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JEFFREY M. HARPER 

FAA OFFICE OF REGIONAL COUNSEL 

1601 LiND AVENUE SOUTHWEST 

RENTON, WASHINGTON 98057 

TELEPHONE: (425)227-2161 

FACSIMILE: (425)227-1007 

iVi 

/[/^(V 1 2012 

DOCKET 

UNITED STATES OF AMERICA 

DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

In the Matter of: 

Joseph Moesser 

FAA Case No. 2010NM720001 

DMSNo. FAA-2011-1286 

MOTION TO COMPEL 

Judge Richard C. Goodwin 

To; The Honorable Richard C. Goodwin: 

COMPLAINANT'S MOTION TO COMPEL 

In accordance with 14 C.F.R. § 13.220 (Rule 13.220) and the Federal Rules of Civil Procedure, 

Complainant moves that the Administrative Law Judge (ALJ) issue an Order to Compel 

Respondent to comply with Complainant's discovery request. 

Facts 

Complainant served Respondent with an Initial Discovery Request in these cases on 

February 28, 2012, pursuant to Rule 13.220. The request gave Respondent thirty (30) days to 

respond to the request, setting a due date of March 29, 2012. Respondent served his response 

on March 29, 2012. 

In liis response, Respondent denies Complainant's Request for Admission No. 17, which asked 

Respondent to "[a]dmit that Hodgdon Triple Seven Pellets are designed for use only in newly 

manufactured muzzleloading in-line rifles of 50 caliber, 54 caliber, and 45 caliber." Respondent's 

Response to Initial Discovery Requests (Response), Page 3. Respondent also denies Complainant's 

Complainant's Molioii to Compel 

Joseph Moesser - FAA-2011 -1286 

Page 1 of 4 

JEFFREY M. HARPER, FAA ATTORNEY 

TEL; (425) 227-2! 61; FAX: (425) 227-1007 
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Request for Admission No. 18, wliich asked respondent to "[a]dmit that a shotgun is not a 

muzzleloading rifle of 50, 54, or 45 caliber." 

hiterrogatory No. 9 asked respondent "for any of the requests for admission... that are denied, state with 

specificity the facts that are the basis for that denial as well as the inquiries taken to determine that the 

facts in the request for admission are not coirect." Jn response. Respondent stated "[r]esponses to 

requests for admissions were given after due diligence, based upon infonnation and belief and in good 

faith." 

Argument 

Respondent's discovery responses are incomplete. A party may discover any relevant matter that 

is not privileged. Rule 13.220(e). This includes infonnation relating to the defense of any party. 

Id. As an affirmative defense. Respondent claims he is entitled to the Hazardous Materials 

Regulation exception for small arms ammunition. Answer, Yi I^-l ^^iti 2 (DMS No. FAA-2011-

1286-0006). ThQ definition of small arms ammunition — and whether the material Respondent 

offered qualified under that definition — is a key issue in this case. Answer, Yi II-1 tlirough 3 

(DMS No. FAA-2011-1286-0006); Second Motion for Decision at 7 (DMS No. FAA-2011-

1286-0010); Response to Complainant's Second Motion for Decision at 2-9 (DMS No. FAA2011-1286-0013). Whether the manufacturer approved the product for use in shotgun shells and 

whether a shotgim is a muzzle loading rifle are facts relevant to whether the Triple Seven 

Powder, as offered for transportation by Respondent, constituted small amis ammunition. 

Respondent denies the intended use of Hodgdon Triple Seven pellets, but fails to provide the 

facts and inquiries taken to make that statement, as requested in Inteirogatory No. 9. In fact, the 

warning information provided for Hodgdon Triple Seven pellets states explicitly 'Triple 

Seven... Pel lets are designed for use only in newly manufactured muzzleloading, in-line rifles of 

50 caliber, 54 caliber, and 45 caliber... Triple Seven Pellets are not for use in cartridges." 

Exhibit 1, Page 1 under "Intended Use." 

Likewise, Respondent denies that a shotgun is not a muzzleloading rifle, but provides no facts 

forming the basis for that denial or the inquiries taken to determine the request for admission is 

not correct. Respondent's answer to Interrogatory No. 9 is therefore incomplete. 

Complainant's Motion 10 Compel JEFFREY M. HARPEA, FAA ATTORNEY 

Joseph Moesser ~ FAA-2011 -1286 TEL: (425) 227-2161; FAX: (425) 227-1007 

Page 2 of4 
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Exhibits 

Hodgdon General Warnings. 

Conclusion 

Portions of Respondent's Response to Complainant's Initial Discovery Requests are incomplete. 

Rule 13,220(m) provides that a party may move for an Order to Compel Discoveiy. 

