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O O 
U.S. DEPARTMENT OF TRANSPORTATIO 

FEDERAL AVIATION ADMINISTRATION 

HAZARDOUS KMTERIALS 

AGENT STATEMENT: Donald A. STIGER, Special Agent (SA) , Federal 

Aviation Administration, Portland Hazardous Materials Inspection 

Detachment, 73 03 N.E. Alderwood Road, Portland, Oregon 97218, telephone 

(503) 258-6995. 

Specifically, on August 22, 2007, during the course of a hazardous 

materials ramp inspection of Empire Airlines, Inc., (COEA) aircraft 

N-940FE (Flight # 8677-22) at Rogue Valley International Airport 

(MFR), 3600 Terminal Road, Medford, Oregon 97504, me and Federal 

Aviation Administration (FAA) Special Agent Thomas KENNY observed 

two packages (fiberboard boxes), being unloaded from an aircraft, 

[FEDERAL EXPRESS, INC., (FDEA) Tracking Numbers 7317 0353 0530 and 

7317 0353 0562] marked "CONSUMER COMMODITY ORM-D" on both sides of 

each respective package without corresponding hazardous materials 

shipping papers or with proper package markings. I confirmed with 

the pilot-in-coram;and of COEA aircraft N-940FE that he had no 

hazardous materials shipping papers or pilot notification of 

hazardous materials onboard for his flight from Portland, Oregon, 

to Medford, Oregon. Upon Further investigation of the two 

packages, I confirmed that the contents inside each package were as 

follows: 

Inner containers: Plastic bottle 

Capacity of each inner container: 354 ml 

Number of bottles in each fiberboard box: 24 plastic bottles 

Bottle markings: Neixum Hand Sanitizing Gel 

Active ingredient: 62% Ethyl alcohol 

I also noted that the screw-type cap on each Neixum Hand Sanitizing 

Gel bottle was not securely held with a positive means of control. 

Shipping labels on each respective package identified the shipper 

as Astrazeneca Pharmaceuticals LP (Astrazeneca), 1501, Perryman 

Road, Aberdeen, Maryland 21001 and the consignees as Carl CASEBEER, 

8525 Third Street, Jacksonville, Oregon 97530. FDEA shipping 

labels indicated that the level of service for the two shipments 

were for "Priority Overnight" transportation. I also noted that 

one package had a label that indicated the following: 

Package with FDEA Tracking Number: 7317 0353 0562 

Order #: 210125101694 

Case ID: 1732122 

Carton Group: Full Case Pick 

Carton Type: FULLCASE 

Item # 24 9664 Qty 24 Each 

Wave Id: 9003 priority 

terviewed/Reviewod On At 

By File No. 2007NM700156 

(Public availability to be \ 

ttermlned under 5 U.S.C. 552) > 

FAA Form 1600-32-1 (9^) FOR OFFICIAL USE'ONLY , \ ^ 

determined under 5 U,S.C. 552) 
U.S. DEPARTMENT OF TRANSPORTATK 

FEDERAL AVIATION ADMINISTRATION 

HAZARDOUS MATERIALS 

The other package had a label that indicated the following: 

Package with FDEA Tracking Number: 7317 0353 0530 

Order #: 210125101694 

Case ID: 1732121 

Carton Group: Full Case Pick 

Carton Type: FULLCASE 

Item # 249664 Qty 24 Each 

Wave Id: 9003 priority 

A Photocopy of the FDEA Inbound Dangerous Goods Alert for COEA 

flight 8677-22 was taken on August 22, 2007. Photographs were also 

taken of both shipments on August 22, 2007. 

On August 24, 2007, I downloaded FDEA tracking reports from FDEA's 

Internet website (http://www.fedex.com/Tracking) for both shipments 

identified by tracking numbers 7317 0353 0530 and 7317 0353 0562. 

The tracking information indicated that both packages flew from 

Baltimore, Maryland, to Medford, Oregon, via Memphis, Tennessee, 

and Portland, Oregon, respectively. 

I also contacted CASEBEER, at 541-899-9061, and confirmed that he, 

as an Astrazeneca employee (Salesman), had ordered both shipments 

of the Neixum Hand Sanitizing Gel via Astrazeneca's Intranet. 

On August 27, 2007, I received a Material Safety Data Sheet (MSDS) 

from The Royal House Corporation, 13121 SW 122 Avenue, Miami, 

Florida 33186 for the Hand Sanitizing Gel. I also had a phone 

conversation at 305-255-2242 with Mark OSETE, Operations Manager, 

Royal House Corporation, and confirmed that the packages marked 

ORM-D and containing the bottles of Hand Sanitizing Gel are not 

packaged for air transportation. 

On September 6, 2007, I received from FAA Special Agent Ronald 

GRIEFF^ Dulles, Virginia, product order information sheets (Product 

order 210125101694) and FDEA Express Service Compliance Report 

dated August 30, 2007, utilized by Astrazeneca's shipping agent 

Archway Marketing Services, 1501 Perryman Road, Suite 100, 

Aberdeen, Maryland 21001. The additional information from GRIEFF 

indicated that the two shipments level of air service was upgraded 

from FDEA "Standard Overnight" to FDEA "Priority Overnight". 

^erviewed/Reviewed On September 6. 2007 , At Portland. Oregon 

By Special Agent Donald A. Stiger fXl H AAjy^" ^ , FiieNo. 2007NM700156 ^-- ^ 

FAA Form 1600-32-1 (M6) I / FOR OFFICIAL USE ONLY 

y / (PuW/c availability to be / ' ^ 

\ y determined under 5 U.S.C. 5S2) h-. 
Shipments 

ad Results 

(Y) Quick Help 

Tracking nunnber 731703530562 Reference 

Signed for by Signature release on file Destination 

Ship date Aug 21, 2007 Delivered to 

Delivery date Aug 22, 2007 11:05 AM Service type 

Weigtit 

Status Delivered 

Signature image No 

available 

DafeTTime Activity 

Aug 22, 2007 11:05 AM Delivered 

9:11 AM On FedEx vehicle for 

delivery 

8:51 AM At local FedEx facility 

5.45 AM At dest sort facility 

Location 

Jacksonville, 

OR 

MEDFORD, 

OR 

MEDFORD, 

OR 

PORTLAND, 

Details 

1732122 

Jacksonville, OR 

Residence 

Priority Overnight 

18.0 lbs. 

Left at garage. Package delivere 

recipient address - release auth( 

• 

3:50 AM Departed FedEx 

location 

12:32 AM Arrived at FedEx 

location 

Aug 21, 2007 7:43 PM Left origin 

• 3:40 PM Picked up 

12:32 PM Package data 

transmitted to FedEx 

OR 

MEMPHIS, TN 

MEMPHIS, TN 

BALTIMORE, 

MD 

BALTIMORE, 

MD 

Subscribe to tracking updates (optional) 

Your Name: I 

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r 

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JEngiish 

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Not available for Wireless or 

non-English characters. 

By selecting this check box and the Submit button, I agree to these Terms and 

Conditions 

Iji^JM^fniLJ 

a/ 

^ ^ 

\ ( 
• "• 

Express 

i » 

FedEx Express 

Customer Support Trace 

3875 Airways Boulevard 

Module H, 4th Floor 

Memphis, TN 38116 

U.S. Mail: PO Box 727 

Memphis, TN 38194-4643 

Telephone: 901-369-3600 

August 24,2007 

Dear Customer: 

The following is the proof of delivery you requested with the tracking number 731703530562. 

Delivery information: 

Status: 

Signed for by: 

Service type: 

Delivered 

Signature release on file 

Priority Overnight 

Delivery location: 

Delivery date: 

Jacksonville, OR 

Aug 22, 2007 11:05 

NO SIGNATURE IS AVAILJ^BLE 

FedEx Express Proof of delivery details appear below, however no signature is currently available for this FedEx 

Express shipment. Availability of signature images may take up to 5 days after delivery date. 

Shipping Infomnation: 

Tracking number 

Recipient: 

Jacksonville, OR US 

Reference 

731703530562 Ship date: 

Weight: 

Shipper: 

BALTIMORE, 

1732122 

I\/1DUS 

Aug 21, 2007 

18.0 lbs. 

Thank you for choosing FedEx Express. 

FedEx Worldwide Customer Service 

I.SOO.GoFedEx 1.800.463.3339 

c 

^v 

f Z'Z-
Tradk Shipments 

f' Detailed Results 

(7) Quick Help 

Tracking number 

Signed for by 

Ship date 

Delivery date 

731703530530 Reference 

Signature release on file Destination 

Aug 21, 2007 Delivered to 

Aug 22, 2007 11:05 AM Service type 

Weight 

1732121 

Jacksonville, OR 

Residence 

Priority Overnight 

20.0 lbs. 

Status Delivered 

Signature image No 

available 

Date/Time Activity 

Aug 22, 2007 11:05 AM Delivered 

9:11 AM On FedEx vehicle for 

delivery 

8:51 AM At local FedEx facility 

,5:45 AM At dest sort facility 

Location 

Jacksonville 

OR 

MEDFORD, 

OR 

MEDFORD, 

OR 

PORTLAND 

3:50 AM Departed FedEx 

location 

12:32 AM Arrived at FedEx 

location 

Aug 21, 2007 7:43 PM Left origin 

3:40 PM Picked up 

12:32 PM Package data 

transmitted to FedEx 

OR 

MEMPHIS, TN 

MEMPHIS, TN 

BALTIMORE, 

MD 

BALTIMORE, 

MD 

Details 

Left at garage. Package delivered to 

recipient address - release authorized 

^^KM^^^iMiWIi^^^^^jMI^S^ 

Subscribe to tracking updates (optional) 

Your Name: j 

E-mail address 

r 

r 

Language 

j English 

I English 

I English 

i I English 

Your E-mail Address: [ 

Select format: ^ HTML C Text C> Wireless 

Add personal message: f 

Not available for Wireless or 

non-English characters. 

-1 

Exception 

updates 

11 

m 

PI 

m 

I 

Delivery 

updates 

n 

n 

n 

n 

•-- By selecting this check box and the Submit button, 1 agree to these Terms and 

' Conditions l^jjbrnttyl 

2 - 7 
• 4 

Evpress 

•S" 

FedEx Express 

Customer Support Trace 

3875 Airways Boulevard 

Module H, 4th Floor 

Memphis, TN 38116 

U.S. Mail: PO Box 727 

Mempl^is, TN 38194-4643 

Telephone: 901-369-3600 

August 24,2007 

Dear Customer: 

The following is the proof of delivery you requested with the tracking number 731703530530. 

Delivery Information: 

Status: 

Signed for by: 

Service type: 

Delivered 

Signature release on file 

Priority Overnight 

Delivery location: 

Delivery date: 

Jacksonville, OR 

Aug 22, 2007 11:05 

NO SIGNATURE IS AVAILABLE 

FedEx Express Proof of delivery details appear below, however no signature is currently available for this FedEx 

Express shipment. Availability of signature Images may take up to 5 days after delivery date. 

Shipping Information: 

Tracking number 

Recipient: 

Jacksonville, OR US 

731703530530 Ship date: 

Weight: 

Shipper: 

BALTIMORE, MD US 

• 

Aug 21,2007 

20.0 lbs. 

Reference 1732121 

Thank you for choosing FedEx Express. 

FedEx Worldwide Customer Service 

I.SOO.GoFedEx 1.800.463.3339 

2-V 
U.S. DEPARTMENT OF TRANSPORTATIO 

FEDERAL AVIATION ADMINISTRATION 

HAZARDOUS MATERIALS 

PHOTOGRAPH 3-1 

Photograph depicting the shipments identified by FEDERAL EXPRESS, INC., 

tracking numbers 7317 0353 0530 and 7317 0353 0562; examined at Rogue 

Valley International Airport (MFR), 3600 Terminal Road, Medford, Oregon 

97504, on August 22, 2007, 

/? 

n. i. 

Interviewed/Reviewed On AugUSt 22 . 200 7 At Portland. Oregon 

By Special A.gent Donald A. Stiger File No. 20Q7NM700156 

.0-' 

^Ta> \ p 

FAA Form 1600-32-1 (o-86) FOR OFFICIAL USE ONLY 

(Public availability to be 

determined under 5 l/.S.C. 552) 
U.S. DEPARTMENT OF TRANSPORTATIO. 

FEDERAL AVIATION ADMINISTRATION 

HAZARDOUS MATERIALS 

PHOTOGRAPH 3-2 

Photograph depicting the shipments identified by FEDERAL EXPRESS, INC., 

tracking numbers 7317 0353 0530 and 7317 0353 0562; examined at Rogue 

Valley International Airport (MFR), 3600 Terminal Road, Medford, Oregon 

97504, on August 22, 2007. 

Interviewed/Reviewed On AugUSt 22 . 200 7 

By Special Agent Donald A. S tiger 

At Portland. Oregon (V 

, File No. 2Q07NM700156 

FAA Form 1600-32-1 (o-sa) FOR OFFICIAL USE ONLY 

(Public availability to be 

determined under iU.S.C. SS2) 
U.S. DEPARTMENT OF TRANSPORTATI*^ 

FEDERAL AVIATION ADMINISTRATION 

HAZARDOUS MATERIALS 

PHOTOGRAPH 3-3 

••"•^«. J^"i>-

Photograph depicting the shipments identified by FEDERAL EXPRESS, INC., 

tracking numbers 7317 0353 0530 and 7317 0353 0562; examined at Rogue 

Valley International Airport (MFR), 3600 Terminal Road, Medford, Oregon 

97504, on August 22, 2007. 

