce when the material was not properly classed, described, packaged, marked, labeled, and in condition for shipment as required or authorizedby applicable requirements of subchapter C, of the hazardous material regulations. b. Section 171.2(f), [49 C.F.R. § 171.2(f)] in that it transportedhazardous material for transportation by air in commerce when the hazardous material was not transported in accordance with the applicable requirements of subchapter C, of the hazardous material regulations.
c. Section 175.3, [49 C.F.R. § 175.3] in that it accepted hazardous material for transportationby air that was not prepared in accordance with this subchapter. d. Section 175.30(a)(2), [49 C.F.R. § 175.30(a)(2)] in that it accepted hazardous material for transportation aboard an aircraft when the hazardous material was not described and certified on a shippingpaperprepared in duplicate in accordance withpart 172 or as authorizedby subpart Cofpart 171 of subchapter C, of the hazardous material regulations.
e. Section 175.30(a)(3), [49 C.F.R. § 175.30(a)(3)] in that it accepted hazardous material for transportation aboard an aircraft when the hazardous material was not marked and labeled in accordance with subparts Dand E of part 172 or as authorized by subpart Cofpart 171 of subchapter C, of the hazardous material regulations. IV. Pursuant to Section 107.329 of the Hazardous Materials Transportation Law, as amended, [49 CFR § 107.329 and 49 U.S.C. § 5123(a)(1)] FedEx is liable for a civil penaltynot to exceed $75,000 for each of the violations alleged. Under the facts and circumstances of this case, a civil penalty of $65,000.00 is appropriate.

3WHEREFORE, the Federal AviationAdministration, respectfully requests that the Administrative Law Judge enter an Order that Federal Express Corporationbe assessed a civil penalty in the amount of $65,000.00 for the violations alleged in this complaint.

Respectfully submitted this 24th day ofNovember 2015.

Peter J. Lynch Assistant Chief Counsel for Enforcement

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# ·"".:'-"'.-?_.'-.~'-··--**Ja~es** Archier, SeniorAttorney .Enforcement Division, Southwest Team FederalAviation Administration 10101 Hillwood Parkway Fort Worth, Texas 76177 E-mail: james.archier@faa.gov Telephone: (817) 222-5099 (Main) (817) 222-5074 (Direct) (817) 222-5945 (Fax)
PleaseNote Pursuant to Title 14 CFR § 13.209(a), you are required to file a written answer to this SecondAmended Complaint, or a written motion to dismiss if appropriate, not later than thirty (30) days after the date shown on the Certificate of Service which is attached to this document.

4CERTIFICATE OF SERVICE Re: Federal Express Corporation, FAA Case No. 2014SW700042 I hereby certifythat on this day, I have sent via Federal Express an executed original andone copy of the SecondAmended Complaint, addressed as follows: Hearing Docket Attention Hearing Docket Clerk Federal AviationAdministration 600 Independence Avenue, SW Washington DC 20591 WilburWright Building-Suite 2Wl000 Washington, DC 20591 I further certify that on this date, I have sent via Federal Express a true copy of the SecondAmended Complaint, addressed as follows to:

TEL: FAX: (202) 393-9285 ( 202) 628-0654 Mr. Greg G. Stofko SeniorAttorney RegulatoryAffairs Federal Express Corporation 1700 PennsylvaniaAvenue, N.W. Suite 950 Washington, DC 20006

EMAIL: greg.stofko@fedex.com

TEL: (202) 496-7356 Allan H. Horowitz McKenna Long &Alridge LLP 1900 KStreet, NW Washington DC 20006

EMAIL: ahorowitz@mckennalong.com



### 5U.S. Administrative Law Judge Office of Hearings, M-20 U.S. Department of Transportation 1200 New JerseyAvenue, S.E. (E11-310) Washington, DC 20590 Attn: Patricia Matthews

TEL: (202) 366-5121 StaffAssistant FAX: (202) 366-7536

Peter J. Lynch Assistant Chief Counsel for Enforcement

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# __ James Archier, SeniorAttorney Enforcement Division, Southwest FederalAviationAdministration 10101 Hillwood Parkway Fort Worth, Texas 76177 E-mail: james.archier@faa.gov Telephone: (817) 222-5099 (Main) (817) 222-5074 (Direct) (817) 222-5945 (Fax)

6 Dated: November 24, 2015