Before the United States Department of Tran~p',~QE Federal Aviation AdministrationIN ~i) 

In the matter of 

EMPIRE AIRLINES, INC. 

) 

) 

) FAA Docket No. CP09NMOO'09 

) FDMS No. FAA-2009-0586 

) 

--------------------------~) 

Complainant's Appeal Brief 

Pursuant to section 13.233(d) of the Rules of Practice for 

FAA Civil Penalty Actions, 14 C.F.R. § 13.233(d), the 

Complainant, Federal Aviation Administration ("FAA"), files this 

brief in the appeal of the Initial Decision of Administrative 

Law Judge ("ALJ") Richard C. Goodwin regarding FAA Docket 

No. CP09NM0009. 

Statement of the Case 

The Complainant issued a complaint dated July 17, 2009, 

requesting that Respondent Empire Airlines, Inc. ("Empire") be 

assessed a civil penalty in the amount of $20,000. The 

pertinent parts of the complaint are as follows: 

* * * 

II. 

1. Empire holds an FAA air carrier operating certificate 

issued under Part 119 and is authorized to carry cargo under 

14C.F.R. Part 121.' 

1 The complaint was amended at the outset of the hearing to 

reflect that Empire Airlines also was authorized to carry cargo 

under 14 C.F.R. part 135. Tr. 7. 
2 

2. On August 22, 2007, FAA special agents conducted a 

ramp inspection of Empire civil aircraft N778FE, a Cessna Model 

208B, at the Rogue Valley International Airport, Medford, 

Oregon. Empire operated N778FE under 14 C.F.R. Part 121 as 

Flight No. 8678 from Portland, Oregon, to Medford, Oregon. 

3. Incident to that inspection, the agents found that 

Empire had operated Flight No. 8678 when: 

a. The Auto DG Manifest for the flight stated that all 

hazardous materials aboard N778FE were loaded in 

position 1, the main deck of the airplane. 

b. Five (5) shipments of class 8 hazardous materials were 

instead loaded in Pod C, in the lower deck of the airplane. 

4. Empire uses the Auto DG Manifest to comply with 49 

C.F.R. § 175.33. 

a. 49 C.F.R. § 175.33(a) (4) requires the operator of the 

aircraft to provide the pilot-in-command with written. 

information before the departure of the' aircraft that 

specifies the location of the packages of hazardous 

materials aboard the aircraft. 

b. 49 C. F . R. § § 175. 33 (c) (2) and (c) (3) require the 

aircraft operator to retain a copy (or electronic image) of 

the notification of pilot-in-command required by 49 C.F.R. 

§ 175.33(a), and have the information required to be 

retained readily accessible at the airport of departure and 

the intended airport of arrival for the duration of the 

flight leg. 

5. Further investigation revealed that Empire had 

accepted the shipments of hazardous materials, described 

above, from Federal Express, and that neither Federal 

Express nor Empire personnel . [had] correctly entered 

the required information on the Auto DG manifest. 

6. Further investigation also revealed that, on 

August 22, 2007, Federal Express offered two other shipments for 

trans~ortation on Flight No. 8678 from Portland to Medford. 2 

a. One shipment was offered on FedEx Prior[ity] Overnight 

airway bill no. 731703530562; 

2 The actual flight number was 8677-22. C-1. 
3 

b. The other shipment was offered on FedEx Priority 

Overnight airway[] bill no. 731703530530. 

c. The shipping label for each shipment stated that 

AstraZeneca Pharmaceuticals, LP, was the shipper., 

7. Each of those shipments consisted of a fiberboard box 

containing Nexium Hand Sanitizing Gel. 

a. Nexium Hand Sanitizing Gel is classified as a 

hazardous material under the Department of Transportation's 

[DOT's] Hazardous Materials Regulations (49 C.F.R. 

§ 172.101). The proper shipping name for Nexium Hand 

Sanitizing Gel is "Ethyl alcohol solutions," Hazard 

class 3, Packing Group III, and has an assigned 

identification number of UNl170. 

b. 49 C.F.R. § 172.316(a) (1) requires the designation 

"ORM-D-AIR" for an ORM-D shipment prepared for air 

shipment. 

c. Each box was marked "ORM-D," but not "ORM-D-AIR." 

d. Each box contained twenty-four (24) 354-ml bottles of 

the product. 

e. The screw-type closures for the bottles did not have a 

positive means to hold them securely, tightly, and 

effectively in place, as required in 49 C.F.R. § 173.27(d). 

f. Neither shipment was accompanied by a shipping paper 

indicating that the shipment contained hazardous materials. 

g. 49 C.F.R. §§ 172.200(a) and (b) require a hazardous 

material shipping paper for an ORM-D material if the 

material is offered or intended for transportation by air. 

8. Empire 'accepted for transportation and transported 

aboard Flight No. 867[7-22] ... each of the above-described 

shipments of hazardous materials when the hazardous materials 

were not prepared for shipment in accordance with 49 C.F.R. 

Chapter I, Subchapter C. 

9. Empire accepted each of the above,-described shipments 

of hazardous material for transportation aboard an aircraft when 

it had not ensured that each hazardous material was: 
4 

a. Described and certified on a shipping paper prepared 

in accordance with 49 C.F.R. Part 172 or Subpart C. 

b. Marked in accordance with 49 C.F.R. Part 172, 

Subpart D. 

The Complainant alleged that Empire violated 49 C.F.R. 

§§ 175.3, 175.30(a) (2), 175.30(a) (3), and 175.33(C) (3).3 Empire 

filed an answer to the complaint in which it denied the 

regulatory allegations. 4 See Respondent's Answer and Statement 

of Affirmative Defenses '(Sept. 16, 2009) ("Answer"). 

A hearing was held in this ma'tter on October 26 and 27, 

2010 in Portland, Oregon. In his written initial decision and 

3 Section 175.3 provides that "[al 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." Section 175.30 (a) (2) provides that "[nl 0 person 

may accept a hazardous material for transportation aboard an 

aircraft unless the aircraft operator ensures that the hazardous 

material is ... (2) [dlescribed and certified on a shipping 

paper prepared in duplicate in accordance ,with subpart C of 

part 172 or as authorized in section 171.11 of this subchapter." 

