U.S. DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

IN THE MATTER OF 

APOLLO A & HS 

JAN 2 9 2 m 

Company ^^^'^W G DQCKE T 

FAA DOCKET NO. CP08AL0001 

(Civil Penalty Action) 

DMS No. FAA-2008-0783 

COMPLAINANT'S APPEAL BRIEF 

\'^:^ 

CD 

Complainant, the Federal Aviation Administration, hereby files this Appeal Brief in 

accordance with section 13.233(c) of the Rules of Practice in FAA Civil Penalty Actions, 

14 C.F.R.§ 13.233(c).' 

STATEMENT OF THE CASE AND FACTS 

On January 7,2008, Complainant issued a Notice of Proposed Civil Penalty (NPCP) in 

which it proposed to assess a $22,500 civil penalty for Respondent's alleged violations of the 

HMR. In the NPCP, Complainant alleged that 

1. On or about August 16, 2007, [Respondent] knowingly used an employee to offer 

to Federal Express a shipment containing hazardous material for transportation by 

air from Hong Kong, People's Republic of China, to New York, New York. 

2. The above shipment consisted of one fiberboard box, and [Respondent] presented 

it to Federal Express on International Air Waybill No. 8607 7290 7770 0402. 

3. The above box contained some 19,200 safety matches packaged in paperboard 

boxes. 

4. Safety matches are classified as a hazardous material under § 172.101 of the .. . 

HMR, 49 C.F.R. Chapter I, Subchapter C (Parts 171-80). Their proper shipping 

Complainant's appeal brief was originally due on December 24, 2009. In an order served on December 

17, 2009, Complainant was granted an extension of time until February 1, 2010 to file its appeal brief 
name is "Matches, safety." They are in hazard class 4.1 and packing group III, 

and have an assigned identification number of UN 1944. 

5. The offering of a shipment containing hazardous materials as described above is a 

fimction that directly affects hazardous materials transportation safety. At the 

time of the events described above, therefore, the employee of [Respondent] that 

offered the shipment was a hazmat employee under the HMR. 

6. At the time of the events described above, [Respondent] had failed to ensure that 

the above employee had received the training specified in Subpart H of part 172 

of the HMR within the preceding three years. 

7. At all times mentioned herein, the box was not accompanied by a Shipper's 

Declaration for Dangerous Goods. 

8. [Respondent] offered the above-described shipment of hazardous material for 

transportation by air when the shipping papers did not contain the proper shipping 

name of each hazardous material, the hazard class of each hazardous material, the 

assigned identification number of each hazardous material preceded by "UN" or 

"NA," as applicable, the packing group in Roman numerals, the total quantity by 

weight or volume of each hazardous material covered by the description, and the 

basic description of each hazardous material shown in sequence. 

9. [Respondent] offered the above-described hazardous material for transportation 

without including in the shipping papers an emergency response telephone 

nvunber as prescribed in Subpart G of Part 172 of the HMR. 

10. [Respondent] offered the above-described hazardous material for transportation 

by air without including in the shipping papers a statement indicating that the 

shipment is within the limitations prescribed for either passenger and cargo 

aircraft or cargo aircraft only. 

11. [Respondent] offered the above-described hazardous material for transportation 

by air when it did not certify that each hazardous material was in accordance with 

the HMR by printing the certification set forth in § 172.204(a) or § 172.204(c)(1) 

of the HMR on the shipping papers. 

12. [Respondent] offered the above-described hazardous material for transportation 

by air and did not provide two (2) copies of the required shipper's certification. 

13. [Respondent] offered the above-described shipment for transportation by air 

without including in the certification required by § 172.204 of the HMR the 

following statement: "I declare that all of the applicable air transportation 

requirements have been met." 
14. [Respondent] offered the above-described hazardous material when the box was 

not marked or labeled in any manner that would indicate the hazardous nature of 

its contents. 

15. [Respondent] offered the above-described shipment for transportation by air when 

the box was not marked with the proper shipping name and the assigned 

identification number of each hazardous material contained in it, and the required 

markings in English were not printed on or affixed to the surface of the box. 

16. [Respondent] offered the above-described shipment for transportation by air when 

no "Flammable solid" label was affixed to the box. 

Complainant further alleged that Respondent violated the following sections of the HMR: 

171.2(e), 172.200(a), 172.201(d), 172.202(a)(1), 172.202(a)(2), 172.202(a)(3), 172.202(a)(4), 

172.202(a)(5), 172.203(f), 172.204(a), 172.204(c)(2), 172.204(c)(3), 172.300(a), 172.301(a), 

172.400(a), 172.600(c), 172.702(a). ^ee Appendix. 