J K^ 

Interviewed/Reviewed On Augt^St 22, 2007 

By Special Agent Donald A. Stiger 

FAA Form 1600-32-1 o-se) 

At Portland. Oregon 

File No. 2007NM700156 

FOR OFFICIAL USE ONLY 

(Public availability to be 

determined under S U.S.C. SS2) 
Sep 06 2007 12:31 !^Rn UDCSECFO 703BG10113 

F' ^al Bxpress Servic e Coinpll«nce Report Page 1 

Rv,, , t Pun Date ; 0B/3D/2007 

Repoc t Run rime ; 10:23 

Trackin g » POD cit y ecat e signatur e Date Time Servic e 

73170353D530 V J«clc«onvill e OR Signatur e relea s 08/22/2007 11:0 5 Express - Priorit y Overnight 

731)03530562 y Jocksonvill e OR Signatur e rel«a i 08/22/2007 lliO S BKpreas - Priorit y Overnight 

TOTAL PACKRGES TIUCREP : 2 

FACKAGBS WITH AN BXCBFTION ! 2 

PACKAGES NOT SCAHHGO ; 0 
Sep OG 2007 12:31 FRH UDCSECFO 703GB10I13 p.5 

Astrazeneca 

^dlD : 2IOI2510)6!><1 

Case ID: 

17.J2122 

Ship Method: 

FEDEX STANDARD OVER-NIGHT 

Skip To; Carl A Casebeet 

Addrv.«: 852 S Third Si 

Order*: 210125101694 

Cusrnncc Ortlcr tt i 

SCAC : f-soFuinilmEDt; AstraZcBcca 

OrJarDate: O8/JO/2O07 

Prii>rJty; 

Order*: 21012S1DI694 

COM ID : I7J2122 

Carton Groiip: Full Cme Pick 

Csrton Type :FULLCASE 

llflm #24966< Qty 24 Each 

Wuvelcl: 9003 priority 

Clt>', Slate, 2t|»: Jacksonville, OR 97530 

PJivdc * : 

PRA# 

5418999061 

Item Nnmc Qty/UOM UOM Qty Pick Area Plcli Location 

249664 Nexiiuii Anlibaclciial Gel BolUe w/New L.abeltng 24 CS 1 CASE QPl 

Page 1 of I 

Qunntity ordered ni»y be reduced based on inventory nvailabilify 

THJU«)K YOU FOR YOUR ORDCR FROM ASTRAZENECA 

^'1 
Sep OG 2007 12:31 FHR UDCSECFO 703GG10113 p. G 

Astrazeneca 

id ID: 210125101694 

Ciiilc ID : 

1732121 

Slii[> IVtclliod: 

FEDEX STANDARD OVER-NIGHT 

Slii|iTo: Carl A Coscbcer 

Addrcs.?! 832 S Third SI 

Order*: 2I0J25101694 

iiBifliuiiiiiaiffiiimineui 

Ciistanicr Order # : 

SCAC: r-SOFuiflllniCfll: 

Order DDtc; 

Priority : 

Order # 

Cose ID 

Astr;lZenccti 

08/30/2007 

2I0125101694 

1732121 

ii 

Carton Group; Full Cpte Pick 

Carton Typo O^ULLCASE 

Item n Z49664 Qty 24 Each 

Wttvc Id: 9003 priority 

City,State,Zip: JneksonvtHe, OR 97530 

Plione It i 

PRA# 

5418999061 

Item Nami> Qty/UOM UOM Qty PlchArea Pick Location 

249664 Nexiunt AnlibQCterini Gel Bottle w/Ne\v Labeling 24 CS CASE QPl 

a 

< ^ 

Paj>e I o( I 

Quantity ordered may be reduced based on inventory avaflAbility 

THANIC YOU FOR YOUR ORDER PROiVl ASTRAZENECA 

i^b 

4/ 

r-I 
Date: 

Supercedes: 

15 October 2001 

11 October 2000 

MATERIAL SAFETY DATASHEET 

PRODUCT IDENTIFICATION AND COMPANY IDENTIFICATION: 

Product Name: Antibacterial Hand Gel 

Company Name & Address: "^•^f j^°y^i,"?"^® Corporation 

•^ 13121 S.W. 122Avenue 

Miami, Florida 33186-6231 ~ U.S.A. 

Phone Number: 

i\^SDS Request Phone: 

(305)255-2242 

(305)255-2242 

INFORMATION ON INGREDIENTS: 

HAZARDOUS INGREDIENTS 

Ethyl Alcohol 

CAS NUMBER 

64-17-5 

OSHAPEL 

1000 ppm 

ACGIH TLV 

1000 ppm 

% RANGE 

62 

Other ingredient(s) with notification requirements: 

Ethyl Alcohol 

CAS NUMBER 

64-17-5 

List 

MA1;NJ1S;PA1;CN2 

3. HAZARDS IDENTIFICATION: 

EMERGENCY OVERVIEW 

When used according to instructions, the product applicable to this MSDS is safe and presents no 

immediate or long-term health hazard. However, abnormal entry routes, such as gross ingestion, may 

require Immediate medical attention^ 

Potential Healtli Effects: 

HMIS: 

Eye Contact: 

Skin Contact: 

inhalation: 

Ingestion: 

Carcinogenicity: 

FIRST AID MEASURES: 

Health 1 Flammability 3 Reactivity 0 Personal Protection None 

May cause eye invitation. 

No initation or reaction expected. 

Not applicable. 

May cause upset stomach, nausea (Abnormal entry route). 

Not listed as a carcinogen by NTP, lARC, OSHAor ACGIH. 

Eye Contact: 

SIdn Contact: 

Inhalation: 

Ingestion: 

Do not rub eyes. Flush eyes thoroughly with water for 15 minutes. If condition 

worsens or irritation persists, contact physician. 

Not applicable. 

Not applicable. 

Do not induce vomiting. Contact a physician or Poison Control Center. 
ANTIBACTERIAL HAND GEL Page 2 of 2 

5. FIRE FIGHTING MEASURES: 

NFPA: Health 0 Fire 3 Reactivity 0 

Flashpoint °F/°C (PMCC method): 74^/23 ^ 

Unusual Fire and Explosion Hazards: Product is flammable due to alcohol content. 

Special Fire Fighting Procedures: None l^nown. 

Extinguishing Media: X Water Fog X Alcohol Foam X CO2 X Dry Chemical Other 

6. ACCIDENTAL RELEASE MEASURES: 

Avoid contact with ignition sources since product is flammable. Absorb onto inert material and dispose in 

appropriate manner. Water clean up and rinse. CAUTION - WILL CAUSE SLIPPERY SURFACES. 

7. HANDLING fiUO STORAGE: 

Keep away from fire or flame. Store at normal room temperature away from reach of small children. Keep 

containers sealed. Use older containers first. Avoid freezing conditions. 

8. EXPOSURE CONTROLS/PERSONAL PROTECTION: 

Eye Protection: None required under normal conditions. 

Skin Protection: None required under normal conditions. 

Respiratory Protection: None required under normal conditions. 

Ventilation: None required under normal conditions. 

Protective Equipment or Clothing: None required under normal conditions. 

9. PHYSICAL AND CHEMICAL PROPERTIES: 

Appearance and Odor Clear liquid, citrus fragrance 

pH (undiluted): 7.0 - 8.35 

VOC,% : 65 

10. STABILITY AND REACTIVITY: 

Stabte/Non reactive product. Avoid ignition sources. 

11. TOXICOLOGICAL INFORMATION: 

No acute or chronic toxic effects expected when used according to directions. 

12. ECOLOGICAL CONSIDERATIONS: 

No ecological or special considerations when used according to directions. Not considered environmentally 

harmful from normal dilution, expected usage and typical drainage to sewers, septic systems and treatment 

plants. 

13. DISPOSAL CONSIDERATIONS: 

Characteristic hazardous waste-flammable liquid. Dispose according to local, state and Federal regulations. 

14. TRANSPORT INFORMATION: 

Hazardous by transport regulations. When transported by Ground and Rail, this product typically is shipped as 

Consumer Commodity ORM-D. When transported by air, this product is typically shipped as Consumer 

Commodity or Alcohols N.O.S. depending on package size. When transported by ocean, this product is 

typically shipped as Limited Quantities. Refer to cunrent regulations for exact requirements. 

15. REGULATORY AND OTHER INFORMATION: 

Complies with current FDA regulations for cosmetic and/or over-the-counter drug products. 

Notice: Ttie information tierein is based on data considered to be accurate as of the date of preparation of this material safety data 

sheet. However, no wan^anty or representation, expressed or implied, is made as to the accuracy or completeness of the foregoing data 

and safety infomiation. The user assumes all liability for any damage or injury resulting from abnomnal use, from any failure to adhere to 

recommended practices or from any hazards inherent in the nature of the product. 
t l 

© 

( u s Department W :. W Sevemn Streel. S.W. 

of Transportation ' ' ^ >i • vyashmgion. D.C 20590 

Researchand | ,/'; :^. .,- j,; . .rkj'.!:^;.. & - -f 

Special Programs;' 'f' i^J , .,.-^«#, •4/'^.; •'^•' %. - 'L., , 

Adtttlr^istratlon i t v f : 

T, Mr. Sainuel S. EIkind| ,„^.« ^ # 

U Air operations | 'SE*^^* ' ' . *5'^ | 

:i XJnitedParcelServtce'^^^^'--v-;^^. :..^^ " "" 

i It Airlines 

W 5 1998 

8203 National Turnpike 

jti Louisville,KY 40213 

DearMr. Elkind: 

This is in response to your letter requesting clarification of the package marking statement in 

;.: 49 CFR 175,30(e)(3), "inside packages comply with prescribed specifications." Specifically, you 

fi asked for guidance as to what reasonable steps an aircraft operator must take to establish that a 

!»•• shipment conforms to the requirements of 49 CFR parts 172 and 173. 

In the case of a DOT-39 specification cylinder, § 173.301(k) requires that a cylinder must be 

ilirther contained within a strong outsi.de packaging. Furthermore, the outside packaging required 

under § 173.301(k) is not an "overpack" as defined in § 171.8 and applied in § 173.25. Section 

175.30(e) refers only to overpacks, it does not apply to individual packages that ar^properly 

prepared for shipment. There is no requirement in the Hazardous Materials Regulations (HMR) 

to mark the strong outside packaging required by §173.301(k) with the statement "inside 

packages comply with prescribed specifications." However, we plan to propose that the strong 

outside packaging conform to the requirements of § 173.25 in a future actioti. 

In its acceptance of a shipment of hazardous materials, no carrier may simply rely on the shipper's 

certification as a basis for its determination that a package conforms to the requirements of the 

HMR when there are obvious discrepancies. Section 175.30 requires, in part, that an air carrier 

verify that a. hazardous material is authprized for transportation aboard aircraft and the quantity of 

material in diie package when offeredTor trah^drtSion aboard a passenger-canjdng or cargoonly aircraft is within the limitations prescribed by § 172.101.. For overpacks, a carrier has an 

obligation to verify the presence of the-inside containers comply statetnent within a reasonable 

limit Section 175.3 states that a hazardbtis material not prepared for shipment in accordance 

with Subchapter C, including part 173, of the HMR may not be accepted for transportation or 

transported aboard an aircraft. Therefore, \^athin recognizable limitations and reasonable 

discretion, a carrier mus$ be able to recognize discrepancies of packaging, shipping papers, 

labeling, and placarding. 

I hope this information is helpful. If we can be of fiirther assistance, please contact us. 

Sincerd^^ 

^ ^ Q { Hattie L. Mitchell 

} "7 t> ' ^' Chief, Regulatory Review and Reinvention^^. . , 

_ ^ ^ -. ^-, Office of Hazardoiis Materials Standards ^^^/-i'* 

-»- / 
Q 

U.S. Departmen t Northwest Mountain Region SECURITY 6 HAZARDOUS /MATERIALS 

DIVISION 

of Transportatio n Colorado, Idaho, Atontana, Oregon Portland, Oregon, Office 

Utah, Washington, Wyoming a Alaska 7303 N.E. Alderwood Road 

Federa l Aviatio n Portland, Oregon 97218 

Administratio n Fax: (503)258-6999 

m 27 2007 

Mr. David LittleJohn 

Technical Advisor 

Federal Express, Inc. 

Delivery Code 7622, Building G, 2"** Floor 

3 670 Hacks Cross Road 

Memphis, TN 38125-8800 

Dear Mr. LittleJohn: 

Letter of Investigation 

File Number: 2007NM700155 

The United States Department of Transportation (USDOT)/Federal Aviation 

Administration (FAA) is conducting an investigation concerning the 

apparent failure of Federal Express, Inc. (FDEA), to comply with the 

following provisions of Title 49, Code of Federal Regulations (49 CFR): 

Section 175.3 - Accepting a hazardous materials shipment for 

transportation not prepared in accordance with Subchapter C of the 

hazardous materials regulations. 

Section 175.30(a)(2) - Accepting a hazardous material aboard an 

aircraft without a shipping paper prepared in accordance with 

Subpart C of Part 172. 

Section 175.30(a)(3) - Accepting a hazardous material aboard an 

aircraft not properly marked in accordance with Subpart D of Part 

172. 

Section 175.33(a) - Failing to have accurate and complete 

information contained in the written pilot-in-command notification. 

Specifically, on August 21, 2007, during the course of Hazardous Materials 

Ramp Inspections at the Medford, Oregon, FDEA facility, FAA Hazardous 

Materials Inspectors discovered, during loading operations, an improperly r\ 

marked package of Biological substances. Category B UN 3373 had been V^ / 

accepted for air transportation. This picture is provided for further jV 

information: \0 

y \0 

^ - # 
Please note the number of the FDEA DG Specialist who accepted the shipment 

is 67571: 

In addition, on August 22, 2007, during the course of Hazardous Materials 

Ramp Inspections at the Medford, Oregon, FDEA facility, FAA Hazardous 

Materials Inspectors discovered two undocumented shipments of hazardous 

materials during off-loading operations of Empire Airlines (COEA) aircraft 

(N-940FE) at the FDEA station located at 3600 Terminal Spur Road Medford, 

^ . 

^ ' 

^•i 
Oregon 97504. Both shipments were accepted and transported on FDEA 

aircraft from Baltimore, Maryland, to Portland, Oregon, via Memphis, 

Tennessee, with no shipping papers, improper markings, and no written 

notification to the pilot(s)-in-command for each respective leg of air 

transportation for the packages. The following information is provided 

concerning the two shipments: 

Shipment # 1 

Material (Marked): Consumer Commodity, ORM-D 

Tracking #: 7317-0353-0530 

Shipment # 2 

Material (Marked): Consumer Commodity, ORM-D 

Tracking #: 7317-0353-0562 

This picture is provided for additional information: 

Please note that FDEA's air transportation labels on each respective 

package were located right next to the hazardous materials markings 

(Consumer Commodity, ORM-D). 

You are being provided an opportunity to review the events associated with 

these allegations, and furnish any information or material you deem 

relevant to the investigation. Your written response should include: 

a. A copy of your FAA approved hazardous materials program for 

personnel involved in the recognition, acceptance, handling, loading and 

air transportation of hazardous materials in air commerce. 

b. A description of proposed actions to prevent similar incidents in 

the future. 