Section 175.30(a) (3) provides that "[nlo person may accept a 

hazardous material for transportation aboard an aircraft unless 

the aircraft operator ensures that the hazardous material is 

(3) [mlarked ... in accordance with subpart D of 

part 172 or as authorized in section 171.11 of this subchapter 

.... " Section 175.33 (c) (3) provides that" [tl he aircraft 

operator must . . . have the information required to be 

retained under ... paragraph [section 175.33(c)l readily 

accessible at the airport, of departure and the intended airport 

'of arrival for the duration of the flight." 

4 Empire appeared to admit the allegations set forth at 

sections II. 1., 2., 3., 4. Empire also admits sections II. 7. 

and 8. in that it transported hazardous materials (HAZMAT), but 

denies it accepted HAZMAT. Empire either denied or provided. 

non-responsive answers to the other allegations. 
5 

order, the ALJ found that Empire violated sections 175.3 and 

175.30(a) (2) and (3). The ALJ dismissed the 

section 175.33(c) (3) allegation. He assessed a civil penalty of 

$12,000. 

.ptatement of Facts 

Empire is an air carrier certificated under 14 C.F.R. 

part 119 that provides regional cargo carrying service for 

Federal Express ("FedEx") pursuant to an agreement. Tr. 168, 

.C-11 at 1, C-16, Answer at 1. According to Richard Mills, 

Empire's director of quality assurance, Empire carries packages 

for FedEx to and from hub airports· and rural areas in the United 

States.Tr. 168. While the aircraft Empire uses for its 

services to FedEx are owned by FedEx and display the FedEx logo 

(Tr. 149-150), Mr. Mills testified that Empire is solely 

responsible for the operational control of the aircraft 

(Tr. 186), see also C-16 (FedEx Aircraft Dry Lease and Service 

Agreement) at 31-32 ("Federal [Express] and Lessee [i.e., 

Empire] agree that Lessee is solely responsible for the 

operational control of the aircraft and Lessee's operations,as 

that term is defined in the Federal Aviation Regulations") . 

Empire is required to identify with signage on its aircraft 

that its flights are operated by Empire in conformance with 
6 

14 C.F.R. § 119.9(b).5 Tr. 68. Patrick oppenheimer, senior 

manager for corporate safety programs at FedEx, testified that 

Empire aircraft "are not operated by FedEx employees [and] 

are not maintained by FedEx employees." Tr. 150. Empire also 

has FAA-issued operations specifications. C-13. Section D085-1 

consists of a list of aircraft Empire has been authorized by the 

FAA to operate. C-13, Tr. 101. The two aircraft referenced- in 

the complaint in this case are lIsted on Empire's operations 

specifications. Tr. 26, 43, 189, C-14. Empire flight crew 

members are paid by Empire, wear Empire uniforms during the 

performance of their duties, and are trained by Empire. 

Tr. 169-170. 

a. Flight 8678-22 

On August 22, 2007, FAA special agents Donald Stiger and 

Thomas Kenny conducted a routine ramp inspection of Empire at 

Rogue Valley International Airport, Medford, Oregon ("MFR") 

Tr. 17, 94, C-l. Agent S-tiger is assigned to the FAA's 

5 Section 119.9(b) provides, in part: 

No person may operate an aircraft under part 121 or 

part 135 of this chapter unless the name of the certificate 

holder who is operating the aircraft, or the air carrier or 

operating certificate number of the certificate holder who 

is operating the aircraft, is legibly displayed on the 

aircraft and is clearly visible and readable from the 

outside of the aircraft to a person standing on the ground 

at any time except during flight time. 

14 C.F.R. § 11.9. (b). 
7 

Portland, Oregon Hazardous Materials ("HAZMAT") Inspection 

Detachment. C-1. Agent Kenny is the manager of theHAZMAT 

Security Field Office in Renton, Washington. Tr. 92-93. 

As part of the inspection, Agents Stiger and Kenny 

requested FedEx personnel at the MFR FedEx station to produce an 

Inbound Dangerous Goods Alert ("Inbound DG Alert") for Empire 

flights arriving at MFR. Tr. 19, 21, C-2. FedEx personnel 

provided the agents an Inbound DG Alert for Empire 

flight 8678-22, which departed from Portland to MFR. Tr. 21-22, 

45,. C-2. 

The Inbound DG Alert for flight 8678-22 indicated that 

HAZMAT was onboard the aircraft located in "position 1," or the 

main deck. C-2 at 1, Tr. 23. The HAZMAT included corrosives, a 

class 8 HAZMAT. C-2 at 1. The Inbound DG Alert also indicated 

that no HAZMAT was located in the pods of the aircraft." C-2 

at 2, Tr. 24. 

Agent Stiger saw civil aircraft N778FE, a Cessna 

Model 208B, operated as flight 8678-22, arrive at MFR and 

observed the freight offloading operation from the aircraft. 

Tr. 26-27. He noted that N778FE was listed on Empire's 

operations specifications. Tr. 26, C-14. Agent Stiger observed 

the offloading of corrosives from pod C. Tr. 26-27, C-4. 

" Pods are storage spaces located in the lower cargo portion of 

the Cessna 208 below the main deck. Tr. 27. 
8 

Mr. Mills stated that before flight 8678-22's departure 

from Portland, the pilot for the flight requested of FedEx's 

dangerous goods. specialist that the corrosives be relocated from 

the main deck to the pod. Tr. 179. Mr. Mills added that the DG 

specialist made a "pen and paper change of the Auto DG, which 

. in our [i.e., Empire's] manual at that time, it was an 

acceptable practice." Tr. 179. Specifically, the Feeder 

Aircraft Load Control Sheet for flight 8678-22 was marked to 

show that the corrosives had been loaded into pod C. C-3, 

Tr . .28-29. Mr. Mills added that the "expectation was that, 

after that [change] had been made, he [the DG specialist] would 

go back . to the computer and change the computer to reflect 

. how the aircraft had actually been loaded. Tr. 179, 

192-193. The computer change was not made in this case. 

Tr. 179-180. 

Empire relies on FedEx's electronic manifesting system, 

which is referred to as the "Auto DG." Tr. 80-81, 139-14l. 

Mr. Oppenheimer stated that FedEx employees use Auto DG to enter 

information relating to HAZMAT shipments. Tr. 139-142. 

Mr. Oppenheimer added that FedEx employees should update the 

Auto DG every time a HAZMAT shipment changes conveyances so that 

emergency responders can have current database access to the 

information in the event of an incident or accident. Tr. 143. 