THEREFORE, Complainant requests that the court issue an Order pursuant to Rule 13.220(m) 

that: 

1. Compels Respondent to provide substantive and complete answers to Complainant's 

Interrogatory No. 9 or, in the alternative, admit Requests for Admission Nos. 17 and 18 

within ten (10) days of the Order, and . 

2. Places Respondent on notice of the potential sanctions available under Rule 13.220(n) for 

failing to comply. 

DATED tliis 6th day of April, 2012. 

Jeffrey M. Harper 

FAA Attorney 

Complainant's Motion to Compel 

Joseph Moesser- FAA-2011-1286 

Page 3 of4 

JEFFREY M. HARPER, FAA ATTORNEV 

TEL: (425) 227-2161; FAX: (425) 227-1007 
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CERTIFICATE OF SERVICE 

I hereby certify that the foregoing Complainant's Motion to Compel has been served via 

facsimile and Certified Mail - Return Receipt Requested this date, to the following: 

Honorable Richard C. Goodwin 

Office of Hearings, M-20 

1200 New Jersey Avenue, S.E. 

Washington, D.C. 20590 

FAX: (202) 366-7536 

Attn: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building - Suite 2W1000 

Federal Aviation Administration 

800 Independence Avenue SW 

Washington, DC 20591 

FAX: (202) 493-5020 

Gregory G. Skordas 

Skordas, Caston & Hyde, LLC 

341 South Main Street, Suite 303 

Salt Lake City, UT 84111 

FAX: (801) 531-8885 

Dated this 6th day of April, 2012. 

Moifair Chin 

Office of Regional Counsel (ANM-7) 

Federal Aviation Administration 

1601 LindAve. SW 

Renton, WA 98057 

(425)227-2160 

Complainant's Motion to Compel JEFFREY M. HARPER, FAA ATTORNEY 

Joseph Moesser - FAA-2011 -1286 TEL: (425) 227-2161; FAX: (425) 227-1007 

Page 4 of4 
Warning Page 1 of 4 

HOME PRODUCTS DATA 

GENERA L WARNING S 

D 1 have read and understand ihc warning infomialioii below. 

Get Muzzleloading Data 

DANCKU EXPLOSIVF.i Pelleis are extremely flammable. Failure lo follow warnings and inslruclions for use, or 

misuse ofihis product in any way, may cause personal injury or deal!) lo the user or bystander, as well as damage to the 

llrearm and other properly. Use Pellets only in strict accordance with loading instructions. 

Keep PellcLs out of reach of children. 

Do not lake Pellets internally. 

Do not contaminate Pellets with dirt or moisture. 

Keep Pellets in original, closed box until used. Do not place Pellets loose in clothing. 

Do not smoke when handling Pellets. 

Keep Pellets away from heal, sunlight, open tlanie, sparks from any source, static electricity and moisture. Be sure bo.v 

is closed while shooting. 

Do not subject Pellets to impact or tiiction. 

Store Pellets in original container in a cool, dry place, away from primers, explosives, solvents, gasoline, or other 

sources of ignition. 

Always wear ear and eye protection when handling, loading and firing firearms, and using Pellets. 

Discharging llrearms in poorly ventilated areas, cleaning firearms, or handling mnniunition may.result in exposure to 

lead and other substances known to cause birth defects, reproductive harm, and other serious pliysical injury. Have 

adequate ventilation at all limes. V/ash hands thoroughly al\er exposure. 

Pellets are intended to be used in place of graiiulitr powder. Do not combine Pellets with loose powder. Do not combine 

Pellets of ditTcrcni caliber sizes. 

Never mix powders or use nitrocellulose based smokeless powder in muzzleloading firearms. 

Do not ignite Pellet in hand or outside of firearm. 

Do not break, cut or modify Pellet by any means. 

INTENDED USE 

Triple Seven and Pyrodex Pellets are designed for use only in newly manufactured muzzleloading, in-line rifles of 50 

caliber, 54 caliber, and 45 caliber. Use Triple Seven only in a 209 primer ignition system. Pyrodex may be used with 

standard cap, musket cap or 209 primer ignition systems. Use only the correct caliber Pellet designated for the given 

caliber rifle. Tlicy are designed to be used with sabolcd bullets or conicals together with a fiber wad. Any other use of 

the Pellets is not recommended. Triple Seven Pellets are not for use in cartridges, or with patched round ball. Pyrodex 

Pellets may be used in cartridges. 

Pistol Pellets arc designed and intended for use only in newly manufactured modem replica 44 and 45 caJiber cap and 

ball revolvers. They may also be used in 45 caliber in-line rifies. Any other use of the Pistol Pellet is not recommended. 