During the investigatory phase of the case, before the NPCP was issued. Respondent 

submitted a response to Complainant's letter of investigation, in which it admitted that it offered 

an undeclared shipment of safety matches to Federal Express for transportation by air. Exh. C-1, 

Letter dated October 3, 2007. Respondent stated that the shipment was supposed to contain 

display samples consisting of wooden sticks, but was filled with actual safety matches instead. 

Id. 

In response to the NPCP, Respondent stated that it did not knowingly ship hazardous 

materials by air and provided documentation in support. Exh. C-1, Response to NPCP at 3-4 and 

Attachments 1-7. Respondent indicated that one of its customers had requested an order of 

sample matchbooks to be filled with wooden sticks painted to look like matches. Id. at 3 and 

Attachments 1-4, 6. On August 14, 2008, one of Respondent's employees, Esther Wong, 

assumed that the order was incorrect and substituted actual matches for the wooden sticks. Id., 

Attachment 5. On August 15, 2008, employee Alice Lo offered the shipment to Federal Express 
not knowing that the wooden sticks had been replaced with actual matches. Id., Attachment 7. 

Respondent requested an informal conference, which was held on April 22, 2008. 

On June 30, 2008, Complainant issued a Final Notice of Proposed Civil Penalty (FNPCP) 

incorporating all of the allegations in the NPCP. Respondent requested a hearing on July 10, 

2008. Complainant filed its complaint on July 15, 2008. On August 10, 2008, Respondent sent a 

letter to Complainant requesting "a dismissal of the civil penalty," asserting that its investigation 

of the matter revealed that the materials that were shipped were unable to be ignited and had only 

the shape and color of actual matches. Exh. C-3. 

On July 23, 2009, Complainant filed a motion for decision. Exh. C-1. Construing 

Respondent's August 10,2008 letter as its answer to the complaint, Complainant noted that 

Respondent denied only one of the allegations in the complaint—^that the shipment offered to 

Federal Express^n or about^ugust 16, 2008 contained 19,200 safety matches. /«/. at 2. 

Complainant stated that the evidence in the investigative file, together with Respondent's 

admissions in its response to the letter of investigation and the NPCP, established that the 

materials that were offered for transportation by air on or about August 16, 2008 were actual 

safety matches and were not merely sticks painted to look like safety matches. Id. at 1-2. In 

support, Complainant submitted the declaration of Special Agent Gary Meaders, who inspected 

the shipment and found that it contained approximately 19,200 safety matches packed in a 

fiberboard box that was not marked or labeled in accordance with the HMR. Exh. C-1, 

Declaration of Gary D. Meaders at para. 2-3 and Attachment A, Photographs 1-9. Special Agent 

^ Respondent's August 10, 2009 letter to Complainant's counsel presumably was in response to the 

Complaint. Exh. C-3. In its motion for decision. Complainant construed the August 10 letter as 

Respondent's answer. Exh. C-1 at 2. Respondent, however, did not file an official answer to the 

complaint with the Hearing Docket as required by section 13.209 of the Rules of Practice, 14 C.F.R. 

§ 13.209. See Exh. C-3. Accordingly, by rule, all of the allegations in the complaint should be deemed 

admitted. 14 C.F.R. § 13.209(f). 
Meaders stated that, upon physical inspection of the shipment, he determined that the items in 

the shipment were actual safety matches based on their appearance and the distinctive odor of 

phosphorous emanating from the match heads. Id., Declaration at para. 3 and Attachment A, 

Photograph 8. 

In light of this evidence and Respondent's failure to deny any of the remaining 

allegations in the complaint. Complainant argued that it was entitled to judgment as a matter of 

law. Exh. C-1 at 2. With regard to the proposed sanction. Complainant asserted that the amount 

sought, $22,500, was well within the range specified in the sanction guidance for HMR 

violations, which is foimd in FAA Order 2150.3A, Appendix 6. Id. at 3. In support. 

Complainant attached a copy of the sanction guidance and an affidavit from Special Agent 

Meaders explaining how Complainant arrived at the proposed sanction. Exh. C-1, Declaration at 

-para. 5 and Attachment D; see FAA Order 2150.3A, Appendix 6. 

Special Agent Meaders determined that the matches that Respondent shipped in air 

transportation were in Risk Category A, which warranted a maximum-range penalty.'' Exh. C-1, 

Declaration at para. 5 and Attachment D; FAA Order 2150.3 A, Appendix 6 at 6, 18. 