Please be advised the allegation contained herein does not necessarily 

include all deficiencies that may be subsequently discovered during the 

course of this investigation. 

e 

i 

'•1 
Your response, if any, is needed within 10 business days after receipt of 

this letter and may be sent to me at the following address: 

Federal Aviation Administration 

Security & Hazardous Materials Division 

P.O. Box 55008 

Portland, Oregon 97238-5008 

If I do not receive a written response within the 10-day time period, I 

must conclude my investigation without the benefit of your statement. If 

you have any questions regarding this matter, please feel free to contact 

me at (503) 258-6995 or at donald.stiger@faa.gov. 

Sincerely, 

Donald A. Stiger 

Hazardous Materials Inspector, Security 

& Hazardous Materials Division 

c 

^•^^ < 
Corporate Saf' Telephone 901.434.9556 

3670 Hacks C toad Fax 901.434.9769 

Building G, 2n'..f loor 

Memphis. TNI 38125-8800 

Express 

September 6, 2007 "^ - '**'* 

Mr. Donald A. Stiger 

Security & Hazardous Materials Division 

FAAPDX 

7303 N.E. Alderwood Road 

Portland, OR 97218 

RE;2007NM700155 

Dear Mr. Stiger: 

FedEx Express has reviewed your letter received by my office August 28, 2007, regarding 

one UN 3373 shipment and two class ORM-D shipments. 

The UN 3373 shipment was from a local shipper in Medford, OR. These shipments do not 

require any shipper's declaration, label, specification package marking or manifests. As you 

are well aware, these type shipments have been going through several changes for several 

years. This item has gone fi"om being totally unregulated to only a shipping name and then a 

marking. Up until this year three different names were allowed on the outer package -

Diagnostic Specimens, Clinical Specimens and Biological Substance, Category B. We 

suspect there are literally thousands of preprinted boxes with any of the above listed but 

especially the name Diagnostic Specimens. I have included a recent interpretation from 

PHMSA regarding those shipments marked Diagnostic Specimens. 

FedEx Express makes available a wide variety of dangerous goods (DG) information on our 

public website for shippers. One of these educational tools is information about these type 

shipments on our regulatory update page. On that page we provide updated information about 

UN 3373 shipments and a brochure that can be downloaded (attached). A copy of the 

brochure was provided to the shipper. Women's Specialty Group, in Medford to comply with 

future shipments. 

Concerning the two ORM-D shipments from the same shipper, the courier mistakenly did not 

notice these minimal markings duiii^ processing operations. To our knowledge his particular C\ 

shipper has not offered DG shipments to FedEx Express in the past. They offer these type 

shipments by ground service. The shipper did not inform FedEx this shipment was a DG 

verbally or by any written notification. The employee only scanned the shipping labels for 

this shipment and the shipper applied the labels directly to their freight. This shipper then />)V 

places their freight on pallets and loads the pallets directly onto a trailer that is taken to the > Q"^ 

t 

^ 

\*-' 

Baltimore (BWIR) ramp. It is broken down at BWIR for the sort but employees there would y 

v 

d ' i 
FAA Case No. 2007NM700155 

Page Two 

not have been looking for or aware of any DG freight as again this shipper has not in the past 

offered any DG freight for air transportation to our knowledge. Since this issue came to our 

attention all shipping labels from this customer are scaimed by our employees when affixed 

to the packages. All employees working at this location have been made aware of this 

procedure and look for any DG markings and labels that might be applied. If any are 

discovered, they are to remove the package for inspection by one of our DG Specialists. 

The Sr. Manager along with an operations manager and this shipper's FedEx accoimt 

representative took immediate action the day you brought this to our attention. The shipper 

was contacted regarding this shipment and their Vice President has been informed they 

cannot offer any DG shipments to FedEx Express without providing proof of training and 

corrective action. All station managers and dispatchers have been informed of this shipper 

embargo. In addition, the Sr. Manager distributed an internal job aid to all employees at the 

station that shows an example of a correct ORM-D marking for air transportation. 

You are aware of the difficulty air carriers have when shippers offer 49 CFR class ORM-D 

shipments with only a marking ground shipment. Black lettering on a fiberboard box simply 

does not provide enough visual recognition to accepting air carriers. When offered by ground 

transportation class ORM-D is basically not regulated. Ground transport carriers accept and 

transport this class without any operational concerns as there are no shipping papers, 

manifest or placarding concerns. The phrase "consumer commodity" is ambiguous and does 

not necessarily indicate an item is regulated. ORM-Ds do not require any specification 

package marldng, hazard or handling label, UN/ED number and only require a shipper's 

declaration when offered for air transportation. Even when the marking is offered in a label 

form it does not communicate by shape (square) or color (blue) any hazard awareness. 

Many carriers, including FedEx Express, and industry organizations have requested 

that PHMSA further review this class of material because of the apparent problems 

associated with ORM-Ds. PHMSA in the Federal Register RSPA-02-11654 (HM-228) 

placed an advanced notice of proposed rulemaking regarding several changes in the 

regulations. One of those proposals was to align consumer commodities with the ICAO 

Technical Instructions. FedEx Express supported this change, as among other advantages, it 

would add consistency to the regulations. We have also commented in other rulemakings that 

PHMSA should harmonize this class of material with the international regulations wh^e 

consumer commodities would have a class 9 label and a UN/ID number associated with the 

proper shipping name. As recently as this year I attended a PHMSA public meeting on 

Limited Quantities and Consumer Commodities. I voiced our concern again regarding the 

acceptance issues with class ORM-D and the need to harmonize with the international 

regulations or at the very least adopt a new marking and labeling requirement to make this C\ 

class more visible to carrier persoimel. Our department is in the early stages of developing an T 

ORM-D label for air transportation that will be made available to shippers. The label 

X^ 
FAA Case No. 2007NM700155 

Page TTiree 

hopefully will provide better recognition of this class of material. Once that label is approved 

and finalized, I will be glad to send you an example. 

You can review any of our FAA approved training materials that are available at our station 

locations. Thank you in advance for your consideration regarding this report. If I can be of 

any further assistance, please do not hesitate to contact me directly. 

Regards, 

David Littlejohn 

Corporate Safety Advisor 

FedEx Express 

901.434.9567 

901.434.9769 (fax) 
Express 

Packaging Guidelines for 

Clinical Samples, Environmental Test Samples 

and Biological Substance, 

Category B (UN 3373) Shipments 

At FedEx, we understand the importance of quickly and 

safely processing clinical samples, environmental test samples and Biological Substance, Category B (UN 3373) shipments. FedEx Express can help with specific instructions for 

packaging, marking and labeling. 

Contents 

Requirements for Clinical Samples and Environmental Test Samples 23 

General Packaging Requirements 23 

Additional Packaging Requirements for Non-Infectious Clinical Samples 24 

Requirements for Biological Substance, Category B (UN 3373) Shipments 24 

General Packaging Requirements 24 

Free FedEx® Pagkage Testing and Design Services 26 

Contacts and Resources 27 

BacI: to How to Pack contents 

C; 

-X 
This guide outlines the requirements for shipping with 

FedEx Express. In addition, all shipments must comply 

with all applicable local, state and federal laws governing 

packing, marking and labeling. Blood, urine, fluids and 

other specimens containing or suspected of containing 

infectious substances must be shipped according to 

applicable government, International Air Transport 

Association (lATA) and International Civil Aviation 

Organization (ICAO) regulations. 

Requirements for Clinical Samples and 

Environmental Test Samples 

For the purposes of this guide, clinical samples are 

generally defined as non-infectious human or animal 

materials including, but not limited to, excreta, secreta, 

tissue and tissue fluids, blood and FDA-approved 

pharmaceuticals that are blood products. Environmental 

test samples are typically soil and water 

General Packaging Requirements 

For liquid clinical samples and environmental test 

samples of soil and water, you must include four layers 

of packaging; 

1. Primary watertight inner receptacle. Use 

leakproof containers for liquid specimens and siftproof 

containers for dried specimens — with a positive 

closure such as a screw-on, snap-on or push-on lid, 

taped for an additional seal. If you place multiple 

fragile primary receptacles in a single secondary 

receptacle, they must be individually wrapped or 

separated to prevent contact between them. 

2. Secondary watertight inner receptacle. Use a 

leakproof sealed plastic bag, plastic canister, screwcap can or sealed foam container 

3. Absorbent material. Place absorbent material 

between the primary and secondary receptacles, using 

enough material to absorb the entire contents of all 

primary receptacles. Acceptable absorbent materials 

include cellulose wadding, cotton balls, superabsorbent packets and paper towels. 

4. Sturdy outer packaging. Use rigid outer packaging 

constructed of corrugated fiberboard, wood, metal or 

plastic, appropriately sized for the contents. If the 

outer packaging is smaller than 7" x 4" x 2", you may 

use a FedEx® Clinical Pak as an overwrap to comply 

with the minimum acceptable size as long as the final 

package meets the four basic packaging requirements. 

Acceptable Absorbent Materials 

Cellulose wadding .. • • : , 

'St ' 

Cotton balls . 

Super-absorbent packets. 

Paper towels. 

Acceptable Primary Containers 

Taped plastic canister. "f-M 

Taped glass or plastic jar. 

Taped glass or plastic vial. 

Acceptable Secondary Containers 

Sealed, minimum 1 "-thick 

foam container 

- ^ 

Sealed plastic bag. 

Plastic container, 

Screw-cap can _ 0^ 

p\ 

Back to contents Page 23 
Additional Packaging Requirements for 

Non-Infectious Clinical Samples 

To ensure safe delivery of your clinical and environmental 

test samples, we provide these additional guidelines. 

Liquid Clinical Sample Marking Requirements 

Include a marking on the package that properly identifies 

the shipment as "Exempt human specimen" or "Exempt 

animal specimen" as appropriate to comply with current 

lATA and ICAO regulations. If you prefer, package 

markings may be in the form of a label. 

Dried Samples 

While non-infectious samples of dried blood, tissue, 

saliva and hair are not dangerous goods and are not 

required to meet dangerous-goods regulations, they do 

require special packaging that meets FedEx Express 

guidelines. Enclose dried-blood samples on absorbent 

pads or cards in watertight plastic bags and ship them in 

a sturdy outer container or commercial envelope. Cushion 

samples on glass or plastic slides and ship them inside a 

sturdy outer container or flexible-envelope packaging. 

Use of the FedEx Clinical Pak is optional. 

Environmental Test Samples 

Packaging of environmental test samples such as soil and 

water must meet the four basic packaging requirements 

for blood, urine or other liquid clinical samples. Provide 

adequate internal filler or cushioning to protect contents. 

Temperature-control requirements of environmental test 

samples are your responsibilit/. 

Packaging Restrictions 

• Foam boxes, plastic bags and paper envelopes are 

unacceptable outer containers. 

• The FedEx* Envelope, FedEx* Tube, FedEx* Pak and 

FedEx boxes are not acceptable as outer containers for 

clinical samples or environmental test samples. 

NOTE: Never place liquid clinical samples or environmental test samples in a FedEx Express* Drop Box. 

FedEx World Service Center* locations, FedEx Kinko's''" 

Ship Centers and FedEx Kinko s Office and Print Centers* 

accept FedEx Clinical Pak shipments that are not 

classified as Biological Substance, Category B (UN 3373). 

Requirements for Biological Substance, 

Category B (UU 3373) Shipments 

Customers who ship Biological Substance, Category B 

(UN 3373) shipments must comply with local, state and 

federal laws governing identification, classification, 

packaging and package markings (which may be in label 

form). FedEx Express strictly adheres to the lATA, ICAO 

and U.S. government guidelines for materials categorized 

as Biological Substance, Category B (UN 3373). 

General Packaging Requirements 

For Biological Substance, Category B (UN 3373) 

shipments, cushioning material is required for both 

liquid and dried specimens. You must also include four 

layers of packaging: 

1. Primary watertight inner receptacle. Use primary 

receptacles made of glass, metal or plastic with a 

positive means of ensuring a leakproof seal, skirted 

stopper or metal crimp seal must be provided; screw 

caps must be reinforced with adhesive tape. For liquid 

specimens, the primary receptacle must not contain 

more than 1 L. For dried specimens, the primary 

receptacle must not exceed the outer packaging 

weight limit. 

2. Secondary watertight inner receptacle. Use 

a secondary container that is leakproof for liquid 

specimens or siftproof for dried specimens. Choose 

only secondary containers certified by the 

manufacturer for Biological Substance, Category B 

(UN 3373) prior to use. Either your primary or 

secondary receptacle must be able to withstand, 

without leakage, an internal pressure differential of 

not less than 95 kPa in the range of -40 C to 55 C 

(-40 F to 130 F). To prevent contact between multiple 

fragile primary receptacles, individually wrap or 

separate them inside the secondary container 

3. Absorbent material. Place absorbent material 

between the primary and secondary receptacles, using 

enough material to absorb the entire contents of all 

^ 

^ 

Back to contents Page 24 b 
primary receptacles. Absorbent material is required for 

Biological Substance, Category B (UN 3373) shipments 

containing liquids. Acceptable absorbent materials 

include cellulose wadding, cotton balls, superabsorbent packets and paper towels. 

4. Sturdy outer packaging. Use rigid outer packaging 

constructed of corrugated fiberboard, wood, metal or 

plastic, appropriately sized for the contents. Limit the 

total volume for liquid samples to 4 L and the total 

weight of dried samples to 4 kg per outer container 

The minimum outer container size in the smallest 

overall external dimension is 4". Completed packages 

must be able to withstand a 4' (1.2-m) impact test as 

outlined in lATA 6.6.1 regulations. Before sealing 

the outer packaging, you must make an itemized list 

of the contents of the package and enclose the list 

between the secondary packaging and outer packaging. 

Biological Substance, Category B (UN 3373) 

Marking Requirements 

• Cleariy mark "Biological Substance, Category B" in 

6-mm-high text on the outer package adjacent to a 

properly sized UN 3373 diamond-shaped marking. If 

you prefer, package markings may be in the form of 

a label. 

• The name and telephone number of a person 

responsible must be marked on the package or 

provided on the airbill. 

• The name and address of the shipper and recipient 

must be marked on the package. However, when the 

shipper or recipient is also the "person responsible," 

the name and address need only be marked once in 

order to satisfy the name and address provisions. 

• If you choose to place more than one properly prepared 

Biological Substance, Category B (UN 3373) shipment 

in another outer package, mark "OVERPACK" on the 

outside packaging, and reproduce all other required 

package markings on the outside of the overpack. 

• If you are using a FedEx Clinical Pak with Biological 

Substance, Category B (UN 3373) shipments, check the 

applicable box on the outside of the pak. 

Biological Substance, Category B (UN 3373) Maildng Requirements 

"Biological Substance, Category B" must appear in B-mm-high text on the outer 

package adjacent to a diamond-shaped mark like the one shown here. The 

UN 3373 marking must be in the fomti of a square set at an angle of 45 degrees. 