Mr. Oppenheimer stated that, to the best of his knowledge, only 
9 

FedEx employees have access to the Auto DG. Tr. 146. Only 

FedEx employees trained in the use of the Auto DG can update th.e 

Auto DG database. Tr. 146-147. Empire employees do not have 

direct access to the Auto DG system to correct Auto DG 

discrepancies. Tr. 149, 175. 

While handwriting on Feeder Aircraft ~oad Control Sheet 

showed that the corrosives were in pod C (C-3 at 1, Tr. 28-29), 

an entry in the FedEx electronic manifesting system to reflect 

the repositioning of this material was not accomplished. 

Tr. 32, C-3 at 2). The actual location of the corrosives aboard 

flight 8678-22, therefore, was not readily available at the 

intended airport of arrival, i.e., MFR. Tr. 32. 

b. Flight 8677-22 

During their August 22, 2007 ramp inspection of Empire at 

MFR, Agents Stiger and Kenny observed the arrival and offloading 

of Empire flight 8677-22, a flight from Portland to MFR. 

Tr. 41, 47-48. Empire used civil aircraft N940FE ("N940FE"), a 

Cessna 208, to conduct thi's flight. Tr. 42. N940FE is listed 

on Empire's operations specifications. Tr. 43, ·C-14. Agent 

Stiger's review of the Inbound DG Alert for flight 8677-22 

indicated that the aircraft carried no HAZMAT. Tr. 41-2, C-5. 

A FedEx tracking document indicated that flight 8677-22 

carried two shipments associa·ted with FedEx tracking numbers 

731703530562 and 731703530530. Tr. 45-46. Agent Stiger 
lO 

observed two fiberboard boxes bearing tracking numbers 

731703530562 and 731703530530 being off loaded from 

flight 8677-22. Tr. 49, C-8 at 2. The packages were marked 

"Consumer Commodity ORM-D" on both sides of each box; one such 

marking was near the shipping label. C-l at l-2, Tr. 49. The 

two shipments were accepted by FedEx from AstraZeneca in 

Baltimore, Maryland on August 2l, 2007. C-l at l-2. 

Agent Stiger testified that an "ORM-D" marking indicates 

that the packages contained "consumer commodity" HAZMAT and was 

not authorized for shipment by air. Tr. 49, 53. To have been 

authorized for air transportation the shipment was required to 

have been marked "ORM-D-Air." Tr. 49-50. No shipping papers 

indicating that HAZMAT was contained in the two packages 

accompanied the packages. Tr. 50. The HAZMAT was not recorded 

on a notification to pilot~in-command. Tr. 53. 

The FedEx MFR station manager opened both packages at the 

agents' request. Tr. 54, 56. The packages contained 24 bottles 

of Nexium hand sanitizing gel, which is classified as 

ethanol/alcohol solutions or ethanol, identification 

number UNll70, hazard class 3, packing group III. Tr. 55-56, 

57-58, C-9. This HAZMAT was contained in plastic bottles with 

screw caps with no positive means over the caps as required by 

49 C.F.'R. § l73.27. Tr.55. Because of the absence of positive 

means over the caps,the material was prohibited from being 
11 

reclassified as ORM-D~Air and, thus, was prohibited from air 

shipment. Tr. 49-50, 55. 

Both Agents Stiger and Kenny referenced portions of the 

Empire General Operations Manual (;'GOM") for HAZMAT. See C-11. 

The GOM stated that Empire employees are responsible for 

compliance with all the provisions of the HAZMAT regulations. 

Tr. 98, C-11 at 8. Non-compliant HAZMAT shipments are required 

to be rejected and segregated from all other cargo shipments to 

prevent accidental introduction of the material into the 

transportation system. Tr. 64-5, 99, C-11 at 12. Under 

Empire's GOM, pilots are responsible for supervising the loading 

of HAZMAT aboard Empire aircraft. Tr. 52, 66, 100, C-11 at 41. 

During the loading, HAZMAT must be separated from other freight 

so the crewmember may accomplish the pre-load inspection. 

Tr. 66, C-11 at 41. 

ALJ's Initial Decision 

In dismissing the section 175.33(c) (3) allegation (which 

relates to flight 8678-22), the ALJ found that "in these 

circumstances, [Empire] may not be held legally 

responsible for the fact that a change in the hazmats' locationfailed to be reflected in the downline record." Initial 

Decision at 4. While the ALJ acknowledged that 

section 175.33(C) (3) obligated an "operator," such as Empire, to 

"ensure that data showing the location of hazmats on board is 
12 

'readily accessible' at the operator's destination," he added 

that 49 C.F.R. § 171.2(f) allows a carrier transporting HAZMAT 

to reasonably rely on information provided by an offeror of 

HAZMAT. Id. Here, according to the ALJ, Empire could have 

reasonably assumed that FedEx would make the necessary computer 

entry to ensure that the change in the location of the HAZMAT 

was communicated to the intended destination airport. Id. 

In finding that Empire violated sections 175.3, 

175.30 (a) (2), and 175 (a) (3) (which relates to flight 8677-22), 

the ALJ concluded that "Empire has a full and independent 

obligation to comply with the HMRs." Id. at 6. The judge found 

that this obligation is compelled bytheHMRs (citing 49 C.F.R. 

§ 171.1) and Empire's own GOM. Id. at 6-7. Although the ALJ 

noted that FedEx employees loaded the HAZMAT in this case, he 

found that the Empire pilot's duty of ensuring that the packages 

were shipped in compliance with the HMRs was "not delegable or 

transferable." Id. at 7. 

The ALJ assessed a civil penalty of $12,000, representing 

$3,000 for each of the four violations he found in this case, 

i.e., shipping paper and marking violations for two packages. 

Id. at 11. He found that the lack of shipping papers for the 

HAZMAT aboard flight 8677-22 "must be considered a mitigating 

factor" in that such a circumstance created the "natural --

though not excusable -- [tendency tol relax one's guard and fail 
13 

to look for problems with the same vigilance one might perform 

otherwise. " Id. at 10. 

·Issues 

1. Whether the ALJ erred in finding that Empire did not 

violate section 175.33(c) (3) of the HMRs. 

2. Whether the ALJ erred in reducing the civil penalty 

requested by the Complainant. 

Argument 

1. The ALJ erred in finding that Empire did not violate 

section 175.33(c) (3) of the HMRs. 