Respondent's conduct fell within Offense Category II of the sanction matrix because the 

shipment was undeclared but within hazardous materials quantity limitations. Exh. C-1, 

Declaration at para. 5 and Attachment D; FAA Order 2150.3 A, Appendix 6, Figure 1 at 14. 

Based on the facts and circumstances of the case, including Respondent's initial admission that it 

had shipped safety matches. Special Agent Meaders determined that Respondent violated the 

subcategories in Offense Category B and determined that a mid-range, rather than a maximum-

^ FAA Order 2150.3 A, Appendix 6, Figure 2, page 18 provides that Risk Category A materials are 

assigned a maximum weight because of their potential to have a "catastrophic effect on an aircraft's 

ability to continue safe flight, resulting in a crash or emergency landing causing injury or death to 

passengers and flightcrew, as well as persons on the ground." FAA Order 2150.3A, Appendix 6 at 18. 
range penalty was appropriate.'* Exh. C-1, Declaration at para. 5 and Attachment D; FAA Order 

2150.3A, Appendix 6 at 14,16. Applying the facts and circumstances in this case to the sanction 

matrix contained in the penalty guidance for HMR violations. Special Agent Meaders 

determined that Respondent committed violations in five different subcategories: shipping 

papers, marking, labeling, training, and emergency response information. Exh. C-1, Declaration 

at para. 5 and Attachment D; FAA Order 2150.3A, Appendix 6 at 10,14. He further determined 

that a penalty in the amount of $4,500 was appropriate for each of the five subcategories of 

offense that were violated, resulting in a total recommended sanction of $22,500. Exh. C-1, 

Declaration at para. 5 and Attachment D; FAA Order 2150.3A, Appendix 6 at 10. 

A hearing was held on August 21, 2009 in Anchorage, Alaska. Tr. at 4. As a preliminary 

matter, the ALJ noted that coimsel for the Complainant was present, but that no one was present 

on behalf of Respondent. Id. at 4-5. Counsel for the Complainant notedtiiat-Complainant4iad — 

filed a motion for decision, which was delivered to Respondent by Federal Express on July 27, 

2009, and asked the ALJ to grant the motion. Id. at 5-6, Exh. C-2. The ALJ determined that, 

based on Respondent's failure to appear, it had abandoned its request for a hearing. Tr. at 6. 

The ALJ noted that he had one concern regarding the evidence that the hazardous 

materials that were shipped were, in fact, matches. Id. at 8. Coimsel for the Complainant 

explained that, initially. Respondent admitted that it had shipped actual safety matches. Id. at 9. 

Later, on August 10, 2009, Respondent sent Complainant a letter in which it asserted that it had 

shipped samples painted to look like matches, rather than actual matches. Id. at 8-9; Exh. C-3. 

Counsel for the Complainant stated that the motion for decision contained a declaration from 

'* Offense Category B is applied to business entities that do not use or handle hazardous materials in the 

course of business or regularly offer, accept, or transport hazardous materials in the course of business. 

FAA Order 2150.3A, Appendix 6 at 14, 16. Under the sanction matrix, the ordinary range of sanction for 

each subcategory of offense violated is $1,500 to $7,500. Id. at 14. 
Special Agent Meaders, who explained how he determined that the materials were safety 

matches. Tr. at 9-10; see Exh. C-1, Declaration at para. 3. With regard to the proposed civil 

penalty, counsel for the Complainant noted that the motion for decision also included the 

sanction guidance table for violations of the HMR along with an explanation of how it arrived at 

the proposed civil penalty of $22,500. Tr. at 7-8. The ALJ found that Respondent was deemed 

to have admitted all of the allegations in the complaint and, subject to his review of the evidence, 

he would enter a decision in favor of Complainant. Id. at 6-7, 10. The ALJ also found that, 

subject to his review of the evidence, he would assess a civil penalty in the amoimt of $22,500. 

Id. at 10. 

The ALJ issued a written initial decision and order on November 4, 2009. Initial 

Decision at 1. The ALJ reiterated that Respondent had constructively admitted all of the 

allegations in the complaint. Initial Decision at 2. The ALJ also determined, after a review of— 

the evidence, that Complainant had "proved its case on the merits." Id. The ALJ found that 

Special Agent Meaders's declaration established that the shipment contained safety matches and 

that it did not contain any of the "marking, labeling, and other information that the HMRs 

require." Id.; Exh. C-1, Declaration at paras. 2-3 and Attachment A. The ALJ also found that 

Respondent had admitted the allegations in the Complaint in its written responses to the letter of 

investigation and the NPCP, respectively. Id. at 2-3; Exh. C-1, Response to NPCP at 3-4 and 

Attachments 1-7, Declaration at Attachment C. 