Each side of the UN 3373 diamond should measure a minimum of 2" (50 mm). 

The width of the diamond rule line must be a minimum of 2 mm, and the letters 

and numbers must be at least 6 mm high. 

Packaging Restrictions 

• Foam boxes, plastic bags and paper envelopes are 

unacceptable outer containers. 

• The FedEx Envelope, FedEx Tube, FedEx Pak and FedEx 

boxes are not acceptable as outer containers for 

Biological Substance, Category B (UN 3373) shipments. 

• Shipments marked or labeled 6.2 (infectious materials) 

and shipments containing dry ice cannot be shipped in 

a FedEx Clinical Pak. 

• Biological Substance, Category B (UN 3373) shipments 

that are shipped refrigerated, frozen or in liquid 

nitrogen must comply with current lATA and 

ICAO regulations. 

• If you have questions about whether your samples 

require a biohazard label, consult the Occupational 

Safety and Health Administration (OSHA) for the 

applicable regulations. 

NOTE: Never place a Biological Substance, Category B 

(UN 3373) shipment in a FedEx Express Drop Box. Call 

1 .SOO.GoFedEx 1.800.463.3339 to be directed to a FedEx 

location that can accept these shipments. 

o 

O' 

Back to contents Page 25 y 
FedEx Clinical Pak 

PedEx provides a plastic FedEx Clinical Pak in small and large sizes for 

clinical samples, environmental test samples, and Biological Substance, 

Category B (UN 3373) shipments. 

Small Clinical Pak interior dimensions: 14.25" x 10.13" 

Large Clinical Pak interior dimensions: 18" x 13.?* 

When using the FedEx Clinical Pak, you must also meet general packaging 

requirements, including primary and secondary receptacles, absorbent 

material and a sturdy outer container. 

FecEx 

EjttrRTwIv UrgMl 

Small Onicsl Pak 

^^ffiiSl 

If you are using a FedEx Clinical Pak for a Biological Substance, Category E 

(UN 3373) shipment, check the box on the outside of the pak. 

Free FedEx® Package Testing 

and Design Services 

We offer package testing, evaluation and design services, 

and we encourage you to submit a sample of your 

clinical-sample and environmental-test-sample packaging 

for testing and evaluation. Simply substitute water 

or sand for your sample material in equal weight to 

approximate your actual test sample. The FedEx Packaging 

Design and Development lab does not test packaging for 

Biological Substance, Category B (UN 3373) shipments. 

Testing Request Guidelines 

Follow these steps for submitting your packaging for 

testing. An active FedEx account number is required. You 

and your FedEx account executive should expect testing 

results in approximately 5 to 7 business days from receipt 

of your packaging. 

1. Obtain a Packaging Services Application atfedex.com 

or by contacting FedEx Packaging Design and 

Development at packagingsen/ices@fedex.com 

or 1.800.633.7019. 

2. Complete and sign your application, referencing the 

name of your FedEx account executive on the form. 

3. Prepare a sample test package including all the 

components in the exact weight and configuration 

you intend to send to your lab, with water or sand in 

place of the actual sample. Indicate "Non-Hazardous 

Content" on the samples and on the sample outer box. 

4. Place your completed application, any pertinent 

product documentation and your sample clinical 

test packaging labeled "Test This Package" and any 

necessary cushioning material in a sturdy outer 

container marked "Overpacked/Test Pkg. Inside." 

5. Send your shipment to; 

FedEx Packaging Design and Development 

2828 Business Park Drive 

BIdg. H, Suite 500 

Memphis, TN 38118 

<^A 

oBack to contents 

0A\ 

Page 26 
Contacts and Resources NOTICE: 

• How to Pack guidelines at fedex.conVus/services/ FedEx Express wil l refuse to accept packages 

packageshipment/ that do not meet FedEx Express, government, or 

r.rni n jr> i , u 'ATA and ICAO requirements. This brochure is 

• FedEx Packaging Design and Development lab, . .. . . ' . 

1 ^ f J innnr-omnm 10 HO wBy intended to roplaco roquiremonts packagingservices@fedex.com or 1.800.633.7019. .^. . .„„ TM J .«-r« TL- • M ^ ^ ^ mandated by 49CFR and lATA. This IS for 

• FedEx Dangerous Goods/Hazardous Materials Hotline, informational purposes only. 

I.SOO.GoFedEx 1.800.463.3339, ext. 81. 

NOTICE: This packaging brochure is provided free to FedEx customers to help reduce loss or damage due to improper packaging. It is NOT Intended to be a comprehensive guide for packaging items ^ ^ 

we accept for transit We make no warranties, expressed or implied, regarding this information. Proper packaging is the sole responsibility of the shipper For more infomiatron and comprehensive 

guidelines, contact the FedEx Dangerous Goods/Hazardous Materials Hotline at I.SOO.GoFedEx 1.800.463.3333. and press '81.' Or e-mail the FedEx Packaging Design and Development departmental 

packagingseivlces@fedex.com Refer to the current FedEx Sen/ice Guide for terms, conditions and limitations applicable to FedEx® delivery sen/ices. 

©2007 FedEx 

Back to contents Page .C\' 
2023667435 01:27:0' Qe-OB-2007 1/2 

e 

1200 NMT Jmnty AVWIIM. 8 E 

WMhtnuton, D.C. 20590 

Reference No. 07-0087 

US. Department 

of Transportotton 

Pipeline and Hazardous 

Materials Safety Admlnfstration 

JUN 7 2007 

Mr. John V. Cunie 

Administrator 

The Council on Safe Tran.spoitation 

of Hazardous Aiticles, Inc. 

7803 Hill House Coun 

Fairfax Station, VA 22039 

Dear Mr. Cuirie: 

This is in response to your Febntaiy 20, 2007 letter to Nfr. Bob Richard, Dqwty 

Associate Administiator for Hazardous Materials Safety. Pipeline and Hazardous 

Materials Safety Administration, concerning how to transpcnt packages that contain 

blood and urine samples that do not meet the definition for a hazardous material under 

the Hazardous Materials R^ulations (HMR: 49 CFR Parts 171-180). You state these 

.samples are placed fai packages tfiat are pre-printed wiA the words "Diagnostic 

SpecioEien." Your letter was forwarded to thie Office of Hazardous Materials Suuidards 

for reply. We paraphrased and answered your questions below. 

Q1. To msure continued compliance with the HMR, must a carrier ask the offeror if 

every package displaying the maddng "DIAGNOSTIC SPECIMEN" contains an 

infectious substance to leam whether or not it contains this material? If carriers 

do not ask the offeiors this question, are they at risk of committing a probable 

violation of the HMR based on their potential knowledge of the omtents? 

AI. The answer to both questions is no. EfleciiveOctober 1.2006. under Docket No. 

PHMSA-2004-1689S (HM-226A; 6/2/06), we lephK^ed the proper shipping name 

and mnkittg "Diagnostic specimen" with "Biological substances. Category B" 

and a diamond-shaped mark containing die letters and numbers "UN 3373" 

printed at least 6 mm (0.24 inches) high. See § 173.199(a)(SX AUiou^ the 

HMR do not prohibit the words "Diagnostic specimen" fkoni bebig marked on a 

package, on and after October 1,2006. these words may no longer be usedto 

denote a Division 6.2 (infections) material Note, however, in accordance with 

{ I72.101(0< stocks of preprinted shippuig papers or package madcuigs may 

continue in use until depleted or for one year after die October 1.2006 effective 

date, whichever is less. A carrier is not required m question the offeror on 

whedier or not a padcage marked "DIAGNOSTIC SPECIMEN" contains a 

Division 6.2 material; however, it may be in die carrier's best interest to do so to 

ensure he or she is not inadvertently transporting an item meeting the definition of 

a hazardous material. 

C. 

\ « 
202 3667435 01:27:27 \ 06-08-2007 2/2 

Q2. Do the HMR prohibit shiiq[iers from displaying the words "DIAGNOSTIC 

SPECIMEN" on all packages? Are we correct in a.«$uming it is not a prohibited 

marking? 

A2. The HMR do not prohibit display of the words "DIAGNOSTIC SPECIMEN" on 

a package. 

Q3. May a shipper offering padent specimens exempt from regulation under the HMR 

to an tntemational transport carrier call them diagnostic specimens when 

transportiiig these materials in the United States? 

A3. Yes. 

I hope this satisHes your request. 

Sincerely. 

Hattie L. Mitchell, Chief 

Regulatory Review and Reinvention 

Office of Hazardous Matoials Standards 
Federal Register/Vol. 64. No. 76/Wednesday. April 21. 1999/Rules and Regulations 19443 

Smidl Business R^ulatoty Enforcement 

Fairness Act 

The Small Business Regulatoiy 

Enforcement Fairness Act td 1996 (Pub. 

L. 104-121) provides generally for 

congressional refvlew of agency rtdes. A 

reporting requirement Is triggered In 

Instances where NCUA Issues a final 

rule as defined by Section 551 of the 

Administrative Procedures Ac t 5 U.S.C. 

551. The OfQce of Management and 

Budget has determined tihat this rule 

does not constitute a major rule for 

purposes of the Small Business 

Regulatory Enforcement Fairness Act of 

1996. 

List of Subjects In 12 CFR Fort 701 

Charitable contributions. Credit 

unions. 

By the Natiorta] Credit Union 

Adnilnlstratton Board on April 15, 1999. 

Beckjr Baker, 

Secretaiy of the Board. 

For the reasons ^ t forth above. NCUA 

amends 12 CFR part 701 ais follows: 

PART 701-ORGANIZAT1ON AND 

OPERATION OF FEDERAL CREDIT 

UNIONS 

', 1. The authority citation for part 701 

continues to read as follows: 

Authorilsr: 12 U.S.C. 1752(5), 1755,1756. 

'757.1759.1761a. 1761b. 1766. 1767, 1782. 

i7B4.1787. and 1789. Section 701.6 Is also 

authorized by 31 U.S.C. 3717. Section 701.31 

la also audioilzed by IS U.S.C. 1601 e( seq. 

42 U.S.C. 1861 and 42 U.S.C. 3601-3610. 

Section 701.35 is also authorized by 42 

U.S.C. 4311-4312. 

2. Part 701 Is amended by adding 

§701.25 to read as follows; 

§701.25 Chaittabto contritwIionB and 

donatloiw. 

(a) A federal credit imlon may make 

charitable contrlbudons and/or donate 

funds to rec^lents not organized for 

profit that are located in or conduct 

activities in a communis in which the 

fedei^il credit union has a place of 

business or to oi^ganlzatlons that are tax 

exempt organizations imder Section 

501 (c)(3) ^th e Internal Revenue Code 

and operate primarily to promote and 

develop credit unions. 

(b) Tne board of dlrecton; must 

approve charitable contributions and/or 

cbnations. and the approval must be 

based on a determination by the board 

of directors that the contributions and/ 

or donations are In the best interests of 

^e federal credit union and are 

.easonable given the size and financial 

condition of the federal credit union, 

ihe board of directors, if it chooses, 

may establish a budget for charitable 

contributions and/or donations and 

authorize appropriate officials of the 

federal credit union to select recipients 

and disburse budgeted funds among 

those recipients. 

|FR Ooc. 99-9931 Piled 4-20-99; 8:45 am] 

BUJHQ CODE 7G3S-01-I' 

DEPARIMENT OF TRANSPORTATION 

Federal Aviation Administration 

14 CFR Part 13 

FiBderal Aviation Admlnisbatlon Policy 

on Enforcement of the Hazardous 

Materials Regulations: Penalty 

Guidelines 

AGENCY: Federal Aviation 

Administration (FAA). DOT. 

AtmON: General statement of policy. 

SUUMAHY: This document states that 

FAA policy on detennlning the sanction 

amounts in FAA enforcement actions 

addressing violations of the Department 

of TVanspottatton Hazardous Klat»1al 

Regulations (HMR). This policy 

statement provides guidance for agency 

personnel in the exercise of the FAA's 

prosecutorial discretion in enforcement 

cases concerning transportation of 

hazardous materials by air. The 

guidance should aid In analysis (f the 

ucts and circumstances of each case so 

as to arrive at an appropriate saiKtion in 

light of the statutorily defined penal ^ 

considerations. The analytical 

fhuhewoilc should also promote a 

relative consistency in determining civil 

penalties for violations of the HMR 

EFFECTIVE DATE: April 14. 1999. 

FOR FUrmiER MFOnUATKMI CONTACT: 

BlU Wilkenlng. Office of CivU Aviation 

Security, Dangerous Goods and Cargo 

Security Division, telephone: (202) 267-

9864, fiacsimUe (202) 267-5760. emaU: 

Bill.Wilkening@faa.gov, mailing 

address: ACO-800,800 Independence 

Avenue. S.W., Washington, D.C. 20591. 

or Allan H. Horowitz, Enforcement 

Division, Office of the Chief Counsel, 

telephone (202) 267-3137. facsimile 

(202) 267-5106, emaU: 

AIlan.Homwit2&laa.gov, mailing 

address: AGC-300,800 Independence 

Avenue. S.W., Washington. D.C. 20591. 

SUPi>l.EMENTARY INFORMAHON: 

Background 

Congress determined that the 

unregulated transportation of hazardous 

materials constitutes a threat to public 

safe ^ in all forms of transportation. 

Congress addressed that threat in 1974 

by enacting the Hazardous Materials 

Transportation Act (HMTA). By 1990, 

Concress determined that pfferthiPL 

enforcement of the HMTA required 

more severe action, and enacted the 

Hazardous Materials Transportation 

Uniform Safe^ Act of 1990. Public Law 

No. 101-615.1990 U.S. Code Congress. 

& Admin. News 104 Stat. 4605. The 

primary effect of this 1990 revision of 

the HMTA was to raise the maximum 

civil penalty for violation of any 

regulation enacted under the HMTA to 

$25,000, and. for the first time, to 

require a $250 minimum penalty fior any 

such violation. The HMTA was 

recodified In 1994 and is now refen-ed 

to as the "Federal hazardous material 

transportation law." 1994 U.S. Code 

. Congress, ft Admin. News 108 Stat 759. 

codified at 49 U.S.C. 5101-5127. In the 

1994 recodification. Congress 

specifically stated that the 

recodification created no substantive 

change to the earlier form of the statute. 

