OB/11/2012 12:54 FAX 2024835142 

June 8, 2012 

FAA 

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ATTORNEY GENERAL OF TEXAS 

GREG ABBOTT 

Federal Aviation Administration 

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Attn: Hearing Docket Clerk, AGC-430 

600 Independence Ave, SW 

Wilbur Wright Bldg, Ste 2W1000 

Washington DC 20591 

RECEIVED 

Via FedEx Overnight 798488991007 

. Re: FAA Docket No. CP09S00014 

DMS No. FAA-2009-1045 

FAA Case No. 200880700389 

Dear Sir/Madam: 

JUH 1 i 2012 

HEARING DOCK·ET 

Enclosed please find for filing in the above referenced case, the original and two (2) copies 

of the Respondent Texas Army National Guard's Petition To Reconsider Or Modify 

Final Decision And Order. 

Please file-mark the additional copy provided and return to me in the enclosed 

self-addressed, stamped envelope. Thank you for your courtesy in this matter. 

V ccy truly yours, 

Cecilia 

~~ Hertel 

Legal Secretary to MICHAEL C. CROWLEY, AAG 

ADMINISTRATIVE LAW DIVISION 

Ph: (512) 475-4215 

Pax: (512) 457-4629 

E-mail:. ceci 1 ia.hertel@texasattorncygeneral.gov 

Enclosure 

(;C: Gerald A. Ellis, Esq. 

Honorable Richard C, Goodwin 

Via Fax (404) 305-5223 

Via Fax: (202) 366-7536 

POST OFFICE Box 12548, AUSTIN, TEXAS 78711-2548 TEL: (512)463-21 00 

WEB: WWW.OAG.STATE.TX.US 
OS/11/2012 12:54 FAX 2024835142 FAA + OMS 

lJ.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, DC 

@ 002/007 

ORIGINAL 

-~----~RECEIVED FAA DOCKET NO. CP09S00014 

DMS NO. FAA-2009-1045 JUN 1 r 2012 

FAA CASE NO. 200880700389 

___________ t-_.IE_ARiNG DOCKET 

FEDERAL AVIATION ADMINISTRATION. 

Complainmzt, 

v. 

TEXAS ARMY NATIONAL GUARD, 

Respondent. 

RESPONDENT TEXAS ARMY NATIONAL GUARD'S PETITION TO 

RECONSIDER OR MODIFY FINAL DECISION AND ORDER 

TO THE HONORABLE ADMINISTRATOR; 

NOW COMES Respondent Texas Army National Guard (''the Guard'' or 

"Respondent"), by and through Greg Abbott, Attorney General ofTexas, and the undersigned 

Assistant Attorney General, and, pursuant to 14'C.F.R. § l3.234(a), tiles this Petition to 

Reconsider or ModifY a Final Decision with the Administrator of the Federal J\viation 

Agency ("FAA"). This Petition to Reconsider is directed to the Decision and Order of the 

Administrator, served May 22, 2012, affim1ing the initial decision of the AdministrCltive 

Law Judge (ALJ), dated May 20,2011. In support oflhis Petition to Reconsider, Rt:spondent 

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respectfully shows: 

I. SUMMARY 

· Respondent requests the Administrator to reconsider the method of determining the 

civil penalty in this case, and to reduce the amount of that penalty. 

II. FACTUALBACKGROUND 

The Guard does not dispute the facts as set out ln the Administrator's Decision and 

Order. 

III. PROCEDURAL BACKGROUND 

The Guard does not dispute the procedural history of this case, described in the 

Administrator's Decision and Order. 

IV. DETERMINATION OF CIVIL PENALTY 

Respondent has been found to be in violation the Hazardous Materials Transportation 

statute, 49 USC, subtitle Ill, § 5123, and 49 CFR parts 171-185 (''Hazardous Materials 

Regulations" or "HMR"). The most material and appropriate standard by which to calculate 

the penalty for violation of the HMR is found in the HMR, at 49 CFR Part I 07, Appendix 

A (Guidelines for Civil Penalties). Respondent respectfully requests the Administrator to 

apply the Appendix ---a part of the CFR-rather than FAA Order 2150.30-···a staff 

manual- to recalculate and reduce the penalty levied against Respondent. 

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Since the contested case hearing of this matter, Respondent has requested that the 

Appendix be used to determine the civil penalty: although the ALJ ultimately did apply [he 

FAA Order, he noted that the "guidelines contained in FAA Order 2150.3ll'' were not 

binding, and that he was "not required to follow these guidelines." Initial Decision of 

Administrative Law Judge at 2-3. FAA Order 2150.3B is a "staff manual" promulgated 

pursuant to 14 CFRparts 1-199. Order at ch. l (2)(b); ch. 2 (2)(a). The Appendix has been 

recognized by transportation Jaw experts as appropriate for cases concerning air transport of 

dangerous goods. See, e.,;., Mitigating Civil Penalties Issued by the FAA for Hazmat 

Violations, Peter A. Quinter, Becker & PoliakoffLaw Firm, Dangerous Goods Symposium, 

November 8-9, 2006. While such recognition is nol biding on this tribunal, it indicates the 

Appendix is authority that my properly be considered. 

Both the HMR and Appendix A y.,rcrc promulgated by the Pipeline and Hazardous 

Materials Administration under the authority of 49 USC § 5123. The FAA acted against 

Respondent under this section, even though 49 USC subtitle VII ("Aviation Programs,') 

contains statutory authority--49 USC 46312-by which the FAA regulates the unlawful 

transport of hazardous materials. The FAA has not alleged that Respondent violated this 

latter section, or the regulatory standards (14 CFR parts 1-199) issued thereunder. 

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08/11/2012 12:54 FAX 20249351(2 FAA + OMS @ 005/007 

All of the allegations against the Respondent are based on the Hazardous Materials 

Regulations. The Administrator has discretion to employ the guidelines of the Appendix to 

I 

these regulations. For example, the FAA's organic regulations pertaining to hazardous 

materials violations permit such consideration: ''An order assessing a civil penalty for a 

vjolation of[Hazardous Materials law] ... is issued only atler ... [consideration ofj ... (3) 

Ls]uch other matters as justice may require." 14 CFR § 13.16(c). And the Order 2150.3R also 

permits the FAA to consider "other matters as justice requires.'' See, Order 2150.38 at ch. 

18 ( e)(3). 

Respondent does not contest the authority of the FAA to enforce subtitle III and the 

HMR, because such authority clearly exists. But the HMR Guidelines for Civil Penalties 

(The Appendix) arc the only standards of a regulatory nature (as opposed to a staff manual) 

that apply to this case. Because Appendix A applies only to the Hazardous Materials 

Rt:gulations~ is more criteria specific than the FAA Order, and allows for a more certain 

penalty calculation than the Order, Respondent n:quests that the guidclim:s be applied to 

calculate the civil penalty in this case, and that the penalty be reduced on this basis. 

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VI. CONCLUSION. 

Violations of the HMR warrant determination of a penalty in accord with the 

Appendix to the HRM, and reduction of the penalty of$30,000.00. Respondent respectfully 

requests the Administrator to reduce the penalty accordingly. 

Respectfully submitted, 

GREG ABBOTT 

Attorney General of Texas 

DANIEL T. HODGE 

First Assistant Attorney General 

DAVID C. MATT AX 

Deputy Attorney General for Defense Litigation 

DAVIDA. TALBOT, JR. 

C?:i t~ Admin~sltative ~.nw_~ivision . ..---· 1 I· ... / //( /. ·/_./ . //l-··((/-.-fr -········ .. -·· · · · {.. /.[:-y.7 f....- ... 

~ !,' ••• ,.· .•• ..·._:_ 

AvtTCHAEL C. CROWLEY 

. State Bar No. 05170300 · 

Assistant Attorney General /· · 

OFFICE OF THE TEXAS ATTORNEY GF.:N8RAL 

ADMINISTRATIVE LAW DIVISION (MC-018) 

P. 0. Box 12548 

Austin TX 78711-2548 

Ph: (512) 475-4208 

Fax: (512) 457-4629 

Email: michael.crowley@tcxa.sauomeygeneral.gov 

Attorneys for Respondent Texas Army National 

Guard 

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CERTIFICATE OF SERVICE 

I hereby certiJy that a true and correct copy of the above and forgoing Respondent's 

Petition To Reconsider Or Modify Final Decision and Order has been sent via facsimile 

on this the 8f11 day of June 2012, to the following counsel of record: 

Gerald A. Ellis, Attorney 

U.S. DEP'T OF TRANSPORTATION 

OFFICE Of THE REGIONAL COUNSEL, SOUTHERN REGJON 

f"EDERAL AVJATION ADMrNJSTRA TION 

P.O. Box 20636 

Atlanta GA 30320 

Ph: (404) 305-5200 

Via Facsimile (404) 305-5223 

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MICHAEL C. CROWf J~Y 

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i 

A.'isistant Attorney General 

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