With regard to the proposed civil penalty, the ALJ stated that he was required to consider 

the totality of the circumstances in determining the appropriate amount. Id. at 3. The ALJ noted 

that cases involving undeclared shipments of hazardous materials are "particularly worrisome" 

and that, under the FAA's sanction guidance for violations of the HMR, shipments of matches 
8 

are assigned a maximum risk because of the potential danger they pose to safe flight. Id. at 3-4. 

The ALJ observed that Complainant, in its sanction determination, categorized Respondent as a 

"business entity" subject to a penalty in the low-to-medium range. Id. at 4; see Exh. C-1, 

Declaration at para. 5, Attachment D. Using the sanction matrix. Complainant determined that 

$4,500 was the midpoint of the penalty range and multiplied that amount by the five offense 

categories that were found to have been violated, resulting in a proposed penalty of $22,500. Id. 

The ALJ found that a civil penalty of $9,000, rather than $22,500, was warranted based 

on the totality of the facts and circumstances in the case. Id. at 4-5. The ALJ determined that 

there were two violations for sanction purposes: "one involving the absence of information on 

the package, and the other concerning the lack of training." Id. at 4. He then assigned a midrange penalty of $4,500 for each violation "in conformance with Complainant's suggestion." Id. 

-"Pae ALJ reasoned^at "in non-egregious cases, assessing multiple penalties for what is 

essentially one type of violation—^tendering a shipment lacking the requisite information— 

should be avoided." Id. The ALJ also noted that that Respondent was not in the business of 

shipping hazardous materials and had "readily admitted to the act comprising the violations." Id. 

The ALJ concluded that a $9,000 civil penalty was appropriate in light of the statutory factors set 

forth in 49 U.S.C. § 5123(c). Id. at 4-5. 

Complainant filed a timely notice of appeal. 

STANDARD OF REVIEW 

On appeal, the FAA Decisionmaker must consider whether the ALJ's conclusions of law 

are in accordance with applicable law, precedent, and public policy. 14 C.F.R. § 13.233(b)(2). 
9 

ISSUE 

The sole issue on appeal is whether the ALJ erred in assessing a lower civil penalty for 

Respondent's violations of the HMR—$9,000—^than the civil penalty requested in the 

Complaint—$22,500. 

ARGUMENT 

The ALJ erred by failing to apply the FAA's validly adopted sanction guidance 

policy in determining the sanction in this case. 

The ALJ found that Respondent violated the HMR as alleged in the Complaint. Tr. at 6-

7, 10; Initial Decision at 2. He determined, however, that the violations warranted a civil penalty 

in the amount of $9,000. Complainant submits that the ALJ erred in assessing a civil penalty 

lower than the $22,500 civil penalty requested in the Complaint because his basis for reducing 

the amount of the civil penalty was arbitrary and inconsistent with applicable law, precedent, and 

FAA sanction guidance. 

A. The ALJ erred in assessing a civil penalty based on two violations of the 

HMR when the undisputed evidence in the record established that 

Respondent violated five distinct subparts of the HMR. 

The statute governing the transportation of hazardous materials, 49 U.S.C. § 5101, et seq. 

provides that "[a] person that knowingly violates this chapter or a regulation, order, special 

permit, or approval issued under this chapter is liable to the United States Government for a civil 

penalty of at least $250 but not more than $50,000/or each violation." 49 U.S.C. § 5123(a)(1) 

(emphasis added). If the violation is related to training, the minimum penalty is $450. 49 U.S.C. 

§ 5123(a)(3). If the violation "results in death, serious illness, or severe injury to any person or 

substantial destruction of property," the maximum penalty is $100,000. 49 U.S.C. § 5123(a)(2). 

The FAA has developed penalty guidelines, approved by the Administrator, to guide 

prosecutorial discretion and to "promote a relative consistency in determining civil penalties for 
10 

violations of the .. . HMR." FAA Order 2150.3A, Appendix 6 at 1 (Apr. 14, 1999). These 

penalty guidelines were adopted and incorporated into FAA Order 2150.3A, as published in the 

Federal Register, and represent the policy of the Federal Aviation Administration. 64 Fed. Reg. 

19443-19450 (Apr. 21, 1999); see In the Matter of Northwest Airlines, Inc., FAA Order No. 90-

37at9(Nov. 7, 1990). 