The Federal ClvU Penalties Inflation 

Adjustment Act of 1990,28 U.S.C. 2461 

(note), as amended by the Debt 

Collectton Improvement Act of 1996, 

Public Law 104-134, April 26.1996. 

provides a mechanism for ad)u5troents 

for monetary dvll penalties for inflation 

in order to maintain the deterrent effect 

of monetary civil penalties and promote 

compliance with the law. Under tiie 

statute, the new civil penalty 

maximums cannot be applied unless 

they are Implemented by regulation. On 

December 20.1996. the FAA published 

a final rule (61 FR 6744), implementing 

the statute for each dvU perulty subject 

to the FAA's Jurisdiction. On January 

21,1997, the FAA publisheda 

correctton to the final rule (62 FR 4134). 

The final rule is codified at 14 CFR Part 

13, Subpart H. Pursuant to 14 CFR 

13.305(d). the maxlmtmi dvll penalty 

that may be assessed for a violation of 

the Federal hazardous material law or a 

hazardous material regulation is now 

$27,500. 

Congress assigned the responsibility 

for the enforcement of the Federal 

hazardous material transportaUon law to 

the Secretary of Transportation. Within 

the Department of IVansportation, the 

Researui and Special Programs 

Administration (RSPA) adopts the 

Hazardous Materials Regulations 

(HMR). 49 CFR parts 171 Uirough 178. 

which govern the transportation of 

hazardous materials (Hazmat). Although 

RSPA has some enforcement 

responsibilities, the responsibility for 

enforcing the HMR with respect to clvU 

aviation is delegated by the Secretaiy of 

IVansportation to the FAA. 49 CFR 

1.4700. 

The HMR set forth regulations for the 

transportation of Hazmat. A knowing 

violation of the statute or of the HMR 

ran fiiirinnrf f\\r» acCAvcmonf nf a r>li«4l 

^A-; 
19444 Federal Register/Vol. 64. No. 76/Wednesday. April 21, 1999/Rules and Regulations 

.penalty between $250 and $27,500. A 

person acts knowingly when the person 

has actual knowledge of the facts giving 

ise to the violation; or a reasonable 

person acting in the circumstances and 

exerclsli]g reasonable care would have 

that knowledge. 49 U.S.C. 5123(a)(1)(A). 

The clvU penalties authorized imder the 

statute apply to BACH violation of any 

regulation set forth in the HMR. 

Moreover, under the statute, each 

continuing Woladon of the HMR can 

constitute aseparate violation for each 

day a violation continues. In secdon 

5124 of the statute, Cor^gress prescribed 

criminal penalties for a wiUful violation 

of the Federal hazardous material 

transportation law or the HMR: willful 

violations require evidence of both 

knowledge of the laws and regulations 

and intent to violate them. 

Part 13 of the Federal Aviation 

Regulations—Investigative and 

Enforcement Procedures (14 CFR Part 

13) governs the procedures applicable to 

enfbrcement of the HMR by the FAA. 

Hazmat violations occurring on or after 

August 2,1990, may be dismissed by an 

administratWe law Judge (ALJ) If a 

Notice of Pnyxned Civil Penalty has not 

been Issued within 2 years of the 

vlolaUon, unless good cause for delay 

Aas been shown. |4 CFR 13.208(cl). 

- Consideration of Statutory Criteria 

In determining the sanction to be 

assessed, penalty criteria set forth in 49 

U.S,C. 5123 must be considered. These 

criteria are the nature, circnmistances, 

extent, and gravity of the violation, the 

degree of culpability of the violator, any 

history of past violations, the ability to 

pay, any diect on the ability to continue 

to clo business, and other matters as 

Justice requires. Some of these 

considerations already are factored to 

some extent into the categories In the 

Hazardoiis Material Sandlon Guidance 

Matrix. The statutory fadors are further 

considered under the weighting analysis 

that is performed to Indicate the amount 

of civil penalty within the appropriate 

range, i.e. at the mlnlraum, moderate, 

or maximum portion of the sanction 

range. To comply with the underlying 

purposes of the Federal hazardous 

material transportation law and HMR, a 

sanction should be Imposed that Is 

sufficiently deterrent but not excessive. 

The Hasirdous Materials Sanction 

Outdance is designed to promote better 

consistency so that similar penalties are 

imposed In similar cases. The Matrix 

]mges are intended to reflect the nature, 

jircumstances, extent and gravity of the 

:ase as compared with other types of 

cases. Each case, however, must be 

evaluated on its own facts. A sanction 

mav differ from the Matrix ranees when 

the facts and circumstances of a case 

support either a greater or lesser 

penalty. When a special qgent tielieves 

that a penalty should exceed the Matrix 

ranges, the agent should consult with 

l^ial counsel before further processing 

of the Enforcement Investigative Report 

(EIR). This consultation is not necessary 

in the case of a recommended penalty 

that is less than that provided in the 

Matrix. In either situation, the basis for 

the decision to go outside the ranges 

should be explained In detail. 

Violations of Part 175 of the HMR. 

which establish particular requirements 

for air carriers arid other airci^ 

operators, are contained in a separate 

matrix. However, such operators often 

offer hazardous materials for air 

transportation, as well as accept and 

transport them. For this reason, such 

operators may be liable t » violations 

both as a business entity within the 

Hazardotu Materials Sanction Guidance 

Matrix, as well as specific air carrier 

violations. 

Use of (he Sanction Guidance 

This guidance provides agency 

personnel with a systematic way to 

evaluate a case and arrive at an 

appropriate penalty, considering all the 

relevant statutory criteria includUng any 

mitigating and aggravating 

circumstances. Statutoiy considerations 

have been factored Into the various 

taiiges within the Sanction Guidance 

Matrix. Determination cf where a 

sanction Ilea within these ranges is 

aided by a series of weighting questions 

that pnAe the various aggravating and 

mitigating factors that may exist in a 

case. 

First, the weighting analysis Is 

perfbrmed. Agency personnel respond 

to a series of <{uesttons to determine the 

aggregate weight of the case. Ihe 

aggr^ate we^ t of the case helps 

determine the sanction amount of each 

violation group within the established 

ranges of die Matrix. 

It is important to note that 

detennination of where the sanction lies 

within the Matrix is not the result of a 

mathematical computation. Evaluation 

of the case is based on ttie totality of the 

facts and circumstances. Generally. If 

the answer to a particular question 

represents a more significant asped of a 

case, greater consideration shoidd be 

given to that answer. For example, 

violations involvlr^ an extremely 

dangerou7substance. even in minute 

quantities, might warrant a penalty at 

the maximum end of the range or even 

a penalty exceeding the Matrix ranges. 

Under the Sanction Guidance Matrix, 

agency personnel determine the 

cateeorv of violator die person falls 

within (e.g., business entity that 

regularly offers, accepts, or transports 

Hazmat) and the offense category (e.g.. 

undeclared shipment within Hazmat 

quantity limitations). The sanction 

ranges under the various violator 

categories take into account tlie rdatlve 

culpability of the violator. Similarly, the 

offense categories address the nature, 

drcumstances, and gravity of the 

particular offense. Mter cletermlnlng the 

appropriate categories and Intersecting 

box of the Matrix, agency personnel 

then detennine which subcategories of 

ofiienses (e.g.. shipping papers) are 

alleged to have been violated. Based on 

the weighting analysis performed in 

Secdon I, an appropriate penalty Is 

assigned for eadi of the applicable 

violation groups- The penalty amount 

for each rdevant violation group is 

added together to reach the 

recommended sanction. 

Under Section m of the Guidance, the 

spedal agent then considers other 

relevant foctors. including evidence of 

corrective action. A recommended 

sanction may be reduced prior to the 

issuance of a Notice of Proposed Chrll 

Penalty when there is adequate reliable 

Information concerning the corrective 

actions taken fay a respondent 

Correcttve actions that Justify reduction 

of the recommended penalty must 

exceed the minimum legal 

requirements. The sp«dal agent also 

attempts to provide information 

concerning the alleged violator's size, 

finandal condition, and ^ility to pay a 

reconunended sanction. 

When an EIR Is forwarded to legal 

counsel for enforcement action, counsel 

with give appropriate consideration to 

the recommended sanction. FAA legal 

counsel will also review the factors, 

analysis, and determinations under the 

Hazardous Materials Sanction 

Guidance. Any basis for deviating from 

the recommeiid sanction Is ordinarily 

explained to. and discussed with, the 

investigating special agent. Final 

determUiatlon of the sanction amount 

proposed in the Notice of Proposed. 

Civil Penalty is ordinarily a jnxxluct of 

Joint decisonmaklng and approval of the 

Investigating agent and the l^al offke. 

Federal Aviation Administration 

Hazardous Materials Sanction 

Guidance 

This Sanction Guidance is divided 

into three sections: 

I. Case Analysis, 

n. Utilization of the Sanction Guidance 

Matrix (Matrix), and 

m. CoitslderaUon of other Statutoiy Factors. 

The Sanction Guidance Matrix is contained 

in Figure 1 and the Risk Categories are 

contained in Fieure 2. 

c. 
Federal Register/Vol. 64, No. 76/Wednesday, April 21. 1999/Rules and Regulations 19445 

I, Case Analysis (Evaluation of 

Statutory Assessment Fadors) 

This section contains a series of 

questions designed to assist special 

agents and attorneys In evaluating a 

particular case. The question review 

factors Invohing the nature, 

circtmistances, extent and gravity of the 

violation, the violator's degree of 

hi culpability, and the vfolator's history of 

[j prior violations. Some of these foctors 

' are already considered to some detent 

within the varlotJS categories of the 

Sanction Guidance Matrix. The 

questions in this section provide 

additional consideration of the statutoiy 

factors and examine the existence of 

aggravating and mitigating factors in a 

case. 

The agent^attomey answers each 

question In Section I and determines If 

a relative weight of minimum, 

moderate, or maximum should be 

assigned based on the response to tlie 

question. With the exception of 

Question Al., not all questions will 

apply to a given fact situation. Question 

A1., which addresses the nature of the 

hazardous Aiaterial(s) involved. Is the 

only question that always receives a 

"yes" answer to one of Its subquestions 

and Is considered in every case. The 

aggravating or mltlgatii^ factors 

-iddressed in the questions only apply to 

die case when the C]uestlon receives a 

"yes" response. Questions receiving a 

"no" response do not affed the 

weighting of the case and are not 

consfidereid. For example, if the vfolation 

resulted in hann to persons or property, 

tiiat may bean aggravatingfector In the 

case. However, the fod that the 

violation did not result in injury or 

damage. Is not a mitigating factor and 

should not result in penalty mltigstion. 

In many Instances, the answers to most 

or aU of the questions will tie "no" and 

the only relevant weighting factor In 

this section will be the risk categoty of 

the material identified In Question A.l. 

In determining the final aggregate 

weight of the case, the responses to each 

of the questions do not have to be 

equally considered. Determination of 

whether the overall case should have a 

minimum, moderate, or maximum 

weight cannot be determined with 

mathematical certainty. Generally. If the 

v ; answer to a question demonstrates that 

the factor at issue represents a more 

significant aspect of the case, greater 

|onslderaUon is given to that factor. The 

.Inal aggregate weight is based on the 

otallty of die facts and circumstances of 

Jie case. Once determined, the final 

aggregate weight Is then utilized to 

each applicable violation group on the 

Sanction Guidance Matrix (Fig. 1). 

A, The Nature, Circumstances, Extent, 

and Gravity of the Violation 

(Factors Concerning the Shipment 

1. What Matertal(s) Was Offered, 

Transported, or Accepted for Air 

Transportatton? 

(Figure 2 divides hazardous materials of 

partlctdar dasses, divisions, and 

packing groups Into three risk 

categories: Category A. Category B, and 

Category C. Find the materlal(s) at Issue 

in Figure 2 and answer the questions 

below.) 

a. Is the material (s) ofiiered, 

transported, or accepted In Category A? 

If yes. assign a Maximum wel^t. 

b.Is die materlal(s) ofTered. 

transported, or accepted in Category B? 

If yes, assign a Moderate wei^ t 

c.Is the material(s) ofiioed, 

transported, or accepted In Category C7 

If yes, assign a Minimum weight 

Guldaiice Note: The categories in Figure 2 

represent ttie inlKrent risk of danger to air 

tiansportatlan posed l>y tlui material, tf there 

is more than one type of hazardous material 

involved In the slilpnient answer tills 

question using tlie hazardous materia] In the 

higiiest risk category. 

2. What Quantity of the Matcrial(s) Was 

Oflered, Trans^iorted. or Accepted for 

Air Transportation? 

a Did the package(^) exceed the 

authorized quantity llrnitaUons by a 

siffiUJcant amount? 

If yes, consider a Moderate or 

Msdmum weight dependiiig on the 

d^ree to which the limitation was 

exceeded. 

GiddaiKe Note: The Matrix, discussed in 

Section III. takes into account the factual 

situations wiiere the quantity limltttlans for 

the material are exceeded, llils part of the 

analysis la Intended to detennine whether 

further aggravating circumstances exist 

where quantity limitations are exceeded fay a 

significant amount Wliether this fiictor is 

assigned a moderate or maximum weight will 

depend on the degree by which the quantity 

limitation was exceeded. 

Example: The quantity limitation for 

gasoline on a passenger plane is 5 liters per 

package. If a violator offers 30 liters in a 

single package on a passenger plane, this may 

result In a maximum weight for this factor. 

b. Were there multiple packages in the 

shipment? 

If yes. consider a Moderate or 

Maximum weight, dependiiig on the . 

number of packages and total anwunt of 

hazardous material being transported in 

VlolaUon. 

Guidance Note: A package means a 

packaging plus its contents. There way be 

overpack. MulUpto packages often represent 

multiple violations. Under the Sanction 

Guidaice. tlds &ct is considered an 

aggravating circumstance rattier tlian a diiect 

mulUplier of the sanction for each violaUon. 

Each case, however, must be evaluated on its 

particular iacts. A vety large-number of 

packages may result in sudt an. egregious 

case that the ovGiall weiglit of the case is so 

high ttiat a penalty iieyond ttw maximum 

point in the range is warranted. 

An investigation will occasionally reveal 

several sh^nnents from the same offieror over 

a period of seveial days, all of wlilch involve 

violations of the HMR. These Independent 

acts of oifEiaring usually are consolidated Into 

one EIR and addressed in one Note of 

Proposed CtvU Penalty. However, for 

purposes of detennlning tite appropriate 

sanction, each separate siiipinent with a 

separate air waybill or shtoping paqpen. . 

separate destination, and/or any other 

evidence establishing It ias a separate 

shipment is onlinarily oonsldtted as a 

separate incident for purposes of applying 

the sancticm guidance arulysls. It is 

suggested that the separate shipments lie 

treated as individual counts in tlie EIR and 

the Notice of Proposed Civil Penalty, with . 

each count having its own sanction derived 

from applicaUon of tills guidance. Note, there 

must be sufficient evidence to support each 

count 

3. Did the Shipment Cause Damage or 

Harai to Persons or Property, or Interfere 

With Commerce? 