MISUSE WARNING 

Use of Triple Seven Pellets and Pyrodex Pelleis in sidelock muzzleloading rifles, in flintlock muzzleloading rifles, 

using a patched round ball, or the use of conical lead bullets without a fiber wad is NOT recommended. Due to 

Exhibit 1 

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Waining Page 2 of 4 

variations in the size and type of flash channels of such rifles, as well as different rificborc diameters, and conical 

bullet sizes, hangfires(a delayed ignition of the Pellet) or an improper gas seal of the projectile may occur. These 

conditions could cause the projectile or a burning Pellet to e.xit the barrel in a hazardous maimer, which could cause 

personal injury or death to the user or bystander, as well as damage to the firearm. 

PROJECTILE WARNING 

Never load and lire a Pellet without a projectile in the barrel, sealed on the Pellet, 'fo do so may cause a burning Pellet 

lo exit the band causing personal injury or properly damage to the user or bystander. 

When loading any projectile, be certain the projectile fits the bore snugly and forms a proper gas seal. Make sure 

projectile is seated all the way down the bore on top of the Pellet. Failure lo do so may result in decreased performance, 

poor accuracy or the possibility of a burning Pellet particle exiting the baiTcl, which may cause personal injury or 

property damage to the user or bystander. 

MAXIMUM LOAD WARNING 

45 and 50 CALIBER RlFLFi: 

45 Caliber Pellets come in one size: 50 grain 

50 Caliber Pellets come in two (2) sizes: 

50 grain volume equivalent which equals 50 grains of loose powder by volume. 

30 grain volume equivalent which equals 30 grains of" loose powder by volume. 

The maximimi load per shot should never exceed total Pellets containing more than 100 grains volume equivalent. That 

means, no more than: 

45 Caliber I) Two (2) 50 grain Pellets 

2) Three (.^) 44/45 caliber 30 grain 

50 Caliber 1) Three (3) 30 grain Pellets, or 

2) Two (2) 50 grain I'ellets, or 

3) One (1) 50 grain Pellet and one (1) 30 grain Pellet 

54 CALIBER RIFLE: 

54 Caliber Pyrodex Pellets come in one siiie only: 

60 grain volume equivalent which equals 60 grains of loose powder by volume. 

'fhe ma.ximum load per shot should never exceed 120 grains (2) Pellets. 

44/45 CALIBER PISTOL: 

The maximum load per each revolver chamber should never exceed one (1) revolver Pellet. Exceeding maximum load 

may cause damage to the firearm and cause personal injury or death lo the shooter or bystanders. 

* At no time should the shooter exceed the firearm manufacturers recommended maximum load. If there is a question 

conccrEiing the firearm maximum load, please contact the firearm manufacturer for guidance. 

RIFLE LOADING INSTRUCTIONS 

CAUTION: Some rifle manufacturers may recommend the useofanumber of Pellets in their rifles which exceed 

Hodgdon's "MAXIMUM LOAD WARNING." Hodgdon speeifically disclaims any and all liability arising out of the 

use of ajiy data which exceeds Hodgdon's "MAXIMUM LOAD WARNING" imd the user assumes all risk in doing so. 

LOAD WARNING 

Failure to load firearm in strict accordance with these instructions may cause personal injury or death to the user or 

bystander, as well as damage to the fireann. 

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Warning Page 3 of 4 

IMPORTANT: 

Each Pyrodex Pellet contains a black ignitor on one end. When loading the Pellet, for best ignition, place the black 

ignitor end of the Pellet into the barrel first. No orientation is necessary for Triple Seven Pellets. 

BEFORE LOADING 

Place gun on safely as per fireann manufacturer's instructions. 

Be certain that iirearm is unloaded and ihat the baiTcl and flash cliannel are clean, dry ajid fi'ce of oil or lubricant. 

Clear flash channel by placing and filing at least two (2) 209, # 11, or nmsket cap primers with gun nuizzle pointed in a • 

safe direction. Be sure no cap foil, or primer dcbri.s plugs the nipple. 

TO LOAD 

Keep firearm on safely. Place muzzle away from body and insert the correct number of Pelleis into the gun muzzle first 

(see maximum load warning). Next, insert sabot/bullet or fiber wad and conical bullet into muzzle and seal firmly on 

lop of I*ellet with rajnrod. WARNING: Do not pound on ramrod or seal projectile with excessive force so as to crush 

Pellet. However, be certain Ihat no airspace exists between Ihe projectile and Pellet. If an air space exists, the projectile 

becomes an obstruction in the barrel, which upon firing the gun, may cause personal injury or death to the user or 

byslajidcr as well as damage to the firearm. 

Place muzzle in a safe direction and insert the correct primer. Aim fireann in safe direction, lemove safety and fire. 

PISTOL LOADING INSTRUCTIONS 

LOADING WARNING 

Failure lo load firearm in strict accordance with these instructions may cause personal injury or death lo the user or 

bystander as well as damage to the firearm. 

BEFORE LOADING 

Follow firearm manufacturer's instructions for making gun safe prior to loading. 

Be certain that revolver is unloaded, that nipples are free of lubricant, clear and that no percussion caps arc on nipples. 

TO LOAD 

Position unloaded revolver with barrel in vertical upright position, preferably in a loading stand. 

Place revolver hammer in half-cock position. 

With nuizzle of revolver barrel away from body, rotate cylinder and align an empty chamber in cylinder with barrel and 

drop one (1) Pyrodex Pistol Pellet down barrel into empty chamber. 

Rotate cylinder to next empty chamber and repeat step 3 until five (5) chambers are loaded. (WARNING) it is 

recommended as a safety precaution Ihat only five (5) chambers be loaded, leaving empty chamber for the hammer to 

rest on when the remaining chambers are loaded. 

With five chambers now loaded with Pellets, rotate cylinder and place a .44 or .45 caliber Ox-Yoke Wonder Wad® (or 

equivalent felt wad) in each chamber, seating each wad with revolver loading lever on top of Pellet. 

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Warning Page 4 of 4 

Next, rotate cylinder and place correct size 44 or 45 caliber pure lead round ball in each chamber, seating each ball with 

loading lever on lop of fell wad. 

WARNfNG: Be certain that no air space exists between the projectile (ball) and Pellet. I fan airspace exists, the 

projectile becomes an obstruction in the chamber, which upon firing the revolver, may cause personal injury or deaih to 

Ihe user or bystander, as well as damage to the fireiirm. 

With revolver barrel pointed iu a safe direction, votutc cylinder -.ind insert proper si'z.e percussion cap on each of the 

nipples of the loaded chambers. Revolver is now ready to be fired. Aim firearm in safe direction, pkice luuntner in fijll 

cock position and fire. 

PROJECTILES FOR USE WITH PELLETS 

Sabots: Due to the higher encrgj', more efficient nature of Triple Seven and Pyrodex Pellets, certain sabots may not 

function properly. To insure shooter satisfaction with Pellets, it is recommended that the following guidelines be 

followed when selecting sabots: 

LIse only one piece sabols; sabots designed in two or three pieces will not survive Triple Seven oi" Pyrode:'v PelleVs. 

For 45 caliber rifles, select a sabot thai will use a 40 caliber bullet. 

For 50 caliber rifles, select a sabot that will use a 45 caliber bullet. 

For 54 caliber rifles, select a sabot that will use a 50 caliber bullet. (Pyrodex Pellets only) 

Failure to follow these recommendations may result in poor accuracy and low customer satisfaction. Sabot failure is 

expected willi any sabot that does not meet our recommendations. A sabot failure is a very evident event. Recovered 

sabots will be fragmented and torn. A sabot Ihat fails will cause the bullet to behave enalically, resulting in sub-par 

accuracy. 

Conic3i bullets with fiber wads: To insure successful pcrtbnmincc of conical bullets in 50 caliber rifles with )*yrode.x 

Pellets, a charge of 100 grains, two (2) 50 grain Pellets and a fiber wad must be used between the Pellets and the base 

of the conical bullet. The fiber wad will provide an adequate gas seal at the base of the conical bullet preventing gas 

from escaping around the conical bullet. Failure to use a fiber wad with a conical bullet may result in excessive leading 

of the bore, poor accuracy, low velocity and/or launching a llaining Pellet downrange, igniting ground cover upon 

impact. (Read warnings). Fiber wads are commercially available from a number of sources; they may be made from 

wool felt or plant fiber materials. These wads are generally lubricated with an <ill natural lube which assists in the 

creation of a gas seal and keeps fouling soft in the bore. 

PELLET BALLISTIC DATA 

Ballistic data shown in this brochure has been developed in our laboratory under strictly controlled conditions. Ballistic 

data can vary considerably depending on many factors including components used, how such components are 

assembled, degree of fouling or leading of the barrel, the typeof fireami used, and the loading techniques and safety 

precauiions utilized by the individual. NEVER mix any two powders regardless of type, brand or source. NEVER 

substitute smokeless powder for Pellets. 

DISCLAIMER 

Hodgdon specifically disclaims imy warranties with respect lo any and all products sold or distributed by it, ihc safety 

or suitability thereof, or ihe results obtained, whether express or implied, including without limilation, any implied 

wajranty of merchantability of fitness lor a particular purpose and/or any other warranty. Buyers and users assume all 

risk, responsibility and liability whatsoever for any and all injuries (including death, losses, or damages to persons or 

property), including consequential damages arising from the use of any product or data, whether or not occasioned by 

seller's negligence or based on strict product liability or principles of indemnity or contribution. Hodgdon neither 

assumes nor authorizes any person to assume for it any liability in connecllon with the use ofany product or data. 

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