Under the penalty guidelines contained in FAA Order 2150.3 A, Appendix 6, offense 

categories are divided into subcategories that correspond with subparts of the HMR. Compare 

FAA Order 2150.3A, Appendix 6 at 14 (offense categories) with 49 C.F.R. part 172, subparts C 

(shipping papers), D (marking), E (labeling), G (emergency response information), and H 

(training). Agency personnel evaluate the case to determine which subcategories of the 

corresponding regulations were allegedly violated and then assign a single penalty amoimt for 

eaclrretevantgroupT FAA Order 2150.3A, Appendix 6 at^^lOr-ThisTS^thercase^eveirdiough-^ 

the NPCP may cite numerous violations of a particular .. . subpart of the HMR, unless upward 

departure is justified." Id. at 10. Sanctions are not assessed for violation groups if there have 

been no violations of the corresponding subpart. Id. The penalties attributed to each violation 

group are added together to reach the recommended sanction. Id. at 4,10. 

Although ALJ's are not bound to follow the penalty guidelines, they are entkely subject 

to the agency with regard to matters concerning agency law and policy. Northwest Airlines, Inc., 

FAA Order No. 90-37 at 8 (citing Assoc, of Admin. Law Judges v. Heckler, 594 F.Supp. 1132, 

1141 (D.D.C. 1984)). Accordingly, the FAA Decisionmaker may reverse the ALJ's sanction 

determination on appeal when it is inconsistent with agency policy. Id. at 9-10; see Iran Air v. 

Kugelman, 996 F.2d 1253, 1262 (D.C. Cir. 1993) (holding that the agency decisionmaker 

"remains the final administrative arbiter on questions of law and policy"). 
11 

Here, the ALJ found that the undisputed evidence in the record supported a finding that 

Respondent had committed all of the violations of the HMR alleged in the Complaint. Tr. at 6-7, 

10; Initial Decision at 2. These violations can be grouped into five of the subcategories found in 

Offense Category II of the sanction matrix: shipping papers, labels, markings, training, and 

emergency response information. See Exh. C-1, Declaration at para. 5 and Attachment D. 

Although the ALJ accepted Complainant's recommendation to assess a mid-range penalty of 

$4,500 for each group of regulations (subcategories of "Offense Category 11"), the ALJ 

concluded that Respondent should be subject to sanction for only two violations: one for the lack 

of required information on the package and one for training. Initial Decision at 4. In reducing 

the subcategories of offenses that were subject to sanction, the ALJ erroneously combined four 

of the subcategories—^shipping papers, labels, markings, and emergency response information— 

into a single subcategory that he characterized as "tendering a shipment lacking the required 

information." Id. 

In support of his assessment of a $9,000 civil penalty, the ALJ, citing In the Matter of 

Paul A. Carr, FAA Order No. 98-2 (Mar. 12, 1998), determined that increasing the sanction by 

"assessing multiple penalties for what is essentially one type of violation... should be avoided." 

Initial Decision at 4 (citing Carr at 13-14). In Carr, the FAA Decisionmaker found that many of 

the violations alleged in hazardous materials cases were "duplicative" and, as a result, it was not 

appropriate to consider these "duplicative" violations as separate violations for sanction 

purposes. Carr at 11-12, 14. Carr, however, was decided before the FAA adopted the penalty 

guidelines and, as a result, should not be viewed as controlling in the instant case. 

The FAA's penalty guidelines for violations of the HMR, which apply in this case, 

effectively address the FAA Decisionmaker's concerns regarding the "piling on" of violations 
12 

for sanction purposes by applying a single sanction for each violation group regardless of the 

number of individual regulatory violations pled in the Complaint, unless an upward departure is 

warranted. FAA Order 2150.3A, Appendix 6 at 10. Contrary to the ALJ's reasoning, the 

violation groups that he combined into a single violation group are not duplicative; each group 

requires proof of different elements. The FAA Decisiomnaker recognized as much in Carr when 

she maintained the distinction between violations of different subparts of the HMR—shipping 

papers, labels, markings, and packaging—^notwithstanding her finding that certain violations 

should not count separately for sanction purposes. See Carr at 15 n.25. In Carr, the FAA 

Decisionmaker found that, of the 13 regulatory violations alleged in the Complaint, only 8 

should be subject to sanction. Id. at 10, 15. Of these 8 violations, 5 were violations of various 

provisions in subpart C (pertaining to shipping papers), while the remaining 3 were equally 

divided among subpart D (pertaining to markings), subpart E (pertaining to labeling), and 