If yes, consider a Moderate or 

Marimum weight 

Guidance Note: The Eact that no damage 

occurred as a result of the shipment is not 

a mlUgatUig factor. However, damage or harni 

may aggravate the nature, cdrcumstances. 

extent and p«^ ^ of the violation. 

Depending on die degree of damage caused 

by tha shipment and/or the existence of other 

g^ggravatliig foctots, departure from the rai>ges 

may be Justlfled. 

B. Violator's Degree of Culpability 

(The Matrix, Figure 1, considers the 

relative culpability of the violator. This 

section of the analysis further evaluates 

the degree of culpability of the violator.) 

1. Is the Violator the Manufacturer of 

the Hazardous Material? 

If yes, consider a Maximum weight 

Guidance Note: A manufacturer of a 

ttazardous materiat is expected to have 

complete knowle<ige of the nature of the 

hazardous material and thiis. a liigh degree 

of culpability wiU ordinarily l>e imputed to 

It 

2. Did Someone Other Than the Violator 

Prepare the Shipment for 

Transportation? 

If yes, consider a Minimum or 

Moderate weight 

Guidance Note: Pacts supporting an 

afiinnaUve answer to tills question may be 
1944 6 Federal Register/Vol. 64, No. 76/Wednesday . April 21, 1999/Rules and Regulations 

.separate enforcement action against other 

responsible parties wlio Itandled the 

Shipment A shipper that restiips materials 

Reived from another person in die same 

packaging is independentiy responsible for 

ensuring the shipment conu>lies with the 

HMR Nevertheless, the reshipper is 

generally considered to have a lesser degree 

of culpability for compliance of the package 

as received. However, if tlie restilpper 

unpacks and/or repackages the slUpment the 

r^hlpper remains as culpable as the original 

shipper and generally is not accorded 

mitigation under tills weighting factor. (For 

purposes of this sectton, a "reshippec" refers 

to a person, other than the original oITeror, 

wlio oficTs a shipment of hazardous material 

for transportation.) 

3. Did the Violator Reasonably Rely on 

Incorrect Information From Another 

Source? 

If yes. consider a Minimum weight 

Guidance Note: Detrimental or reasonable 

reliance on another party may be a mitlgattng 

lactor wtien considering the violator's degree 

of culpability. For example^ reliance on an 

Inaccurate Material Safbty Data Sheet (MSDS) 

may be mltifating, 

4. Does the Violator Have a History of 

Previous HMR Violations? 

If yes. cohslder a Moderate or 

Maximum weight 

Guidance Note: To establish a vlolaUon 

history, a prior violation must be an actual 

Indirq; of violation pursuant to a legal 

enforcement action. Special agents diould 

atternpt to determine die corporate structure 

of the violator and whether otiier inslnesa 

enUtles or names are or have been used tiy 

the entity in order t(> obtain a cortiplete 

: violation tUstory. The number and age of 

violations should be considered. OrdUnarlly. 

finding) of violation more than S years old 

cany less wdgtit unless a contlnuiiiK pattern 

of violation exists. 

C. Otiier Factors 

Each case must be evaluated on Its 

particular facts. As such, many cases 

may present unique scenarios and 

aggravating or mitigating factors tliat are 

not routinely seen. If an aggravating or 

mitigating circumstance exists that is 

not adequately addressed elsewhere in 

the sanction guidance. It may be 

bicluded and assigned a weight under 

this section. The factor should be clearly 

identified and explained In the analysis 

portion of the EIR and carefully 

scrutinized by legal counsel. 

Guidance Note: For example, a shipment 

of a single package contalniiig several 

different tiazardous materials may present an 

aggravating foctor. The degree of seriousness 

if this factor will Increase If tlie hazardous 

thuateriais are incompatible vylth each other 

ind. ttierefore, create an Increased risk. 

Mitigating factors may also exist that have 

not been adequately considered. For 

example, a shipment containing a cfe winJmis 

quantity of material or an amount that would 

have qualified under the small quantity 

exception of S 173.4 may present a mitigating 

factor if as a lesuh ttiete was a reduced risk 

to safety In transportation. 

D. Determine the Final Aggregate 

Weight of the Case 

Alt the responses/weights are 

e%^uated to detennine a final aggregate 

weight of the case (Minimum, Moderate, 

and Maximum). Questions recdvlng a . 

"ho" response will not be Induded in 

this evaluatton. To detennine the final 

aggregate weight the agent/attorney 

must exercise his/her discretion In light 

of the statutoiy fadors and Icnowledge 

of the particular fads of the case. The 

facts of the particular case will dictate 

the rotative Importance of each of the 

weighting factors In reaching a final 

aggregate weight The final aggregate 

weight should be dedded as a rntilt oi 

careful analysis, not a mathematiail 

averaging. It is possible that a single 

weighting factor may outweigh all 

others. The agent/attomey's analysis 

should always be explained in tlUs 

regard. 

Example: A case involviiig a Itazardous 

material in the lowest risk category may be 

evaluated to Iiave a maximum weight 

because of the Iai;ge quantity ship|Kd or the 

damage resulting from the shipment 

n . Utilize the Matrix (Figure 1) 

The sanction ranges under the ofteror 

and ofiense categories of the Sanction 

Guidance Matrix refied the relative 

culpability of the violatoT and the 

nature, circumstances, extent and 

gravity of the case. Consideration of 

diese particular statutoiy factors und«' 

the Federal hazardous material 

transportation law Is built Into ttie 

Matrix. Further analysis of the statutoty 

factors Is required to detennine the 

appropriate sanctton within the ranges 

established under the Matrix. This 

analysis Is performed In Section 1. After 

determinhig the final aggregate weight 

of the case under the| Section 1 anal^ls. 

that weight Is applied to the appropriate 

matrix range to Identify the 

reconunended sanction amount for each 

of the relevant violation groups aixl for 

tfie case as a whole. Although the Notice 

of Proposed Civil Penalty may dt e 

numerous violations of a particular part 

or subpart of the HMR, unless upward 

departure Is Justified, a single penalty 

amotmt for each violation group Is 

ordinarily used to reach the full 

sanction. 

A. Instructions 

1. Identify the appropriate categcny 

for the type of entity and the nature of 

the ofiense involved In the case. Refer 

to the Definitions Section that follows 

the Matrix In Figure 1 for guidance. Co 

to the intersecting box and identify the 

applicable sanctton range for each 

vtolaUon group. 

2. Apply the conduslon reached in 

the Section I weighting analysis to 

assign a sanctton amount within the 

minimum, moderate, or maximum 

portion of the sanctton range for each 

relevant violation group. Ih e 

recommended civil penalty at this stage 

is the sum of the sanctions for each of 

the appUcable violation groups. A 

sanctton should not be assessed for a 

violation group If there have been no 

violations of that part or sulipart of the 

HMR. The sanctton amount for each 

vlolatton group need not be identical 

but ordinarily is within the portion of 

the particular sanction range that 

represents ttie overall weight of the case. 

3. Departure bom the Matrix ranges— 

The Matrix is designed to cover the 

majority of cases Involving violations of 

the HMR . The fiids and circumstances 

of a particular case, however, may 

Justify either an upward or downward 

dqiarture bam ihe Matrix ranges. This 

sanction guidance anttdpates and 

encourages departure fiom ttie Matrix 

ranges when Justified. A case tovolving 

violattons in which the nature, 

circumstances, extent, and gravity of the 

inddent are particularly severe or 

egregious, may Justify upward departure 

from the Matrix. If the investigating 

agent believes, based upon the facts of 

a case, that a penalty should exceed the 

Matrix ranges, the agent should consult 

with legal counsel before further 

processing of the EIR. Conversely, the 

Investigating agent may tieUeve that 

mitigaUx^ ficbus Justify a downward 

departure bom the Matrix range. 

Consultation with legal counsel is not 

necessary In the case of a recommended 

penalty that Is less than that provided 

in the Matrix. In either situation, 

however, the agent is to provide a 

detailed explanation of die basis for the 

decision to go outside the ranges. 

4. Violattons of Part 175 regulaUons. 

which establish particular requirements 

for air carriers and other aircraft 

operatora, are contained in a separate 

matrix. However, such operators often 

offer Hazmat for air transportaUon as 

well as accept and transport It As such, 

the operator may be liable for violattons 

as a business enttty wldiln the main 

Matrix as well as for the specific Part 

175 violattons. 

i n . Impact of Other' Statutoty Fadors 

The Federal hazardous material 

transportatton law also requires 

consideratton of a violator's ability to 

pay a civil penalty, the impact of the 

civil penalty on the violator's ability to 

\ ^ 

r 

\X C^^ 
Federal Reglster/Vol. 64. No. 76/Wednesday, April 21, 1999/Riiles and RegulaUons 19447 

continue to do bushiess, and other 

jnatters that Justice requires. 

Consideration of these factors may 

result In adjustment of the 

recommended civil penalty calculated 

in Section H In situations where the 

agent or attorney Is in possession of 

mitigating Information, such as inability 

to pay the reconunended dvfi penalty or 

corrective action taken, reduction of the 

recommended penalty may be 

appropriate. Mitigating information 

should be suifidentty reliable, 

uncontrovcrted, and documented In 

order to support reduction of the 

recommended civil penalty pricx- to 

issuing the Notice of Proposed Civil 

Penalty. 

A. Abilit y To Pay/Continue i n Business 

Historically, the FAA has considered 

these factors after the Issuance of the 

Notice of Proposed ClvU Penalty due to 

the absenc:e of reliable financial 

Information on which to base a 

reduction prior to the Issuance of a 

Notice. This Sanction Guidance 

recommends that the special agent make 

efibrts to obtain reliable Infonnatton. 

regarding thfi violator's size and 

financial condition for review prior to 

the Issuance of a Notice. This 

information will be transmitted to the 

. legal office for consideration. It is 

recognized that It may not always be 

possible for the special agent and/or 

attorney to obtain reliable financial 

toformation on a particular respondent 

ttiat financial circumstances change and 

ttiat Information may be provided after 

the issuance of the I^otiCe that may 

warrant further consideration of a 

respondent's abUlty to pay. 

1. The investigating agent will attempt 

to Include financial Information as an 

exhibit hi the EIR It Is anticipated that 

this information, if available, will be 

obtained from reliable financial data 

bases. Finandal documentation should 

Indude. Init need not be limited to, 

information concerning the violator's 

corporate structure, business adcbess. 

ofikers, number of employees, and 

grass revenues. 

2. The investigating agent provides a 

statement or comment with reaped to 

the financial information obtained liut 

ordinarily does not evaluate the 

financial concUtton of a respondent with 

resped to its ability to pay a proposed 

dvll penalty. The Investigating agent's 

statement should encompass areas such 

as the ntimber of emplojnees. gross 

revenues, and nature of business of the 

violator. 

3. FAA legal counsd reviews the 

financial information provided in the 

EIR and evaluates its suCRcfency and 

relevance'to the reconunended dvfi 

penalty. L^al counsel may determine If 

more current informatton exists 

concerning the financial condltton of a 

respondent and If that infonnatton 

substantially differs bom the 

Information available at the time of 

preparation of the EIR. If there is a basis 

fordetermlnii^g that the recommended 

sanctton is inappropriate Ijased upon 

the financial information provided in 

the EIR. the recommended sanction Is 

adjusted prior to issuance of the Notice 

of Proposed CivU Penalty. This is a 

preliminary consideration of a 

company's abUlty to pay. As such, preNotice acUustment of a recommended 

CivU peiudty does not predude further 

MATRIX AND DEFINITIONS 

[Figure 1] 

consideration of a respondent's 

financial claims after issuance of the 

Notice. 

4. If legal counsd determines that a 

respondent qualifies as a small business 

entity, counsel may consider that status 

under the SmaU Business Regulatory 

Enforcement Fairness Act (SBREFA) 

with resped to the appropriateness of 

the recommended civil penalty. A 

respondent's status as a small business 

entity may be considered tn conjunction 

with analysis of the statutoty fadora. 

B. Corrective Action 

The most common "ottier matter" that 

the FAA takes into consideration is 

correcttve action. Corrective action that 

results in mitigation Is remedial actton 

that exceeds the minimum legal 

requirements. The prlnuuy factors In 

determining die appropriate amount of 

penalty ledudlon are the extent and 

timing of the correcttve actton. In other 

words, mltlgatton is determined on the 

basis of how much correcttve actton was 

taken and how quicldy the actton was 

taken. Systemic change Intended to 

prevent future violations should be 

given greater consideratton. SlmUarly. 

correcttve actton tliat commences upon 

the violator's first notice of the violation 

ordlnaiUy Is given greater credit than 

corrective action that commences only 

after the Notice of Proposed CivU 

Penalty has been Issued. 

MlUgatton of a recommended clvU 

penalty based upon corrective action 

should be^referenced in the Notice of 

Proposed ClvU Penalty so that the 

respondent is on notice that credit 

alreacfy has been given for said action. 

Offense categories A IndMdual B. Business entity 

C. Business entity 

ttiat uses or handles Hazmat In 

the course of business 

D. Business entity 

that regularty offers, aoceuls, or 

transports Hazmat 

. Declared Shipment 

1. Shipping Papers , 

2. Ubela .„ 

3. Markings » 

4. Packaging 

5. Tralnh^ 

6. Emerg. Response 

7. Release Into Environ 

8. Other , „ 

, Undeclared Shipment Within Hazmat Quantity UmltaKons: 

1. Shipping Papers „ 

2. Ubels 

3. Markings 

4. Packaging _ „.... 

5. Training .„ 

6. Emeig. Response 

7. Release Into Environ 

II fXhnr 

250-500 

2SO-600 

250-500 

250-600 

250-500 

250-600 

250-600 

250-1,000 

250-1,000 

2SO--1,000 

250-1,000 

2SO-1,000 

250-1,000 

9Rn-i nnn 

250-1.000 

250-1.000 

250-1,000 

250-1,000 

250-1.000 

250-1.000 

250-1,000 

250-1,000 

1,500-7,500 

1,500-7,500 

1,500-7.500 

1,500-7,500 

1.50O-7.500 

1.500-7,500 

1.500-7,500 

1 nwi_7i:nf\ 

600-2,000 

500-2,000 

500-2,000 

500-2,000 

500-2,000 

500-2,000 

500-2.000 

500-2,000 

2,500-10.000 

2,500-10,000 

2,500-10.000 

2,500-10.000 

2,500-10.000 

2.SOO-10.0DO 

2,500-10,000 

9 (;niv_'in nnn 

1,000-6,000 

1,000-6,000 

1,000-6,000 

1,000-5,000 

1,000-5,000 

1,000-6,000 

1.000-5,000 

1,000-5,000 

5,000-12,000 

5,000-12,000 

5,000-12,000 

5,000-12,000 

5/X}O-12,000 

5,000-12,000 

5,000-12,000 

BnfVl--lonnn 

C\! 

c 
19448 Federal Reglster/Vol. 64. No. 76/Wednesday. April 21. 1999/Rules and Regulations 

MATRIX AND DEFiNmoNS—Continued 

[Figure 1] 

Offense categories A IndivMual B. Business entity 

C. Business enttty 

that uses or handles Hazmat in 

the course o1 business 

D. Bus^iess entity 

ttiat regularty offers, eoeapis, or 

transiwris Hazmat 

III. Undeclared Shipment Hazmat Forbidden on. or exceeds 

qty nmilB for. Passenger Aircraft: 

1, Shipping Papers „ „ , 

Z labels...... „ 

a Markings _ _ . 