The ALJ erred in dismissing the section 175.33(c) (3) 

violation against Empire. The ALJ correctly found that Empire 

"is responsible as the operator for compliance with the HMRs," 

and that "this responsibility is so critical . . . that it may 

not be delegated." Initial Decision at 4. The ALJ, however, 

erred in finding that section 171.2(f) served to e~onerate 

Empire from a violation of section 175.33 (c) '(3). Any suggestion 

that Empire could rely on FedEx to fulfill the requirements of 

section 175.33(c) (3) is meritless. In short, Empire violated 

. section 175.33(c) (3) and should be held accountable for the 

violation. 

A. Empire is independently responsible for complying with 

section 175.33 (c) (3). 

The HMRs plainly state that aircraft operators -- .such as 

Empire -- have an independent and non-delegable responsibility 

to comply with the requirements of the HMRs, including 
14 

section 175.33(C). Part 175 of the HMRs sets forth requirements 

that apply to the "offering, acceptance, and transportation of 

hazardous materials in commerce by aircraft to, from, or within 

the united States . " 49 C.F.R. § 175.1(b). These 

requirements apply to "any person who performs, attempts to 

perform, or is required to perform any function subject to [49 

C.F.R. subchapter C -- Hazardous Materials Regulationsl 

including ... [alir carriers ... and their flight and 

non-flight employees, agents, and contract personnel . . . " 

49 C.F.R. § 175.1(b) (1). 

Among other requirements in HMR part 175, Empire, as an 

aircraft operator/air carrier, is required to comply with 

section 175.33(c) (3).7 section 175.33(c) (3) specifies that 

"[tlhe aircraft operator must [hlave the information 

required to be retained under this paragraph [i.e., shipping 

papers and notifications of pilot-in-commandl accessible at 

. . . the intended airport of arrival for the duration of the 

flight leg." 49 C.F.R. § 175.33(C) (3). The notification to the 

pilot-in-command must include, among other things, "accurate" 

information regarding the location of HAZMAT aboard an aircraft. 

49 C.F.R. § 175.33(a) (4}. The use of the word "must" in 

7 The word "Operator" is defined by the HMRs as "a person who 

controls the use of an aircraft, vessel, or vehicle." 49 C.F.R. 

§ 171.8. Empire does not dispute that it had operational 

control over all its aircraft, Tr. 186, including that used for 

flight 8678-22. 
15 

section 175.33{C) (3) underscores that an aircraft operator's 

compliance with the requirements of that section is mandatory. 

Accordingly, while Empire may opt to arrange for another entity 

to perform the functions required by section 175.33{c) (3) on its 

behalf, the regulation, by its terms, ultimately holds Empire --

the aircraft operator -- responsible for compliance. 

Empire's independent obligation as a carrier of HAZMAT by 

aircraft to comply with the HMRs is reiterated by its GOM. 

Empire's GOM provides that its employees "are responsible for 

compliance with all provisions of the Hazardous Material 

Regulations . . C-l1 at 8. Among other HMR provisions 

with which Empire employees must comply is one shadowing the 

requirements of section 175.33{c){3): 

A copy of each notification of pilot-in-command must be 

retained at the airport of departure or the operator's 

principal place of business for 90 days. This information 

must be readily accessible at the airport of departure and 

the intended airport of arrival for the duration of the 

flight leg 

C-ll at 20. As Mr. Mills testified, Empire employees are 

required to comply with the Empire GOM. Tr. 187. Thus, by the 

terms of its own GOM, Empire retained ultimate responsibility 

for complying with section 175.33{c) (3). 

Case law regarding air carrier responsibility supports a 

conclusion that an air carrier's responsibilities required by 

safety regulations cannot be delegated. The seminal case in 
16 

this regard is In the Matter of Alaska Airlines, FAA Order 

No. 2004 (Oct. 4, 2004). In Alaska Airlines, the FAA 

Decisionmaker concluded that Alaska Airlines ("Alaska") was 

responsible for faulty maintenance performed on Alaska aircraft 

by its contractors notwithstanding whether Alaska.knew or, 

through the exercise of reasonable diligence, could have known 

of the violation. The Decisionmaker observed that a regulation 

pivotal to the resolution of the case -- 14 C.F.R. § 121.363 

stated that air carriers, like Alaska, were "primarily 

responsible for . the airworthiness of its aircraft" and 

could not avoid this responsibility though contractual 

agreements with other entities for the performance of 

maintenance. 14 C.F.R. § 121.363(a) and (b). The Decisionmaker 

concluded: "[t]hus, the regulation does not allow air carriers 

to evade their primary responsibilities by delegating their 

maintenance obligations to third parties." FAA Order No. 2004 

at 6. 8 

8 See aiso In the Matter of Empire Airlines, FAA Order 

No .. 2000-13 (Jun. 8, 2000) ("[a]llowing an air carrier to 

delegate its primary responsibility for the safety of its 

aircraft would not serve the public interest"); In the Matter of 

WestAir Commuter Airlines, FAA Order No. 96-16 at 6-7 (May 3, 

1996) ("[f]t has also been stated in previous cases that air 

carriers have a statutory mandate to perform their services with 

the highest possible standard of care, and that an air carrier's 

.responsibilities are too critical to permit it to transfer its 

obligations to another"); In the Matter of USAir, FAA Order 

No. 92-70 (Dec. 17, 1992) (carrier was responsible for the 

operation of an unairworthy aircraft caused by the failures of 
17 

The Decisionmaker in Alaska Airlines further observed that 

the FAA's governing statute supported her conclusion that Alaska 

was required to comply with safety regulations applicable to 

carriers: 

The courts and the Administrator. . have indicated 

repeatedly in past cases that an air carrier's duties, 

which include a statutory duty to exercise the highest 

possible degree of care, are nori-delegable. The rationale 

is one of public policy -~ it is that the duties of common 

carriers are too important to permit them to transfer them 

to someone else. 

FAA Order No. 2004 at 6 (citations omitted). The FAA's 

governing statute refers to the duty of an air carrier to 

provide service with the highest possible degree of safety in 

the public interest. See 49 U.S.C. § 44701(d) (1) (A) 

(promulgation of regulations and standards); 49 U.S.C. § 44702 

(issuance of certificates). That the HAZMAT statute does.not 

contain a similar provision for air carriers does not mean that 

air carriers are relieved from their duty to act with the 

highest possible degree of care when conducting activities 

related to the transportation of HAZMAT. 