49 C.F.R. 173 subpart B (pertaining to packaging).^ See id. at 15 n.25 and Appendix A. 

Each of the subparts at issue in this case—shipping papers, labels, markings, and 

emergency response information—concern distinct communicative fimctions. Each of the 

communicative fimctions is an essential component of the regulatory scheme that has been 

developed to ensure safety in the transportation of hazardous materials. The requuements that 

packages containing flammable solids (matches) be properly marked, labeled, and described on 

shipping papers places persons that accept and transport (e.g., air carriers) on notice as to the 

hazardous nature of the contents of the package and, in turn, provides those persons with the 

information necessary to comply with the handling and stowage requirements that the HMR 

places upon them. See generally 49 C.F.R. 172 subparts C (shipping papers), D (labelmg) and E 

^ It is noteworthy that had the penalty guidelines applied in Carr, the number of violations subject to 

sanction would have been reduced even further—^to 4—because the 5 separate shipping paper violations 

would have been rolled into a single violation group. FAA Order 2150.3 A, Appendix 6 at 4, 10. 
13 

(marking). Emergency response information also has a distinct communicative function in that it 

provides first responders with information concerning the risk posed by the materials m the 

shipment, how to provide immediate and effective first aid if contact with or exposure to the 

material occurs, and how to clean up spills or leaks. .See 49 C-F-R- 172, subpart G(ernergency 

response information). Each of these regulatory requirements provides a separate method of 

communicating essential information about the package and its contents. Together, they create a 

system of safeguards, limitations, and controls. A shipper's failure to comply with any one of 

these communication requirements results in a breakdown of the regulatory scheme and renders 

the system of safeguards ineffective. 

In view of the foregoing, there is no basis to find that the violation groups at issue are 

duplicative. Complainant respectfiilly submits that the ALJ's decision to combine four separate 

groups of regulatory violations—shipping papers, labels, markings, and emergency response 

information—into one regulatory violation for purposes of sanction is contrary to precedent and 

is inconsistent with the FAA's validly adopted sanction guidance. Accordingly, the ALJ erred in 

assessing a lower civil penalty on this basis. 

B. The Complainant's Determination of the Amount of the Proposed Civil 

Penalty Was Appropriate 

Under die Rules of Practice in FAA Civil Penalty Actions, 14 C.F.R. § 13.224(a), 

Complainant must prove both the regulatory violations and the appropriateness of the proposed 

civil penalty by a preponderance of the evidence. In the Matter of Phillips Building Supply, Inc., 

FAA Order No. 2000-20 at 8 (Aug. 11, 2000). In determining die amount of the civil penalty to 

be assessed, the Complainant's representatives must consult the penalty guidelines, which 

incorporate the considerations set forth in 49 U.S.C. § 5123(c). These considerations include the 

nature and circumstances of the violation, the culpability of the violator, whether the violator has 
14 

a history of prior violations, the violator's ability to pay, and other matters that justice requires. 

49 U.S.C. § 5123(c); Phillips, FAA Order No. 2000-20 at 11. The FAA's penalty guidelines for 

violations of the HMR, which factor these considerations into the sanction guidance matrix, 

present a series of questions to_assist agency personnel in determining thesanctionamount 

within the appropriate range based on the various aggravating and mitigating factors that may 

exist in the case. FAA Order 2150.3A, Appendix 6 at 2-3. 

Here, the violations found by the ALJ concern Respondent's offering of an undeclared 

shipment of 19,200 safety matches to Federal Express for transportation by air. Exh. C-1, 

Response to NPCP at 3-4 and Attachments 5, 7, Declaration at para. 2-3. It is undisputed that 

Respondent did not communicate in any way to Federal Express the hazardous nature of the 

contents of the package. Exh. C-1, Declaration at para. 2 and Attachment A, Photographs 1-6. 

Without this information. Federal Express was unable to take the necessary precautions required 

when accepting and transporting flammable materials. The shipment was accepted by Federal 

Express and was transported aboard a flight from Hong Kong, China to Anchorage, Alaska. If 

the package had been placed near an ignition source, the consequences might have been very 

serious, even catastrophic, due to the high level of risk presented by matches. 

While all violations of the HMR are serious, undeclared shipments present an increased 

risk because the air carrier does not know what the material is that it is accepting and/or 

transporting. See In the Matter of Envirosolve, LLC, FAA Order No. 2006-2 at 14 (Feb. 7, 2006) 

(citing In the Matter of Toyota Motor Sales, USA, FAA Order No. 1994-28 at 12 (Sept. 30, 

1994)). Although the risk posed by an undeclared shipment of matches could command a 

maximum range penalty. Complainant determined that a mid-range penalty was appropriate 

based on the facts and circumstances of the case. See Exh. C-1, Declaration at para. 5 and 
15 

Attachment D. There is no evidence of any additional aggravatuig or mitigating circumstances. 