4. Packa^ng 

5. TraMng _ .,....,., 

6. Bmerjr. Response 

7. Release Into Environ „ _. 

8. Olher „ 

IV. Undeclarsd Shipment Foibklden on. or exceeds qty HmiU 

for. All Aircraft: 

1. Shipping Papers 

2. Labels , 

3. Markings 

4. Packaging _ 

5. Training 

6. Emorj. Response : , 

7. Reloaso Mo Environ _ 

B. Other 

V. Intentional or Deliberate VhjiaUon 

500-6.000 

500-6,000 

500-6,000 

SOO-6,000 

soiwiodd' 

500-6,000 

600-6,000 

500-27,500 

5D0-Z7.S00 

500-27,500 

500-27.500 

500^27,560" 

500-27,600 

500-27,500 

Consult Legal 

5,000-16,000 

S.000-15,000 

5.000-15.000 

5.000-15.000 

5.00O-15.O00 

6.000-15,000 

6,000-15.000 

5.000-16,000 

7,500-27.500 

7,500-27,500 

7,500-27.500 

7,500-27.500 

7,500-27.500 

7.500-27.500 

7.G00-27.60O 

7^600-27.500 

ConsiA Legal 

7.500-20,000 

7.500-2O.000 

7.500^20,000 

7.500-2O.0OO 

7,600-20.000 

7.600-20,000 

7.600-20.000 

7,500-20,000 

10,000-27,500 

10,000-27,500 

10,000-27,500 

10,000-27,500 

10,000-27,500 

10.000-27,500 

10,000-27.500 

10,000-27,500 

Consult Legal 

10,000-27,500 

10,000-27,600 

10,000-27.500 

104100-27.500 

10,000-27.500 

10,000-27,500 

10,000-27.500 

10.000-27.500 

15,000-27.500 

15,000-27.500 

15,000-27.500 

15,000-27.500 

15,000-27,500 

16,000-27.500 

15j00O^27,50O 

16,000-27.500 

Consult Legal 

Air carrier and otiier afrcrafl operator vIcAalions 

E. Group I & II air 

carrters and other 

aircraft operators 

F. Qroup III & IV 

air canters and 

ottier airerafl operators 

• Failure to comply with Parts 171,172, or 173 requirements of the HMR as an offeror of Hazmat..-. 

Improper accepianca of Hazmat for air transporlatkin (i.e., quanUly, labeling, marking, padcaging, anil 

shipping papers) See 43 CFR 175.30(a) (1)-(4)i -.. 

FaOure to Insped Hazmat shipment properly. See 49 CFR 175.30 (b). (c), (d), (e) -. 

improper storagefescurlng of Hazmat aboard almBft............ 

Failure to provide Hazmat traNng, mainlain records of training, or meet nilnlmum lequlrBmenls f<jr 

Hazmat training ..........._...............-......,..... ........................—.—. . — _. 

Faihira to nofi^ FAA property of biddentMlscrepancies in Hazmat shipment „ 

Failure to provtde notice to the pikit-ln-command ....... — — . 

Other Part 175 violations -

{') 

S.000-;?7.500 

10.000-27.500 

10.000-27,500 

10.000-27.500 

5.000-16,000 

5,000-15,000 

6,000-16.000 

( 

2.50O-15.O00 

5,000-15.000 

5,000-15.000 

5,000-15.000 

1,000-S.OOO 

1,000-6.000 

1.000-5.000 

1 Use main Matrix. 

Definitions 

(a) Air Carrier and Otiier Aircraft 

Operator Croups (I. B, m, /VJAIr 

carriers and other aircraft operators are 

divided Into two categories for purposes 

of deterndning an apfwopriate sanction. 

These categories track the air carrier 

groups established In FAA Order No. 

2150.3A, Appendix 1, Compliance/ 

Enforcement Bulletin 92-1, but also 

includes any operator of an aircraft that 

is operated "in commerce" as defined In 

the Federal hazardous materials law, 

including Part 129 Foreign Air Carriers, 

Part 125 Operators, and Part 91 

Operatois. Group I is comprised of air 

carriers and other aircraft operatois with 

^ua l operating revenue of 

; 100,000.000 or more. Group U is 

comprised of air carriers and other 

aircraft operators that hold Part 121 

certificates or have 50 or more pUots or 

ooerate 25 or more aircraft, wldi annual 

operating revenue of less than 

$100,000,000. Group IH Is comprised of 

air carriers and other aircraft operators 

that do not meet the criteria for Group 

n with (1) 6 to 49 pUots, or (2) 6 to 24 

aircraft (Sroup IV is comprised of all 

other air carriers or aircraft operators 

not meeting the criteria for Groups I, II, 

orm. 

(b) Business Entity—The violator is a 

business, corporation, partnoship. S\AS Coiporation. sole proprietor, 

association, or ary type of commercial 

entity. An indivlcfual who offers a 

hazmat shipment In air transportation in 

the course of his/her self-owned 

business falls into this categoty. 

Indudes all entitles defined under the 

HMR's definition of "person," (49 CFR 

171.8) with the exception of an 

inilividual as defined herein. 

(c) Business Entity that Regularly 

Offers. Accents, or Transoorts 

Hazardous Materials In the Course of its 

Business.—A ixianufacturer or 

distributor of Hazmat foils into this 

categoiy. A freight forwarder would also 

fall into this category. The aspect of 

"regularly" ofiierJng covers a business 

entity that offera Hazmat with some 

antidpated fiequency or purports to do 

so, e.g.. a catalogue company that offers 

hazaidous matoial to Its customers 

wotdd faU Into this categoty. even 

though its actual sale or transportation 

of the Hazmat Is infrequent or limited. 

(dO Business Entity that Uses, Handles 

Hazmat in the Course of Its Business— 

This categoty encompasses the btislness 

that utUizes Hazmat in its business but 

does not offer It for transportaUon on a 

regular basis, as described above. For 

example, a manufecturo' of a nonHazmat produd that uses Hazmat in the 

manufacturing process could &U Into 

this cateeorv. It must be established that 

xT) X 

CJ 

I ;' 
Federal Reglster/Vol. 64, No. 76/Wednesday, April 21. 1999/Rules and RegulaUons 19449 

the company ordinarily does not ofi^er 

he Hazmat it utilizes for transportation, 

and the sfiipment In this instance 

represents an Isolated inddent. This 

type of business is held to a higher 

standard than the business entity that 

has no regular Involvement with 

Hazmat The described business entity 

receives the subjed hazardous material 

in transportatton and uses it In its 

business; thus. It Is dearly on nottce of 

the hazardous nature of the material and 

the regtdatoty requirements to which 

the Hazmat Is sub)ect 

(e) Declared Shipment—A declared 

shipment, for purposes of this matrix 

only, is one that compiles with one or 

more of the communlcattve 

requirements of the HMR, i.e.. it has 

markings, labels, and/or partlaUycorred shipping papers. A package that 

has shipping papers that declare the 

contents as hazardous material but is 

otherwise not marked or labeled falls 

Into this categoiy. Similarly, a properly 

marked and labeled package that lacks 

shipping papera also falls Into this 

categoty. A case falls Into this categoty 

where diere Is clear indlcatton that the 

offeror made some attempt to give 

nottce of thd hazardous nature of the 

'-^ipment 

; (f) Forbidden or Exceeds Quantity 

Limits for Passenger Aircraft-A 

shipment falls into this categoiy if the 

quantity of Hazmat per package exceeds 

die quantity limitations for passengercarrying aircraft or if the particular 

hazardous material is fotbidden to air 

transportatton on passenger aircraft 

circumvent those requirements. For 

example, an offeror who places a 

properly marked and labeled Hazmat 

shipment along with properly 

completed shipping papers, into an 

overpack marked as "printed material.' 

(g) Forbidden on or Exceeds Quantity has committed an intentional or 

Limits for All Alrcra^A shipment will 

fall into this cat^oty If the quanttty of 

hazardous material per package exceeds 

the allowable amount for bodi passenger 

and cai^go aircraft or the Hazmat is 

absolutely foibldden In air 

transportation. 

(h) Hazmat—A "hazardous material." 

as defined In 49 CFR 171.8. Includes 

and Is Interchangeable with the teim 

"dangerous goods. " as used In the 

International ClvU Avlatton 

Organization (ICAO) Technical 

Instructions. 

(0 Individual—An individual who 

offers a shipment of hazardous material 

in his/her personal capadty without any 

business purpose or as part of a 

conunerdal enterprise on die part of the 

individual. 

(1) bitoitional or Deliberate 

Vldbtian—A shipment falls into this 

categoty when there is evidence that the 

offeror, acceptor, air carrier, or aircraft 

operator had knowledge of the 

requirements of the HMR and willfully 

circumvented or attempted to 

RISK CATEGORIES 

[Figure 2] 

deliberate vlolatton. In this type of case, 

the investigating agent shaU consult 

with FAA legal counsel and fbUow 

agenqy guidance for potential criminal 

violations of the HMR. 

(k) Undeclared Shipment—This is a 

shipment that has no Indication of Its 

hazardous material contents and/or no 

Indlcatton that the oB'eror 

communicated the hazardous nature of 

the shipment's contents to peisons who 

accept or transport 

J (0 Within Hazmat Quantity 

Limitations—The amount of hazardous 

material is within the quantity 

limitations per package as established in 

die S 172.101 Table (49 CFR 172.101) for 

the type of aircraft on vMch the 

shipment traveled.-Por example, if the 

shipment was offered for transportatton 

on a passenger aircraft, the quantity of 

hazaidcnis material was within the 

estebllshed limit for transportation by 

passenger aircraft. If the shipment was 

bff'aed fn* transportation on a caigo 

aircraft, the quantity llmltetions for 

cargo aircraft apply. 

Category "A" (Maximum Weight) 

Category "A" materials are materials that wtien released In the oontines ol an abcian can potenttaHy have a catastrophk: aflect on an akcraffs abifity to continue safe fflgM, resulting In a crash or emergency landing causing bijury or death to passengars and ffightcrsw, as wen as 

persons on the ground. 

Class 1 Explosives: DMston 1.1, 1.2, 1.3. 

Class 2 Comprsssed Gases AN 2.1,2.2 wHh Subsidlaiy Risk 5.1 and A» a s PiH Ztanes A-D. 

Class 3 RammaUe Lk|idds PG I, II, and (PIH). 

Qass 4 Division 4.1 Flammable SoHds PQ I, 8i (Matehes). 

Division 4.2 Spontaneously Combustible Materials PQ I (Pyrophoric). 

Division 4.3 Dangerous When Wet PG L 

Class 5 DMskNi 5.1 QxMUng UquMs and SdMs PG I, II, e.g., 'Y^iemteal Oxygen Generators". 

IJivlston 5.2 Otgante Peroxides PQ II (Type A B, C, or D). 

Class 6 .. DMskxi 6.1 Poisonous Uqukis PG I (PIH). 

Class 7 Cargo Aircraft Only QuanHlles on Passenger Aircraft. 

Class 8 I Corrosive Material UquM PG I and (PlhO. 

FiMbkkien Materials (See 49 CFR 173.21 & ICAO Teduricai InstmcUons). 

Foitikfclen Hazmat listed In Dangerous Goods Table 49 CFR 172.101. 

Categoty "B " (Moderate WelghQ 

The materials listed In Categoty "B" are mateiials Ihal may not pose an Immediate threat to ttie safety of a Hlght but can causa dealh or Injury to persons dua to unintended releases in aircraft caUn areas, and potential damage to airoraft structures over a kxiger perkxi of tme due 

to undisooveied rdeases on alreraft stiucluFal components. 

0' \ ^ b 

Class 1 

Class 3 

Class 4 

I 

Class 5 

C^ss 6 

DMston 1.4, ^JS. 1.6, Al Compatlbllity Groups. 

PG III Flammable Liquids. 

Division 4.1 Flammable Solids P6 II, III. 

Division 42 Spontaneously Combustible Materials PG III. 

OMsion 4.3 Dangerous When Wet PQ II, III. 

Division 5.1 QxMlzIng UquMs or Solids PG IN. 

DiviskNi 5.2 Organic Peroxkies (Type E. F, G). 

Division 6.1 Poisonous UquMs PG 1. II (NON-PIH). 

DMston 6.2 Infectious Sulistances. 

^ 

4 

^ \ 
19450 Federal Register/Vol. 64, No. 76/Wednesday, April 21. 1999/Rules and RegulaUons 

RISK CATEGORIES—Continued 

[Figure 2] 

Glass 7 „ 

Class 8 

Radioactive Materials. yeUow label III, yelkw label II, and white label L 

Uqufcia PQ II, III Solkls PG 1, II, HI. 

Categoiy ^'C (Minimum Weight) 

The materials Hsted In Categoty "C" are materials tiiat present the least amount of risk to ttie transportatton system. 

Class 2 

Class 6 

Class 7 

Class 9 

2JZ Nonflammatrte Gas. 

OMsfcm 6.1 Packing Group lit 

Al ottier RAM (LSA. LTD QTY. hislniments and Aittdes). 

Mtscellaneous Dangerous Goods (ORM-0 and Consumer Commodity. 

Note: This guidance Is not Intended to raplaoe the experienced Judgment to a spedal agent who is oonvhiced. based on ttie evMence and 

facts of a case, that ttie tajlure of an air canter, shipper, freight forwarder, or passenger to fplkiw estatiHshed regtdaUons has posed a risk to 

aviaSon safety. 

Issued to Waslilngton. DC on April 14, 

1999. 

Jane F. Garvey. 

Admltdstzator. 

[PR Doc. 99-9983 Filed 4-20-99; 8:45 am] 

MUMO CODE 491»-1»-M 

SECURfnES AND EXCHANGE 

COMMISSION 

17 CFR Parts 202, 240, 242 and 249 I- Background 

FOR FURTHER INFORUATKN CONTACT: 

Elizabeth King, Senior Spedal Counsel, 

at (202) 942-0140. Constance Klgghis. 

Special Counsel, at (202} 942-0059. and 

Kevin EhrUch. Attorney, at (2029 942-

0778, Division of Market Regulation, 

Securities and Exchange Commission. 

4S0 Fifth Sheet N.W.. Washhigton. D.C. 

20549-1001. 

SUPPLEMENTARY INFORMATION: 

[Release Na 34-41297; File No. S7-12-9B] 

RIN3235-AH41 

. RegulaUon of AHematlva Trading 

Systems : Technical Annendment 

AGENCY: Securities and Exchange 

Commission. 

ACTION: Final rule; technical amendment 

and revised compliance date. 

SUMMARY: The Securities and Exchange 

Commission Is modifying the 

compUance dates for Rule 301 (b)(3) and 

making a technical change to Rtde 

202.3. These and other rules and rule 

amendments relate to the regulatton of 

alternative tradtog systems and 

exchanges and were published on 

December 22.1998 (63 PR 70844). The 

effective date for the other rules and 

amendments published in 63 FR 70844 

remains April 21.1999. except for the 

effective date for S§242.301(b)(5)(l)(D) 

and (E) andS£i242.301(b)(6)(0(D) and 

(E). which remains April 1. 2000. 

DATES: Effective Date: April 21,1999 for 

amendment to § 202.3. 

Compliance Date: Alternative trading 

systems must comply with 

§242.301(1:4(3) with respect to Uie 50 

securities listed In Schedule A by 

August 23.1999; with respect to the 

>ecurities listed on Schedules A and B 

oy September 28.1999; with respect to 

the securities listed on Schedules A, B 

and C by April 25. 2000; and with 

respect to all securities by June 20, 

On December 8.1998. the Securittes 

and Exchange Commission 

("Commission") adopted new rules and 

rule amendments to allow altemattve 

trading systems to choose whether to 

register as naUcmal securittes exchanges, 

or to register as brbker-dealeis and 

comply with addlttonal requirements 

under Regulatton ATS, depending on 

their acttvltles and trading volume.* The 

effective date for most of Uiese new 

rules and rule amendments is AprU 21. 

1999. The Commission steted In the 

adopting release that prior to April 21. 

1999. it would publish a list of those 

securities with resped to which 

alternative trading systems must comply 

with Rule 301 (b)@) on AprU 21.1999 

and those securities with respect to 

which alternative trading systems must 

compfy with Rule 301 (b)(3) on August 

30.1999. Rule 301(b)(3) requires an 

alternative trading system to provide to 

a national securities exchange or 

national securities assodation. for 

indusion in the public quotetion 

system, the prices and sizes of Its best 

priced buy and sell orders;, that aie 

displayed to more than one person. In 

eadi covered security in which the 

alternative trading system represents 

5% or more of the total trading volume.^ 

• SecurlUes Exchange Act Ilelease No. 49760 

(Dec. B. 1998). 63 FR 70844 (Dec. 22.1998). 

> 17 CFR 242.301 (b)(3). For purposes of 

RegulaUoiu ATS. a "covered securi^" Includes all 

exdiange-llsted, Nasdaq MM securiUes. and Nasdaq 

Small (^p securities, olher than debt and 

n. Delay of (he Compliance Dates for 

Rule 301(b)(3) 

One major altemattve trading system 

has Indicated that it wUl be unable to 

comply with the requirements of Rule 

301 (b)(3) by the original compliance 

dates without putting the operatton of 

Its system at serious risk of failure. Thie 

operattonal CaUure of a major altemattve 

trading system could inteifere with the 

markete as a whole. Accordingly, the 

Commission bdleves it necessaty to 

adjust the compliance dates for Rule 

301(b)(3) as foUows: 

August 23.1999: Compliance with 

Rule 301 (jo){3j with resped to the 50 

Nasdaq securities listed on Schedule A. 

atteched In the appendix. 

September 28.1999: Compliance with 

Rule 301 (b)(3) for the 50% of Nasdaq 

securittes Usted on Schedtdes A and B, 

atteched In the appendix. 

April 25.2000: CompUance with Rule 

301(b)(3) for die 75% of Nasdaq 

securittes Usted on Schedules A. B. and 

C. attached to the appendix. 

June 20. 2000: Compliance with Rule 

301(b)(3!) for aU Nasdaq securiUes. 

Schedules A, B. and C were created 

by ranking aU covered securities traded 

on Nasdaq by ttieir Januaty 1999 

volume, and toducUng an equal number 

of sedirittes from each dedle. Some 

securities that were not traded on 

Nasdaq in Januaty 1999 may commence 

trading on Nasdaq subsequendy. 

Alternative trading systems may wait 

untU June 20,20OO to comply widi Rule -^ -

301 (b) (3) widi resped to these (% 

securittes. 

AU other compliance dates for the 

rules and rule amendments adopted last 

December remain the same. The 

Commission encourages those 

alternative trading systems that are able 

to comply witii Rule 301 (b)(3) on AprU 

21.1999 to do so. 

X^ 

^ K 

CFR 240.11Acl-l(a)(6): Rule 300(e). " CFR 
U.S. DEPARTMENT OF TRANSPORTATH. 

FEDERAL AVIATION /ADMINISTRATION 

HAZARDOUS MATERIALS 

EIR Number: 2005EA700553 

Date of Violation: 02/01/2005 

Agent: FERNANDEZ 

Regulations Cited: 49 CFR, 173.448, 175.3, 175.81(a) 

Final Sanction: $12,000 

Final Date: 12/13/2005 

C. 

. ^ 

Interviewed/Reviewed On September 11. 2007 At Portland. Oregon 

Special Agent Donald A. Stiger ^A4- FfcNo. 2007NM700156 Ift 

FAA Form 1600-32-1 (9-86) FOR OFFICIAL USE ONLY 

(Public availability to tie 

determined under 5 U.S.C. 552) 
U.S. DEPARTMENT OF TRANSPORTATK 

FEDERAL AVIATION ADMINISTRATION 

HAZARDOUS MATERIALS 

RECORD REVIEW: Violation History Computerized Printouts from the 

Federal Aviation Administration (FAA) Investigations Systems, 

maintained by the Aviation Data Systems Branch (AFS-620), Mike Monroney 

Aeronautical Center, Oklahoma City, Oklahoma. 

The review provided substantially as follows: 

On September 11, 2007, a review of the violation history data 

system revealed 23 closed Enforcement Investigative Reports 

(EIR's) pertaining to violations of the Hazardous Materials 

Regulations (HMR) identifiable with FEDERAL EXPRESS, INC. 

(FDEA), within the last three (3) years from the date of this 

current enforcement case. Of the 23 cases, 18 were closed 

administratively through issuance of Warning Notices/Letters of 

Correction. The remaining case was closed through issuance of 

a civil penalty as indicated: 

EIR Number: 2006AL700048 

Date of Violation: 06/15/2006 

Agent: DIETZ, Jeffery 

Regulations Cited: 49 CFR, 171.2(e) 

Final Sanction: $8,000 

Final Date: 02/08/2007 

EIR Number: 2006CE7000007 

Date of Violation: 10/27/2005 

Agent: SCHAUFLER 

Regulations Cited: 49 CFR, 175.30(a)(2) 

Final Sanction: $5,000 

Final Date: 09/26/2006 

EIR Number: 2005NM700046 

Date of Violation: 12/15/2005 

Agent: EICHENBERG 

Regulations Cited: 49 CFR, 175.3, 175.30(a)(3), 178.3(a)(1) 

Final Sanction: $3,000 

Final Date: 12/14/2005 

EIR Number: 2005CE700079 

Date of Violation: 06/23/2005 

Agent: UMLAND 

Regulations Cited: 49 CFR, 175.3, 175.30(a)(2) 

Final Sanction: $3,000 

Final Date: 10/24/2005 

Interviewed/Reviewed On At 

By File No. 2007NM700156 

FAA Form 1600-32-1 (9^6) FOR OFFICIAL USE ONLY 

(Public availability to be .^'' 

determined under 5 U.S.C. S52) i;i 
Description 

I SD-L Shippers Declaration for DG - blank 

<^ SD-L Shippers Declaration for DG - Dow to Pfizer 

^ SD-L Shippers Declaration for DG - Custom Pak to Milgard 

If Ltr dtd 20070927 FAA to Littlejohn - 2 pp 

^ Ltr dtd 20071019 Littlejohn to FAA - 2 pp 

(^ Tech Review dtd 20080125, resin solution, flammable 

-/ Tech Review dtd 20080125, flammable solid, organic, n.o.s 

^ Tech Review dtd 20080125, Isopropyl alcohol 

^ Lrg CB box with ballpt markings 

/ l)Sma\\ CB box with UN label other markings 

Ij Enforcement Hx of R 

/>Mtl Safety Data Sheet eff 20090127 - A C Tech - 6 pp 

/3Mtl Safety Data Sheet - Glass Adhesion Promo - 8 pp 

/if Mtl Safety Data Sheet - Dow Corning - 8 pp 

O N o exhibit 

/6N O exhibit 

(^ No exhibit 

I'T^ NO exhibit 

/(^No exhibit 

-T^hipping label in clear envelope 
# Description 

R-1 DG acceptance checklist 
Scott A. Mugno 3670 Hacks Cfoss Road Telephone 901.434.9587 \ 

Managing Oifeclor Building G, 2nd Floor Fax 901.434.9771 

Corporate Safety Memphis, TN 38125-8800 samu0no@fede)(.com 

Health and Fire Prevention 

Express 

January 8, 2008 

Mr. Theodore L Wllike Associate Administrator 

Office of Hazardous Materials Standards 

Pipeline and Hazardous Materials Safety Administration 

Attention: PHH-1 

U.S. Department of Transportation 

1200 New Jersey Avenue, SE Building, E 21317 

Washington, DC 20590 

RE: Petition for class change of Other Regulated Materlals-D (ORM-D) 

Dear Mr. Willke: 

FedEx Express is the world's largest express transportation company and transports more dangerous 

goods shipments than any other air carrier. FedEx Express is recommending the elimination of the 

Department of Transportatton (DOT) 49 Code of Federal Regulations (CFR) §173.144 class Other 

Regulated Materia!-D (ORM-D) and, instead have these materials assigned to class 9 in accordance 

with other world wide recognized regulations. FedEx Express contends the current class ORM-D 

identification poses a safety concern as this material is inadvertently offered with the minimal 

requirements for ground transportation. Further, even when properly prepared for air transportation it 

is difficult to recognize for inspection and acceptance. 

Issue 

The proper shipping name "consumer commodity" is ambiguous. It does not necessarily indicate an 

item is regulated. ORM-Ds do not require any specification package marking, hazard or handling 

labels, UN or ID number. ORM-Ds only require a shipper's declaration when offered for air 

transportation. Even when the marking is offered in a label form (small blue square) it does not 

communicate by shape or color any hazard awareness. 

While shippers and ground carriers of class ORM-D may not have any acceptance problems they also 

have no inspection requirements identifying same. Such a carrier could have an entire tractor trailer 

toad of ORM-D freight without any manifest, placarding or shipping paper requirements. The 

packages are only required to be marked with "Consumer Commodity and ORM-D" somewhere on 

the outer package. From a practical standpoint, the freight is treated and transport:ed as non 

hazardous. 

As you know, when offered for air transportation the word "Air" must be added to the ORM-D marking 

and a shipping paper provided. This is a recognition problem for air carrier personnel. It is more 

common where a shipper offers an ORM-D prepared for ground transportation for air carriage. Many 

shippers mistakenly think there are no additional requirements. Further, shippers reuse boxes 

marked Consumer Commodity, ORM-D, however, the contents may or may not be regulated for air 

transportation. 

The Federal Aviation Administration continues to hold air can"ters and shippers accountable for the 

acceptance and offering of packages with minimal markings when offered for air transportation. Thus, 

these difficult and challenging responsibilities are left up to air carrier personnel to recognize this 

otherwise unregulated freight before placement on an aircraft 

^ ^ • 

A 

/ 
Additionally, we are both aware of the proposed UN recommendation concerning limited quantities 

and consumer commodities for a unique label and marking when these items are offered for air 

transportation. If adopted, the problem and confiision of class ORM-D prepared and offered for 

ground transportation and inadvertently transported by air, will remain. 

Recommended Change 

Handling and loading personnel are trained to look for standardized hazard class labels. With all the 

industrial maritings on packages today it is difficult for them to distinguish a marking in a rectangle. 

FedEx Express therefore recommends requiring the universally recognized diamond shaped hazancJ 

label, PHMSA should hannonize Consumer Commodities with the tCAO regulations wtiich require a 

class 9 label, an ID 8000 and the proper shipping name markings. This would increase the visibility 

and aid in the recognition of these packages. 

As you are aware, DOT at one time had classes ORM-A, B, C, D and E for certain hazardous 

materials. Classes ORM-A, B. C and E have been eliminated and or reclassed to other recognizable 

hammonized hazard classes. We are not aware of any problems or confusion since those changes 

were made In the DOT regulations. 

FedEx Express recommends PHMSA eliminate 49 CFR 173.144 class Other Regulated Material-D 

(ORM-D) and have these materials assigned to class 9 in accordance with other worid wide 

recognized regulations. We contend public safety will be enhanced for the carriage of these Items by 

all modes of transportation. Objection to titis recommendation should be minimal. FedEx Express 

notes that freight with class 9 labels have routinely moved by ground witiiout any confusion or 

problems. As an example, Dry Ice shipments transpori:ed by air and subsequently delivered by 

ground. Note- we are not recommending that these materials, once reclassed as class 9 be further 

regulated by ground than they cun-ently are. 

FedEx Express appreciates the opportunity to make this recommendation for change in the 

regulations. If you should have any questions concerning this recommendation or comments, please 

contact me or David Littlejohn, Corporate Safety Advisor, at (901) 434-9567. 

Think Safety, Act Safely, Be Safe, 

Scott A. Mugno 

Managing Director 

Corporate Safety, Health and Fire Prevention 

FedEx Express