In enacting the enabling statute regarding civil aviation, 

Congress recognized the heightened importance of air carrier 

responsibilities as a matter of public policy. In the civil 

Aeronautics Act of 1938, Congress empowered the newly created 

its contract pushback operator be·cause the carrier's duty to 

comply with safety regulations is non-delegable) . 
18 

Civil Aeronautics Authority (CAA) to promote aviation safety by, 

among other things, prescribing regulations necessary to provide 

for safety in air commerce. See Civil Aeronautics Act (CA Act) 

of 1938 § 601(a) (6). In so doing, Congress required the CAA to 

"give full consideration to the duty resting upon air carriers 

to perform their services with the highest possible degree of 

safety in the public interest . " Id. at § 601(b). 

Congress adopted this provision in the Federal Aviation Act of 

1958 (FA Act) at 49 U.S.C. §§ 601(a) and (b). It also retained 

this requirement in the subsequent amendment (49 U.S.C. 

§§ 1421(a) and (b)) and recodification (49 U.S.C. §§ 44701(a) (5) 

and (d) (1) (A) (1994)) of Title 49. Congressional recognition 

that air carriers are to perform duties "with the highest 

possible degree of safety in the public interest" is a 

long-standing policy- and common law-based concept .that is not 

limited to air carrier activities conducted pursuant to the 

FAA's governing statute. Rather, given the broad underpinnings 

of the principal, it applies to the carriage of HAZMAT in air 

commerce as well. 

While Alaska Airlines, and the related cases cited in 

footnote 8 of this brief, ultimately require carriers to comply 

with regulations that ensure the airworthiness of the aircraft 

they operate, the principle articulated in these cases cannot 

fairly be limited to a maintenance context. The point of the 
19 

Alaska Airlines line of cases is that an air carrier has a 

responsibility to comply with regulations intended to ensure 

safe commercial transportation by aircraft and that this 

responsibility is so important that it cannot be delegated. 

Section 175.33(c) (3), too, is intended to advance safety in the 

aviation context by giving emergency responders sufficient 

information to address HAZMAT-related emergencies aboard an 

aircraft at or near the destination airport. 

In 2003, the DOT published a final rule that set forth the 

safety basis for section 175.33(c) (3), highlighting the unique 

challenges facing emergency responders in- the aviation context. 

The DOT stated: 

[E]mergencies involving hazardous materials transported by 

aircraft provide difficulties- to emergency responders not 

usually encountered in other modes of transportation. The 

flight crew may not have time or otherwise be able to 

provide information -during or immediately after the 

emergency. An aircraft involved may be damaged to such an 

extent the information cannot be retrieved from it. 

68 Fed. Reg. 14341, 14343 (Mar. 25, 2003). Agent Stiger 

explained that having information regarding the location of 

HAZMAT aboard aircraft readily available at the intended arrival 

airport is important to emergency responders, should there be 

any HAZMAT-related incident at or near the arrival airport. 

Tr. 33. He stated that emergency responders should "have 

complete, and accurate, and timely information of . not only 

wha twas -on board . . [but] where it's on board, and any 
20 

additional information that is needed to . . respond to an 

emergency. " Tr. 33. Agent Stiger, who had been a pilot, stated 

that in the event of an emergency, including an aircraft 

accident, a pilot would likely be more focused on freeing 

himself from the aircraft than gathering paperwork indicating 

the location of HAZMAT. Tr. 14, 34-35. 

Further highlighting the safety-significance of 

Section 175.33(c) (3) is the fact that that regulation was a 

result of a recommendation by the National Transportation Safety 

Board ("NTSB"). The NTSB recommend that the DOT: 

[rJequire . that air carriers transporting hazardous 

materials have the means, 24 hours per day, to quickly 

retrieve and provide consolidated specific information 

about the identity. ., hazard class, quantity, number of 

packages, and location of all hazardous material on an 

airplane in a timely manner to emergency responders. 

68 Fed. Reg. at 14341. According to Agent Stiger, the NTSB 

recommendation arose from concerns that the information required 

by section 175.33(c) (3) was not timely available to emergency 

response personnel following four FedEx aircraft incidents. 

Tr. 33-34. 

The public policy behind preventing an air carrier from 

delegating the responsibility for compliance with 

section 175;33(c) (3) is abundantly clear. Simply put, an air 

carrier's responsibility is too important to be transferred to 

another. While Empire may elect to enter into an agreement with 
21 

FedEx under which FedEx performs the functions required by 

section 175.33(C) (3) on Empire's behalf, Empire should not be 

allowed to barter away its responsibility to comply with this 

safety requirement. If this were allowed, an air carrier could 

avoid regulatory compliance simply through contractual 

agreements. See, e.g., Alaska Airlines, FAA Order 2004-8 ("[aJ 

holding that lack of knowledge alone exempts air carriers from 

responsibility could provide air carriers with incentive to look 

the other way and avoid all knowledge of maintenance 

improprieties. . ") . 

In sum, the plain language of -- as well as the safety and 

public policy bases for -- section 175.33(C) (3) establishes that 

air carriers that choose to carry HAZMAT in air commerce have an 

independent obligation to fully comply with the terms of that 

section. 

B. The ALJ misapplied section 171.2(f) in dismissing the 

section 175.33(c) violation against Empire. 

The ALJ's reliance on section 171.2(f) in finding that 

Empire was absolved from the requirements of section 175.33(c) 

is misplaced. section 171.2(f) provides: 

No person may transport a hazardous material in commerce 

unless the hazardous material is transported in accordance 

with applicable requirements of this subchapter 

Each carrier who transports a hazardous material in 

commerce may rely on information provided by the offeror of 

the hazardous material or a prior carrier, unless the 

carrier knows or, a reasonable person, acting in the 

circumstances and exercising reasonable care, would have 
22 

knowledge that the information provided by the offeror or 

prior carrier is incorrect. 

49 C.F.R. § 171.2(f) (emphasis added). The ALJ construed "a 

paper copy reflecting the locational change [of the HAZMATJ" as 

·"information provided by.the offeror or a prior carrier" 

(Initial Decision at 4). Section 171.2(f) is not amenable to 

the ALJ's expansive application. 