See generally Exhs. C-1, C-3. Respondent's failure to ensure that the shipment of matches in 

this case was properly prepared in accordance with the HMR presented a potentially serious 

hazard to^persons and property, both in the aircraft andjDU the_ ground^Jrherefore, Complain^it 

submits that a $22,500 civil penalty, which is consistent with statutory sanction considerations 

and validly adopted FAA sanction guidance, is not excessive and is warranted under the facts 

and circumstances of the case. 

CONCLUSION 

Complainant submits that the ALJ's decision to impose a $9,000 civil penalty is 

inconsistent with law, precedent, and policy. The ALJ's decision to reduce the number of 

violations subject to sanction is contrary to precedent and FAA sanction guidance. It also fails to 

acknowledge that each of the violation groups at issue require proof of different elements and 

have distinct communicative functions. In contrast to the ALJ's decision. Complainant has 

sustained its burden of proof to show that the proposed civil penalty of $22,500 is consistent with 

FAA sanction guidance and is warranted under the facts and circumstances of the case. 

For the foregoing reasons, the ALJ erred in assessing a $9,000 civil penalty, rather than 

the $22,500 civil penalty requested in the complaint. 

Complainant therefore respectfiilly requests that the FAA Decisionmaker issue an Order 

reversing the ALJ's initial decision and order, in part, by assessing a civil penalty against 

Respondent in the amoimt of $22,500. 
16 

Respectfully submitted, 

Dated: January 29,2010 

Peter J. Lynch 

Assistant Chief Counsel 

landa K. Bruchs, Attorney 

Enforcement Division, AGC-300 

Federal Aviation Administration 

Office of the Chief Counsel 

800 Independence Ave., S.W. 

Washington, D.C. 20591 

Telephone: (202) 493-5548 

Facsimile: (202)267-5106 
17 

CERTIFICATE OF SERVICE 

I hereby certify that on this date I hand-delivered the original and one copy of the 

foregoing Complainant's Appeal Brief to: 

Federal Aviation Administration 

600 Independence Avenue, SW 

Wilbur Wright Building—Suite 2W1000 

Washington, DC 20591 

Attention: Hearing Docket Clerk, AGC-430 

In addition, I hereby certify that on this date I sent by facsimile, registered mail return-receipt 

requested, and Federal Express a copy of the foregoing Complainant's Appeal Brief to: 

Eric Wong 

Apollo A & HS Company 

Flat 1515, Mefro Centre 2 

21 LamHing Street 

Kowloon Bay, Hong Kong 

People's Republic of China 

FAX: 852-23857332 

/i^y^jM^u^ 

Datdd: January 29, 2010 
APPENDIX 

49 C.F.R. 171.2(e) provides: 

§171.2 General requirements. 

(e) No person may offer or accept a hazardous material for fransportation in 

commerce unless the hazardous material is properly classed, described, packaged, 

marked, labeled, and in condition for shipment as required or authorized by 

applicable requirements of this subchapter or an exemption or special permit, 

approval, or registration issued under this subchapter or subchapter A of this 

chapter. 

49 C.F.R. § 172.200(a) provides: 

§ 172.200 Applicability. 

(a) Description of hazardous materials required. Except as otherwise provided in 

this subpart, each person who offers a hazardous material for transportation shall 

describe the hazardous material on the shipping paper in the manner required by 

thissubpart. 

49 C.F.R. § 172.201(d) provides: 

§ 172.201 Preparation and retention of shipping papers. 

(d) Emergency response telephone number. Except as provided in § 172.604(c), a 

shipping paper must contain an emergency response telephone number, as 

prescribed in subpart G of this part. 

49 C.F.R. §§ 172.202(a)(1), 172.202(a)(2), 172.202(a)(3), 172.202(a)(4), and 172.202(a)(5) 

provide: 

§ 172.202 Description of hazardous material on shipping papers. 

(a) The shipping description of a hazardous material on the shipping paper must 

include: 

(1) The identification number prescribed for the material as shown in Column (4) 

ofthe §172.101 table; 
(2) The proper shipping name prescribed for the material in Column (2) ofthe 

§172.101 table; 

(3) The hazard class or division number prescribed for the material, as shown in 

Column (3) of the §172.101 table. The subsidiary hazard class or division number 

is not required to be entered when a corresponding subsidiary hazard label is not 

required. Except for combustible liquids, the subsidiary hazard class(es) or 

subsidiary division number(s) must be entered in parentheses immediately 

following the primary hazard class or division number.... 

(4) The packing group in Roman numerals, as designated for the hazardous 

material in Column (5) of the §172.101 table. Class 1 (explosives) materials; selfreactive substances; batteries other than those containing lithium, lithium ions, or 

sodium; Division 5.2 materials; and entries that are not assigned a packing group ( 

e.g., Class 7) are excepted from this requirement. The packing group may be 

preceded by die letters "PG" (for example, "PG11"); and 

(5) Except for transportation by aircraft, the total quantity of hazardous materials 

covered by the description must be indicated (by mass or volume, or by activity 

for Class 7 materials) and must include an indication ofthe applicable unit of 

measurement, for example, "200 kg" (440 pounds) or "50 L" (13 gallons)... . 

49 C.F.R. §172.203(1) provides: 

§ 172.203 Additional description requirements. 

(f) Transportation by air. A statement indicating that the shipment is within the 

limitations prescribed for either passenger and cargo aircraft or cargo aircraft only 

must be entered on the shipping paper. 

49 C.F.R. §§ 172.204(a), 172.204(c)(2), and 172.204(c)(3) provide: 

§ 172.204 Shipper's certification. 

(a) General. Except as provided in paragraphs (b) and (c) of this section, each 

person who offers a hazardous material for transportation shall certify that the 

material is offered for transportation in accordance with this subchapter by 

printing (manually or mechanically) on the shipping paper containing the required 

shipping description the certification contained in paragraph (a)(1) of this section 

or the certification (declaration) containing the language contained in paragraph 

(a)(2) of this section. 

(1) "This is to certify that the above-named materials are properly classified, 

described, packaged, marked and labeled, and are in proper condition for 
transportation according to the applicable regulations ofthe Department of 

Transportation." 

Note: In line one ofthe certification the words "herein-named" may be substituted 

for the words "above-named". 

(2) "I hereby declare that the contents of this consignment are fully and accurately 

described above by the proper shipping name, and are classified, packaged, 

marked and labelled/placarded, and are in all respects in proper condition for 

transport according to applicable international and national governmental 

regulations." 

(c) Transportation by air —(1) General. Certification containing the following 

language may be used in place ofthe certification required by paragraph (a) of 

this section: 

I hereby certify that the contents of this consignment are ftilly and accurately 

described above by proper shipping name and are classified, packaged, marked 

and labeled, and in proper condition for carriage by air according to applicable 

national governmental regulations. 

Note to paragraph(c)(l): In the certification, the word "packed" may be used 

instead ofthe word "packaged" until October 1, 2010. 

(2) Certificate in duplicate. Each person who offers a hazardous material to an 

aircraft operator for transportation by air shall provide two copies ofthe 

certification required in this section. (See §175.30 of this subchapter.) 

(3) Additional certification requkements. Effective October 1,2006, each person 

who offers a hazardous material for transportation by air must add to the 

certification required in this section the following statement: 

"I declare that all ofthe applicable air transport requirements have been met." 

49 C.F.R. § 172.300(a) provides: 

§ 172.300 ApplicabiUty. 

(a) Each person who offers a hazardous material for transportation shall mark 

each package, freight container, and transport vehicle containing the hazardous 

material in the manner required by this subpart. 
49 C.F.R. § 172.301(a) provides: 

§ 172.301 General marking requirements for non-bulk packagings. 

(a) Proper shipping name and identification number. (1) Except as otherwise 

provided by this subchapter, each person who offers a hazardous material for 

transportation in a non-bulk packaging must mark the package with the proper 

shipping name and identification number (preceded by "UN" or "NA," as 

appropriate) for the material as shown in the §172.101 Table. Identification 

numbers are not required on packagings that contain only ORM-D materials or 

limited quantities, as defined in §171.8 of this subchapter, except for limited 

quantities marked in accordance with the marking requirements in §172.315. 

49 C.F.R. § 172.400(a) provides: 

§ 172.400 General labeling requirements. 

(a) Except as specified in § 172.400a, each person who offers for transportation or 

transports a hazardous material in any ofthe following packages or containment 

devices, shall label the package or containment device with labels specified for 

the material in the §172.101 table and in this subpart ... . 

49 C.F.Rr§172;600(c) provides: 

§ 172.600 Applicability and general requirements. 

(c) General requirements. No person to whom this subpart applies may offer for 

transportation, accept for transportation, transfer, store or otherwise handle during 

transportation a hazardous material unless: 

(1) Emergency response information conforming to this subpart is immediately 

available for use at all times the hazardous material is present; and 

(2) Emergency response information, including the emergency response telephone 

number, required by this subpart is 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 material. 

49 C.F.R. § 172.702(a) provides: 

§ 172.702 Applicability and responsibility for training and testing. 

(a) A hazmat employer shall ensure that each of its hazmat employees is trained in 

accordance with the requirements prescribed in this subpart.