In 2005, the DOT published the final rule associated with 

section 171.2(f). The final rule amended the HMRs to add a 

definition for a "person who offers" or an "offeror" to codify 

longstanding interpretations on the applicability of those 

regulations. 70 Fed. Reg. 43638 (Jul. 28 2005). One aspect of 

the final rule was to define the responsibilities of offerors of 

HAZMAT, i.e., those that perform pre-transportation functions as 

defined at 49 C.F.R § 171.8. 70 Fed. Reg. at 43638. The final 

rule spec.ified that offerors are responsible for the specific 

functions they are required to perform. 70 Fed. Reg. 43640 

("[wJe are adopting in § 171.2 the language proposed in. the NPRM 

to clarify that each offeror is responsible only for the 

specific pre-transportation functions it performs or is required 

to perform") .9 

9 More particularly the final rule provides: 

[E]ach person is liable for its own violations that may 

involve noncompliance in: (1) Preparing a shipment of 

hazardous material for transportation ... ; (2) accepting 
23 

Notwithstanding its delineation of responsibilities of 

offerors, the DOT stated that it was "clarifying that each 

offeror or carrier may rely on information provided by a 

previous offeror or carrier unless the offeror or carrier knows 

or, a reasonable person acting in the circumstances and 

exercising reasonable care, would have knowledge that the 

information provided is correct.n 70 Fed. Reg. at 43638. 

Versions of this provision were ultimately published at 

49 C.F.R. § 171.2(b) (regarding HAZMAT offerors) and 49 C.F.R. 

§ 171.2 (f) (regarding HAZMAT transporters). 

The regulatory history reveals that section 171.2(f) is 

inapplicable in this case because the requirement of 

section 175.33(c) (3) that Empire have accurate information 

regarding the location of HAZMAT aboard the aircraft it was 

operating readily accessible at MFR was Empire's individual and 

non-delegable responsibility. Accordingly, section 171.2(f) 

cannot serve to exonerate Empire for its reliance on inaccurate 

information purportedly generated by FedEx (i.e., the Feeder 

Aircraft Load Control Sheet) regarding the location of HAZMAT 

aboard Empire flight 8678-22. 

for transportation a shipment of hazardous material that 

does not conform to the requirements in the HMR; or 

(3) failing to handle or transport a shipment of hazardous 

material in the manner required by the HMR. 

70 Fed. Reg. 43640 (emphasis added). 
24 

Moreover, the ALJ misunderstood what actually constituted 

the "information" upon which the Empire pilot relied. Empire, 

through its pilot, did not, as the ALJ found, rely on -"a paper 

copy reflecting the Iocational change [of the HAZMATJ" as 

"information provided by the offeror . . . or a prior carrier" 

(Initial Decision at 4) as provided in section 171.2(f). 

Rather, according to Mr. Mills, Empire, through its pilot, 

relied on the undocumented "expectation" that FedEx would enter 

that information in its Auto DG electronic manifesting system. 

Tr. 179. The Empire pilot's expectation followed the request by 

the pilot of flight 8677-22 to the FedEx DG specialist in 

Portland to relocate the corrosives from the main deck to pod C 

and the DG specialist's relocation of the corrosives _to pod C. 

Tr. -179. The pilot's "expectation" is not the type of written 

"information" contemplated by section 171.2(f). As stated in 

the regulatory history to the final rule for section 171.2(f), 

the information contemplated by section 171.2(b) J'.nd (f) is in 

the nature of that related to, for example, the packaging, 

markings, labels, or shipping papers required by the HMR. See, 

d 10 e.g., 70 Fe . Reg. 43638. 

10 In the regulatory history to section 171.2(f), the DOT stated 

that where -a carrier accepting HAZMAT knows a package does not 

document information in compliance with the HMRs, it must reject 

the package or ensure the correction of discrepancies. _ 

Specifically, the DOT stated: 
25 

In any event, Empire had reason to know that the location 

of the corrosives was not accurately documented, which should 

have led to further investigation by Empire personnel consistent 

with its regulatory obligations. Exhibit C-3, which included 

the .Feeder Aircraft Load Control Sheet and Aircraft DG Position 

Summary (C-3 at 1-2), was used by Empire to meet the pilot 

notification requirement of the HMRs. Tr. 35-36, C-11 at 1. 

Accordingly, Empire, through the pilot of flight 8678-22, knew 

or should have know about the discrepancy between the Feeder 

Aircraft Load Control Sheet (which indicated the corrosives were 

in pod-C ) and the Aircraft DG Position Summary (which indicated 

that the corrosives were in position I). Rather than having the 

"expectation" (Tr. 179) that FedEx would enter the change in its 

electronic manifesting system, Empire personnel should have 

taken appropriate measures to ensure that the discrepancy was 

more than, as Mr. Mills described, "a pen and paper change." 

Note that a carrier that knows that information 

accompanying a hazardous material shipment is incorrect may 

not accept the shipment for transportation unless and until 

the information has been corrected and any discrepancies 

involving this shipment have been resolved. Indeed, a 

carrier that knowS that a hazardous materials shipment do.es 

. not comply with the HMR in any respect (e.g., packaging, 

markings, labels, shipping paper) may not accept the 

shipment for transportation unless and until the problems 

are corrected and any discrepancies resolved. 

70 Fed. Reg. at· 43639. 
26 

Tr. 179. Stated.differently, Empire should have taken the 

action necessary to ensure compliance with section 175.33(c) (3). 

The ALJ, accordingly, misapplied section 171.2(f) in 

dismissing the section 175.33(c) violation against Empire. 

c. Empire violated section 175.33(c) (3) and its efforts 

to place the blame on FedEx for the violation are 

meritless. 

The Complainant has proven by a preponderance of the 

evidence that Empire violated section 175.33 (c) (3). Presumably 

pursuant to a business decision, Empire elected to use the FedEx 

Auto DG system to meet the requirements prescribed by 

section 175.33(C) (3). Tr. 80-81. FedEx, in turn, used its Auto 

DG system to make readily available information regarding the 

location of HAZMAT aboard aircraft to intended airports of 

arrival. C-11 at 1, Tr. 141. In this case, the pilot of 

flight 8678-22 requested the FedEx DG specialist in Portland to 

relocate corrosives from the main deck to pod C. Tr. 179. The 

DG specialist complied and the HAZMAT was relocated to the pod. 

Tr. 179. The DG specialist, according to Mr. Mills, made a· "pen 

and paper change of the Auto DG." Tr. 179. 

In actuality, the DG Specialist completed the Feeder 

Aircraft Load Control Sheet indicating that the corrosives were 

in pod C. C-3 at 1. The Auto DG documentation, which was 

attached to the Feeder Aircraft Load Control Sheet, still showed 

the corrosives to be in position 1, or the main deck. C-3 at 2, 
27 

Tr. 36. The Empire pilat, according to Mr. Mills, had the 

"expectatian . . . that, after that [change] had been made, ·he 

[the DG specialist] would go back . . . to the camputer and 

change the computer to reflect . . . how the aircraft had 

actually been loaded. Tr. 179, 192-193. The camputer change, 

however, was not made. Tr. 32, 179-180. Accordingly, the 

informatian readily available at the intended airpart .of arrival 

shawed that the carrosives were located in the main deck when 

they were actually in pad C. Tr. 36. Since the information 

regarding the location .of the HAZMAT was not accurate, as 

required by section 175.33(a) (4), Empire did nat comply with the 

requirements .of section 175.33(c) (3). 

Empire presented testimany at the hearing in an effort to 

distance itself fram its responsibility to camply with 

section 175.33(c) (3) and place compliance respansibility wholly 

on FedEx.11 Mr. Mills testified that FedEx owns the aircraft 

that Empire operates far the purpose praviding regianal cargo 

carrying service ta FedEx. Tr. 168. Messrs. Oppenheimer and 

Mills testified that only FedEx employees have access to 

Auta DG. Tr. 146, 175. Only FedExemployees trained in the use 

11 To the extent that Empire claims it did not violate 

section 175.33·(c) (3) because it relied on FedEx to perform the 

functions required by that section, and .only FedEx was·required 

to perform thase functions, Empire fashians a pasition in the 

nature of an affirmative defense. A party who has asserted an 

affirmative defense has the burden of praving the affirmative 

defense. 14 C.F.R. § 13.224(c). 
28 

of Auto DG can update the Auto DG system. Tr. 146-147. Empire 

employees do not have direct access to the Auto DG system to 

correct Auto DG discrepancies. Tr. 149, 175. Rather, according 

to Mr. Mills, the Empire pilot for flight 8677-22 expected FedEx 

personnel to make the change in FedEx's electronic manifesting 

system and, apparently, . had no reason to believe that this would 

not be done. Tr. 179, see also Post-Hearing Brief of Respondent 

at 10. 

Empire's reliance on FedEx's performance of functions to 

suggest that it did not know it had not complied with 

section 175.33(c) (3) misses the obvious point that Empire -- the 

aircraft operator -- was independently responsible for having 

accurate information relating to the location of HAZMAT readily 

available at the intended airport of arrival pursuant to 

section 175.33 (c) (3) .'2 

While Empire claims to fall within FedEx's corporate 

shadow, Empire's status as· a carrier independent from FedEx is 

12 Mr. Mills testified, without support, that a "pen and paper 

change" to the Auto DG had been an "acceptable practiGe" at the 

time of the inspection. Tr. 179. As to whether a FedEx 

employee was permitted at the time to make· changes in· 

handwriting to the Auto DG is not relevant in the analysis of 

·this case. Empire is required to ensure that any handwritten 

changes relating to the location of HAZMAT aboard aircraft are 

ultimately made readily available at the intended airport of 

arrival consistent with the requirements of 

section 175.33 (c) (3) . 
29 

amply evident from the record. The following facts are 

undisputed: 

• Empire is an air carrier certificated under 14 C.F.R. 

part 119 (Tr. 168, C-11 at 1, Answer at 1); 

• Empire is solely responsible for the operational 

control of its aircraft (Tr. 186); 

• Empire has FAA-issued operation specifications (C-13), 

and both aircraft involve in the flights in this case 

are on Empire's operations specifications (Tr. 26, 43, 

189, C-14); 

• Under the terms of the FedEx Aircraft Dry Lease and 

Service Agreement, "Federal [Express] and . . . 

[Empire] agree that . . . [Empire] is solely 

responsible for the operational control of the 

aircraft and ... [Empire's] operations, as that term 

is defined in the Federal Aviation Regulations" (C-16 

at 31-32); 

• Under the terms of the lease agreement, FedEx is not 

liable to Empire for acts.or omissions of Empire's 

agents or employees (C-16 at 16); 

• Empire is required to identify with signage on its 

aircraft that its flights are operated by Empire in 

conformance with 14 C.F.R. § 119.9(b) (Tr. 68); 

• Empire aircraft are neither operated nor maintained by 

FedEx (Tr. 150); 

• Empire flight crew members are paid by Empire, wear 

Empire uniforms during the performance of their 

duties, and are trained by Empire (Tr. 169-170). 

The ALJ erroneously accepted the concept that Empire 

reasonably expected that FedEx would fulfill Empire's duty to 

comply with section 175.33(c) (3). In this regard, the ALJ 

stated that "[t] he HMRs . .. . do not charge the operator with a 
30 

duty to investigate and the concomitant knowledge of what an 

investigation would have revealed." Initial Decision at 4. He 

added that "[t] he risk of non-compliance was small, and the 

inconvenience to Empire comparatively great." Id. It is true 

that the HMRs do not specifically require an aircraft operator 

to investigate whether an entity upon which the operator relies 

has performed the operator's requirements set forth at 

section 175.33(c)(3). Section 175.33(c)(3), however, required 

Empire's compliance; the method of compliance chosen by Empire 

was up to Empire. 13 Whether compliance proved difficult (or 

costly), for' Empire is not relevant. 14 Empire had an opportunity 

to ensure compliance with section 175.33(c) (3) but did not. 

13 It is worth noting that Empire has taken measures to better 

ensure that it complies with the section 175.33(c) (3) 

requirement. According to Mr. Mills, Empire now requires FedEx 

to present its pilots computer generated documentation showing 

that any HAZMAT location change had been entered into the 

Auto DG system. Tr. 179-180. The ALJ found that "[t]he fact 

.', that Empire has since implemented a method of ensuring 

that this situation [i.e., the failure to comply with 

section 175.33(a) (3)] is not repeated should not suggest that 

the carrier was duty-bound to employ the method in the first 

place." Initial Decision at 5. Whether Empire was "duty-bound" 

to comply with any particular corrective action is not at issue 

in this case, however. The issue is whether Empire was required 

to comply with section 175.33(a) (1) but failed to do so. 

14 It is also debatable whether'Empire's inconvenience would have 

been ,"comparatively great." It does not appear to have been 

difficult for Empire to have taken the steps necessary to ensure 

that FedEx put the information from the Feeder Aircraft Load 

Control Sheet in its computer system so' that the information 

would be available at MFR. 
31 

2. The ALJ erred in reducing the civil penalty requested 

by the Complainant. 

The ALJ erred in reducing the $20,000 civil penalty sought 

by the Complainant to $12,000. The ALJ's basis for reducing the 

civil penalty -- the lack of shipping papers for the HAZMAT 

aboard flight 8677-22 -- is insufficient. 

In determining the sanction amount in FAA enforcement 

actions involving the HMRs, the governing statute requires 

.consideration of: (1) the nature, circumstances, extent, and 

gravity of the· violations; (2) with respect to the violator, the 

degree of culpability, any history of prior violations, the 

ability to pay, and any effect on the ability to continue to do 

business; and (3) other matters that justice requires. 49 

U.S.C. § 5123(a). See also 14 C.F.R. § 1316(a) (4) (listing the 

same factors). ·In determining the appropriate penalty, it is 

improper to take the mathematical, formulaic approach of 

multiplying the number of violations by a set dollar amount. 

See In the Matter of Interstate Chemical Co., Inc., FAA Order 

No. 2002 (Dec. 2, 2002) .'5 

Here, the Complainant's civil penalty request was based on 

HMR violations occurring in connection with two separate 

flights. The Complainant considered Empire's HMR violations 

within the context of certain sanction assessment factor 

15 Since the violations in this case took place in August 2007, 

FAA Order 2150.3A governed the sanction determination. 
32 

questi9ns. These questions addressed factors involving the 

nature, circumstances, extent, and gravity of the violations, 

Empire's degree of culpability, and Empire's violation history. 

See, e.g., Tr. 70-77, C-12 (64 Fed. Reg. 19443, 19445). 

Following its analysis of assessment factors, the 

Complainant applied the facts of this case to the sanction 

matrix for air carriers. Empire is a Group II air carrier. 

Tr. 74, C-12 (64 Fed. Reg. at 19448). Concerning 

flight 8677-22, Empire committed four separate violations: two 

acceptances of HAZMAT without shipping papers (in violation of 

section 175.30(a) (2)) and two acceptances of HAZMAT without 

proper markings (in violation of section 175.30 (a)'(3)). The 

sanction range for Group II carriers for section 

175.30(a) (1)-(4) violations is $5,000 to $27,500 per violation. 

Tr. 74, C-12 (64 Fed. Reg. at 19448)'. Concerning 

flight 8678-22, Empire committed one violation when it failed to 

have accurate information about the location of HAZMAT aboard 

the aircraft readily accessible at MFR (in violation of 

section 175.33(c) (3)). This constitutes one of the ·other 

part 175 violations" not specified in the matrix. Tr. 74-75. 

The sanction range for Group II carriers for ·other part 175 

violations" $5,000 to $15,000 per violation. Tr. 75, C-12 (64 

Fed. Reg. at 19448). Accordingly, the sanction range for all 

Empire's violations in this case is from $25,000 to $125,000. 
33 

The Complainant's request for a $20,000 civil penalty falls 

below the lowest end of the range set forth in the sanction ,. 

matrix. 

A further reduction given the facts of· this case would be 

unreasonable. Agent Stiger testified that the boxes containing 

the Nexium hand sanitizing gel were marked "Consumer Commodity 

ORM-D" on both sides of each box; one such marking was near the 

shipping label. C-1 at 1-2, Tr. 49. The ALJ found Agent 

Stiger's testimony "credible." Initial Decision at· 2. The 

ORM-D marking indicates that the packages contained "consumer 

commodity" HAZMAT and was not authorized for shipment by air. 

Tr. 49, 53. Empire's GOM for HAZMAT provides that Empire 

crewmembers are responsible for compliance with all the 

provisions of the HAZMAT regulations regarding the acceptance of 

HAZMAT. Tr. 98, C-11 at 8. While FedEx may have performed the 

loading of HAZMAT (C-11 at 41), the GOM provides that Empire 

pilots are responsible for supervising the loading of HAZMAT 

aboard aircraft operated by Empire. Tr. 52, 66, 100, C-11 

at 41. The markings on each end of each box were sufficient to 

communicate to an Empire pilot charged with overseeing the 

loading of HAZMAT aboard an aircraft he was to pilot that the 

shipments at issue contained HAZMAT and were not to be 
34 

transported by air. 16 Had Empire exercised reasonable care it, 

at minimum, would have observed the ORM-D markings and inquired 

whether the shipments contained HAZMAT. Given the objective 

indicia of HAZMAT displayed on the shipments which should have 

been spotted by an Empire employee, notwithstanding the absence 

of shipping papers, the ALJ erred in further reducing a civil 

penalty that the Complainant had already calculated based on the 

totality of the circumstances. 

In sum, the Complainant's request for a civil penalty of 

$20,000 for Empire's violations of sections 175.3, 175.30(a) (2), 

175.30(a) (3), and 175.33(c) (3) should not be subject to future 

reduction. 

Conclusion 

The ALJ erred in dismissing the section 175.333(c) (3) 

allegation against Empire. The ALJ also erred in reducing the 

$20,000 civil penalty sought by the Complainant to $12,000. 

We, therefore, request that the Decisionmaker reverse the 

ALJ's dismissal of the section 175.33(C) (3) violation and the 

civil penalty reduction. We request that the Decisionmaker find 

16 The ORM-D marking indicates that the packages contained 

"consumer commodity" HAZMAT and was not authorized f·or shipment 

by air. Tr. 49, 53. To have been authorized for air 

transportation the shipment was required to be marked ORM-D-Air. 

Tr. 49-50. 
35 

that Empire violated section 175.33(c) (3) and assess a civil 

penalty in the amount of $20,000. 

Respectfully submitted, 

Peter J. Lynch 

Assistant Chief Counsel 

By: 

for Enforcement, AGC-30Q 

Tel: (202) 267-8198 

Fax: (202) 267-5106 

Dated: June 22, 2011 
36 

Certificate of Service 

I hereby certify that on this date I have placed in the 

U.S. mail, postage prepaid, certified return-receipt, a copy of 

the Complainant's Appeal Brief in the case of In the Matter of 

Empire Airlines, Inc., FAA Docket No. CP09NM0009, addressed to: 

Glen P. Wicks, Esq. 

Roncervert D. Almond, Esq. 

The wicks Group, PLLC 

1215 17th street, NW 

Sumner Annex, Fourth Floor 

Washington, DC 20036 

In addition, I hereby certify that 'on this date I have 

placed in the U.S. mail, postage prepaid, certified 

return-receipt, the original and two copies of the foregoing 

document to: 

Federal Aviation Administration 

600 Independence Avenue, SW 

Wilbur Wright Building - Suite 2W1000 

Washington; D.C. 20591 

Attn: Appellate Docket Clerk, AGC-430 

Dated: