UNITED STATES OF AMERICA DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, D.C.
IN THE MATTER OF MARTINAIRE AVIATION, LLC (Civil PenaltyAction)

FAA CASE NO. 2011SW700189 j FDMS FAA-2013-0040

Hearing Date: June 18, 2014 at Dallas, Texas [udge: The Honorable Richard C. Goodwin

MARTINAIRE AVIATION, LLC's POST-TRIAL BRIEF 

# RECEIVED AUG 

## i D 2014 

# HEARING DOCKETTable ofContents

I. INTRODUCTION 3 II. CITED REGULATION 5 Ill. THE PLEADINGS 11 IV. PENDING IN LIMINE MOTIONS 

### 14 

## v. ISSUES 

### 18 VI. ARGUMENT 

### 18 1. No Regulatory Violations of the Cited HMR Occurred 

### 18 2. A $206,550 Civil Penalty is Excessive, Unreasonable and Unwarranted 

### 19 VII. CONCLUSION 30

FAA Case No. 2011SW700189/FDMS No. FAA-2013-0040 MARTINAIRE AVIATION, LLC'S POST-TRIAL BRIEF 2MARTINAIRE AVIATION, LLC (hereinafter referred to as "Martinaire"), by and through its undersigned counsel, submits its Post-Trial Briefin this matter. I. INTRODUCTION The Federal Aviation Administration ("FAA"; "Complainant") has alleged that

on 12 occasions duringthe period from April through June, 2011, Martinaire violated Sections 175.33(a)(1), 175.33 (a)(l)(i) and 175.33 (a)(7) ofthe Department ofTransportation's Hazardous Materials Regulations ("HMR"). Specifically, based upon its review ofhundreds ofNotices to Pilot in Command (NOPIC's) in the "90-dayfile" maintained by Martinaire's dispatch office, Complainanthas alleged that Martinaire failed to properly complete seventeen (17) NOPIC's.l Complainant seeks an unprecedented $206,550 civil penalty. It is the largest civil penaltythat Complainanthas ever sought against any airline, large or small, for alleged NOPIC violations. This penaltyappears to be based in large part upon a novel regulatoryinterpretation for which there is no legal basis. Martinaire is a small, Addison, Texas-based on-demand cargo airline. It is a non-public limited liability company, having only 3 members and less than 90 employees. It currently operates 34 single-pilot aircraft-18 Cessna 208's (single engine, fixed landing gear) that it owns, 13 leased Cessna 208's and three Beech 1900's (twin engine)-under Part 135 ofthe Federal Aviation Regulations (FAR's). In 2011, when this case arose Martinaire's net profitwas $197,169 or a mere $12.64

1 There were 17 shipments that were listed on 12 NOPlC's. Some ofthe NOPIC's listed multiple FAA Case No. 2011SW700189/FDMS No. FAA-2013-0040 MARTTNATRE AVIATION, LLC'S POST-TRIAL BRIEF 3per flight. 2 Subsequentto 2011 and continuinginto the presentyear, Martinaire has been operating at a loss.3 Complainant argues that its decision to impose a $206,550 civil penalty should be given deference because: 1. The NOPIC's contained in the 90-day file were incomplete 

### or in error; 2. Martinaire violated the cited HMR's in notproviding full information to the pilot in command, thereby putting the pilots' well being atrisk4; 3. Martinaire (through its dispatch office) put the well-being ofnot onlyfirst responders, but "the public atlarge"S atrisk6; 4. Martinaire's prior violations, and a December 2013 inspection demonstrate that "its conduct ofviolating the

...(HMR's) is systematic" 7; and

2 The profitper flight computation is based upon average flight activity during 2011-2013 of approximately 1,300 flights per month.

3 Tr. 121:8-124:21.

4 Ignoring the fact thatthe pilots generated the NOPIC's concurrentwith their acceptance ofthe parcels and the accompanying coupons which contained all ofthe information that the NOPIC was designed to include (other than the date(s], flight number(s] and aircraft location(s] at which the parcels were loaded, which were already within the pilots' knowledge).

s Complainant's Post-Trial Briefat 5. This is the very first time that Complainant has suggested risk to the public at large.

6 Even though there is no regulatory or other legal requirementthat NOPIC's existto serve any emergency response need.

7 Complainant's Post-Trial Briefat 5. FAA Case No. 2011SW700189/FDMS No. FAA-2013-0040 MARTTNAIRE AVIATION, LLC'S POST-TRIAL BRIEF 45. Martinaire can afford to paythe penalty8

. Complainant's approach is overly simplistic. It not only convolutes the facts, the law and plain logic, butviolates both the law and established precedent. There is no dispute thatthe NOPIC's in the 90-dayfile, prepared by dispatch personnel based upon information called in bythe pilots, evidenced transcription or otherhuman errors. However, the fact remains thatthe pilots had all pertinent information at all times duringeach ofthe flights and the regulatory requirements were met. II. CITED REGULATION The cited HMR's provide: § 175.33 Notification ofpilot-in-command. (a) Except as provided in §175.10, when a hazardous material subject to the provisions ofthis subchapter is carried in an aircraft, the 

### operator ofthe aircraft mustprovide the pilot-in-command with accurate and legible written information as early as practicable before departure of the aircraft, which specifies at least the following: (1) The 

### proper shipping name, hazard class and identification number of the material, including any remaining aboard from prior stops, as specified in §172.101 of this subchapter or the ICAO Technical Instructions (IBR, see §171.7 of this subchapter). In the case of Class 1 material, the compatibility group letter also must be shown. If a hazardous material is described by the proper shipping name, hazard class, and identification number appearing in: (i) Section 172.101 ofthis subchapter, any additional description requirements provided in §§172.202 and 172.203 ofthis

s Notwithstanding any evidence ofsame and Mr. Buchanan's testimony thatthe average penalty for NOPlC violations is in the $30,000-$50,000 range (Tr. 58:8-16] and despite the fact that Complainant has never, ever sought a civil penalty for NOPlC violations in excess of $200,000 (Tr. 58:17-59:1]. FAA Case No, 2011SW700189/FDMS No. FAA-2013-0040 MARTINAIRE AVIATION, LLC'S POST-TRIAL BRIEF 5subchapter must also be shown in the notification. (7) The date of the flight

.... (emphasis added) Unlike most air carriers, which prepare NOPIC's and provide them to their flight crews, in Martinaire's case,justthe opposite occurs (Tr. 102:9-11). Martinaire's pilots, upon receipt ofa HazMat parcel from UPS or DHL, accompanied bya UPS- or DHL-prepared ticket containing all ofthe data specified in the abovecited HMR's (except for flight number and specific location upon which the parcel has been loaded on the aircraft) call the NOPIC information into dispatch9 Dispatch personnel transcribe this information onto a NOPIC form and insertthe form into the "90-dayfile". The pilots have all required NOPIC information (and the UPS and DHL tickets) before and duringtheir flights, and Complainantknows this. As Complainant's Mr. Buchanan testified: A There is a coupon generated by UPS that is provided to the pilot. Q So the-and this coupon has pretty much the same information that the Martinaire NOPIC form has. Correct? A Basic-yes. Q Okay. So basically whatthe pilot is doing when he prepares or she prepares the NOPIC for Martinaire is they're taking the information from the DHL coupon or the UPS coupon and basicallytranscribing it onto another form. A Onto a single document. Yes, sir. Q And then they fax that or call it in to dispatch. A That is correct.

9 Mr. Buchanan acknowleged that Martinaire's procedures were differentthan those utilized by most other carriers (Tr. 45:10-46:12), describing the Martinaire NOPIC as tbe pilot's note to himself (Tr. 46:9-12). FAA Case No. 2011SW700189/FDMS No. FAA-2013-0040 MARTINAIRE AVIATION, LLC'S POST-TRIAL BRIEF 6Q So the pilot-in-command, by virtue ofhis or her receipt ofthe

... coupon, alreadyknows what's on that airplane. A Yes 10 Q And with respectto the NOPIC irregularities

...those were the dispatch copies ofthe NOP!Cs. Is thatcorrect? A That is correct.ll Complainant's Mr. Klimas testified similarly, even referring to the pilotgenerated NOPIC as "a memo to self' (Tr. 102:15-16): Q

...And so the pilot gets a coupon which basically-prepared by DHL or UPS, which basicallyhas the very same information thatwould go in the Martinaire NOPIC form. A Outside ofthe location ofthe material on board the aircraft, is the same form-it's the same information. Q It's the same information. And ostensibly, it's the pilot who loads the airplane. Is that correct? A They do-they assist, and they monitor the loading. Q So the pilotwould knowwhere things are on his or her airplane. A Hopefully.1z The pilot copies ofthe NOPIC's are discarded after each flight. The NOPIC is intended to be used only by and for the benefit ofthe pilotin command-the very same pilot, who prepared the NOPIC, based upon information

::_o Notwithstanding this testimony, Complainant continues to capitalize on the "threat to the pilotwho may notknow what he's got onhis aircraft" (Tr. 42:17-19; Complainant's Post-Trial Briefat 4-5).

u Tr. 47:7-48:10.

12 Tr. 97:18-98:11. FAA Case No. 2011SW700189/FDMS No. FAA-2013-0040 MARTINAIRE AVIATION, LLC'S POST-TRIAL BRIEF 7contained in the UPS and D HL tickets, and who supervised the loading ofthe aircraft. As such itis difficult to imagine that any error in a NOPIC found in the 90- day file (long after each ofthe flights was successfully completed) would pose "a threatto the pilotwho may not know whathe's got on his aircraft" as Mr. Buchanan suggested (Tr. 42:17-19) and as asserted in Complainant's Post-Trial Brief (Complainant's Post-Trial Briefat 4). Moreover, contraryto what Complainant asserts (Complainant's Post-Trial Briefat 4), there is nothing in the HMR's, the FAR's, or any other regulation, any FAA Order or Handbook, or any other publicly available documentthat states thatthe NOPIC is or should be prepared for the benefit offirst responders inthe event ofan aircraft mishap. This is embellishment at its worst, convolutingthe law, the evidence and simple logic. As Mr. Buchanan testified: Q Is there anything in FAA publicly available documentation, opinions anything outthere which says thatthe NOPIC is to be used for assisting emergency responders? A There-was a National Transportation Safety Board recommendation, and that's whythe NOPIC was created. Ican't quote exactly whatthatwas. As a result ofthe Newburgh, New York, FedEx crash. Q Butfrom the FAA, is there any FAA publicly available documents that says thatthe NOPIC is to be used for emergency response purposes? A Nothing from the FAA. No, sir. Q So your testimonythat the NOPIC is to be used to assist emergency responders, that'sjustyour personal opinion? A That section ofthe regulations came out as an NTSB recommendation. Q Well, we're nottalking about NTSB recommendations. I'm talking aboutFAA policy. Is there FAA policy which says that NOPICs are to be used for FAA Case No. 2011SW700189/FDMS No. FAA-2013-0040 MARTINAIRE AVIATION, LLC'S POST-TRIAL BRIEF 8emergencyresponders? A Nothing from the FAA. No, sir. 

### Q Okays. And the NTSB, thatwhich you have stated, is simply a recommendation. A That is correct. Q It's notthe law. A Thatis correct.B Mr. Klimas testified similarly, onlybasinghis personal opinion on a PHMSA interpretation: Q Where in HRM 175.33 does it state that the NOPIC is to be used for emergencyresponse procedures or should be available for emergency responders? A It does not state that. Q Is (sic) there any FAA written opinions or publicly available information which states thatthe NOPIC is to be used for emergency response purposes? A There is a PHMSA letter ofinterpretation that alludes to-it states specifically, emergencyresponders, and being able to have that information in event ofan incidentQ And this is PHMSAA Pipeline and Hazardous Materials SafetyAdministration. Q Okay. But that's not an FAA document. A

.. .it's not an FAA document. Q Are pilots supposed to be familiar with PHMSA letters of interpretation? A I wouldn't expectthem to be necessarily.

13 Tr. 56:8-57:15. FAA Case No. 2011SW700189/FDMS No. FAA-2013-0040 MARTINAIRE AVIATION, LLC'S POST-TRIAL BRIEF 9Q Would you expect an air carrierto be familiar (sic) PHMSA interpretations? A !would. Q Is there anything in FAR 119 or 135 that requires a carrier to be familiar with PHMSA interpretations? A I don't believe so. Not in myexperience. Q Is there anything in Martinaire's general operating manual or GOM that requires thatthey be familiar with PHMSA interpretations? A I don'tbelieve so. Q Are there any FAA handbooks or orders that state thatthe NOPIC, in addition to serving as the notice to the pilot-in-command, is also to be used for emergencyresponse purposes? A Ihaven't read any.14 Likewise, Martinaire's Executive Vice President and ChiefOperating Officer, Alan Rusinowitz, who not only has been with Martinaire for some 14years, buthas had a 35-year aviation careerwith a number ofair carriers and aviation training companies, testified that he has never heard ofanyrequirementthat NOPIC's be prepared for first responders: 

### Q What is the purpose ofa NOPIC? A It's to provide the pilot-in-command the information ofwhat he is carryingthat maybe a hazard or potential danger. Q And have you dealt withthe hazardous materials regulations in your employmentwith Martinaire, or have you dealt with them in your employmentwith other air carriers and other entities in the aviation business? A With other air carriers also.

14 Tr. 98:14-100:14. FAA Case No. 2011SW700189/FDMS No. FAA-2013-0040 MARTlNAIRE AVIATION, LLC'S POST-TRIAL BRIEF 10Q Have you ever known ofa requirementin the HMRs that specify that NOP!Cs are to be used for first responders? A No sir. 15 III. THE PLEADINGS The essence ofComplainant's case is that during the FAA's comprehensive base inspection ofMartinaire onjuly 8, 2011, a review ofthe dispatch office's 90- day file (which consisted ofseveral hundred NOPIC's) revealed that 12 NOPIC's covering 17 parcels were incomplete or in error. This comprehensive inspection started earlyin the day. The FAA observed Martinaire's operations at Dallas-FortWorth International Airport, monitoring inbound and outbound flights, and then went to Martinaire's headquarters in Addison where FAA Special Agents reviewed Martinaire's HazMat training records and stores operations (Tr. 78:1-79:10). This inspection was going swimmingly16 until the NOPIC errors were found. While Martinaire fully admitted thatthe dispatch copies ofthe NOPIC's contained errorsP itdenied allegations ofviolation, challenged the appropriateness

15 Tr. 126:7-22.

16 Complainant's Mr.Klimas testified that Martinaire was "passingwith flying colors" until the NOPlC discrepancies were found (Tr. 95:1-4). 17 Martinaire's Answer is consistent with its August 2, 2011 detailed response to the FAA's Letter oflnvestigation ("LOI") (Exhibit R-1), in which Martinaire "stepped up to the plate"-- fully investigating the FAA's findings, cooperating with the FAA in its investigation, and implementing immediate corrective actions. There is no disagreementby Complainant as to the level of cooperation that Martinaire provided or the swiftness, comprehensiveness and effectiveness ofits corrective actions. Please see transcripts ofdepositions ofComplainant's Paul Klimas ("Klimas Depo.") and Bryan Buchanan ("Buchanan Depo.") previously lodged with the Court and Tr. FAA Case No. 20llSW700189/FDMS No. FAA-2013-0040 MARTINAIRE AVIATION, LLC'S POST-TRIAL BRIEF lland reasonableness ofthe proposed $206,550.00 civil penalty and raised the following affirmative defenses: 1. The sanction is unwarranted bythe facts, safetyin commerce and the public interest and is not only excessive, but, far exceeds policy, precedent and Complainant's own Sanction Guidance Table (First Affirmative Defense); 2. The Complainant's case, is unwarranted and withoutbasis or jurisdiction in law or fact (Second Affirmative Defense); 3. Any and all alleged discrepancies were the product ofsimple human error, in violation ofMartinaire's own policies and procedures, and contraryto the training and guidance thatthe employees were provided and are in no wayindicative ofthe Company's regulatory compliance disposition. Employees have since received additional training. Moreover, Martinaire, in an immediate response to the matters giving rise to this case, revised and updated its HAZMAT Training Program, revised its standard NOPlC Form to be more "user friendly", mandated additional training not only for the personnel involved in these alleged incidents, but all flight operations, pilot and dispatch personnel, and implemented a program ofinternal daily audits ofall NOPIC's. Subsequent internal audits have shown that compliance has been achieved (Third Affirmative Defense);

FAA Case No. 2011SW700189/FDMS No. FAA-2013-0040 MARTINAIRE AVIATION, LLC'S POST-TRIAL BRIEF 124. Martinaire proactively mitigated any and all damage, counseling pilots, flight department and dispatch personnel in the interests of preventing recurrence; revised its HazMat Training Program; revised the NOPIC Form to make it more user friendly; and provided its personnel with additional training (Fourth Affirmative Defense); 5. Martinaire took all necessarycorrective actions to avoid repeated mishaps such that penalties are redundant and will not result in any increase in safety (Fifth Affirmative Defense). 6. Complainanthas compounded the alleged violations and sanctions in contravention ofFAA Order 2150.38, seeking excessive civil penalties and failing to take into consideration the considerable corrective action thatwas immediatelythereaftertaken by Martinaire. Moreover, to the extentthatthe FAA Ordertreats Martinaire as a Group II carrier, it is arbitrary, capricious and unenforceable. Specifically, Figure C-1 ofthe Sanction Guidance Table contained within said Order mandates thatthe Company be treated as a Group II carrier and accordingly be subjected to higher penalties than Group III or IV carriers. The sole reason for this is the number ofaircraft thatMartinaire operates, the majority of which have a maximum gross takeoffweight ofless than 12,500

FAA Case No. 2011SW700189/FDMS No. FAA-2013-0040 MARTINAIRE AVIATION, LLC'S POST-TRIAL BRIEF l3pounds 18

. However the Order and Table fail to accountfor the size ofthe aircraft ortheir payloads. Under the Order and Table, a carrier operating fewer, butlarger, aircraft, carrying far greater payloads, and far greater numbers ofhazardous materials shipments and generating substantiallygreater revenues, could be treated as a smaller carrier and be subject to lesser penalties (Sixth Affirmative Defense); and 7. Complainant's case is devoid ofany sense ofproportion, as during the period oftime covered bythe Complaint, Martinaire carried

some several hundred HAZMAT shipments, all withoutincident. The total number ofNOPIC's examined bythe FAA was several hundred, ofwhich only 12 were observed to have any discrepancies; as a small company (and a small business) operating small aircraft and having less than 100 employees the burden on Martinaire caused by a $206,550.00 penaltywould be insurmountable (Seventh Affirmative Defense). IV. PENDING IN LIMINE MOTIONS Several weeks prior to the hearing, Martinaire filed and served three Motions in Limine, to which Complainantneither responded nor opposed. By Order dated june 10, 2014, the Court advised thatthese Motions in Limine would be considered at hearing during deliberations on the issues under consideration. Although they

18 Martinaire's fleet includes three Beechcraft 1900/s with a gross takeoffweight of 16,600 pounds. However, Martinaire's entire fleet operates under Part 135. FAA Case No. 2011SW700189/FDMS No. FAA-2013-0040 MARTINA£RE AV£ATION, LLC'S POST-TRIAL BRIEF 14were not considered at hearing, Martinaire respectfully requests thattheybe considered 1 9 in the deliberations and disposition ofthis matter. Motion in Limine No. 1-Preclusion o{Evidence Concerning Calculation, Determination. Deliberation o{Penalty: Motion in Limine No. 1 soughtpreclusion ofevidence ofor relatingto Complainant's calculation, determination, deliberation or other reflection ofthe appropriateness or reasonableness ofthe sanction amount sought in this action--in essence, the very same thing that Complainant sought in its Motion for Protective Order filed and served on April4, 2013, and which the Court granted. While the Protective Order clearly states that "Respondent may probe and inquire into matters respectingthe agency's suggested civil penaltywithout compromisingthe policy," duringthe depositions ofComplainant's Persons Most Knowledgeablezo, Complainant's Counsel repeatedly instructed FAA witnesses notto answer any questions related to Complainant's "deliberative process" and notto provide any information that could explain whythe FAA was seeking an unprecedented penalty in this action.21 Complainant has notproduced any evidence refuting Martinaire affirmative

19 Motion in Limine No.2, which soughtto preclude testimonies ofpersons whom were not previously identified by Complainant as its witnesses and any expert or opinion testimony is now moot, inasmuch Complainant confined its case to the testimonies ofMessrs. Buchanan and Klimas who had been disclosed.

15 Copies ofthe transcripts ofdepositions ofMessrs. Buchanan and Klimas were submitted under cover of Martinaire's Transmittal ofExhibits, filed june 26, 2013, as Exhibits F and G. The original transcripts were also lodged with the Hearing Docket prior to hearing.

21 17 out of several hundred that were reviewed [Tr. 49:5-8). Indeed, a very small percentage ofthe hundreds ofNOPlC's contained in the 90-dayfile were found to have errors. FAA Case No, 2011SW700189/FDMS No, FAA-2013-0040 MARTINAIRE AVIATION, LLC'S POST-TRIAL BRIEF ISdefenses and has not produced evidence substantiatingthe reasonableness or appropriateness ofits sanction. There is no evidencethat this sanction is in accord with established law and precedent. Complainant has failed to explain how this exorbitantpenalty, the largest on record for a NOPIC violation, against a small business, havingfewer than 100 employees and operatingless than 35 small aircraft, will further promote air transportation safety. Complainant has not even given a hint as to how it used its sanction guidance to arrive at such an amount, particularlywhen the alleged discrepancies were contrary to Martinaire's own established policies, procedures and training and when Martinaire immediately responded to the FAA's concerns, taking appropriate, swift and comprehensive corrective actions. In short, Martinaire used every available avenue to obtain information into Complainant's "deliberative process" and has been denied that information. As such, Complainant's Post-Trial Brief (which does nothing more than attempt to justify an outlandish sanction to which Complainant insists itis entitled to substantial deference (Complainant's Post-Trial Briefat 2), should be stricken. Motion in Limine No. 3-Prec/usion o[Evidence Re: FirstResponders Motion in Limine No.3 sought preclusion ofevidence that HMR's NOPIC requirementhas been promulgated and exists for the purpose ofproviding assistance to first responders in the event ofan aircraft mishap. Complainanthas heretofore stated and athearing conceded thatthere is no such evidence. There is no regulatory requirementthatthe NOPIC be prepared for anyone
FAA Case No. 2011SW700189/FDMS No. FAA-2013-0040 MARTINAIRE AVIATION, LLC'S POST-TRIAL BRIEF 16otherthan the pilot in command. Although theymight conceivablybenefit from having such information, there is no regulatory requirementthat the NOPIC be prepared for or submitted to first responders. There are no written FAA opinions, handbooks, orders, advisory circulars or other publicly disseminated or publicly available information that states thatthe NOPIC, in addition to serving as a noticeto the pilot in command, is also to be used for emergencyresponse purposes. Messrs. Buchanan's and Klimas' testified to this attheir depositions (Buchanan Depo. 9:11- 19; Klimas Depo. 9:20-23 and 9:24-10:13), and testified similarly athearing.zz The United States Supreme Court placed an importantlimit on the deference courts should accord to a federal administrative agency's interpretation ofits own regulations in 

### Christopher v. SmithKline Beecham Corp.Z3 Invoking principles of "fair warning" and "unfair surprise," the Court held that deference does not apply, at least retrospectively, where an agency's "interpretation ofambiguous regulations [would] impose potentiallymassive liability on [a regulated entity] for conduct that occurred well before that interpretationwas announced." There has been no regulatoryreference, testimony or documents suggesting that Martinaire should have known ofa requirementto prepare NOPIC's to assist first responders.

22 See Footnotes 6 and 7 infra. ''No. 11-204 (June 18, 2012) FAA Case No. 2011SW700189/FDMS No. FAA-2013-0040 MARTINAIRE AVIATION, LLC'S POST-TRIAL BRIEF 17V. ISSUES Complainantfiled a Motion for Decision on june 17, 2013, asserting that there are no genuine issues ofmaterial fact. By Order datedjuly 8, 2013, theAdministrative Lawjudge granted the Motion for Decision as to the allegations and denied it as to the issue ofpenalty. As such, there are onlytwo issues to be adjudicated: 1. Did regulatoryviolations ofHMR Section 175.33 occur? and 2. Ifso, what, ifany, sanction should be imposed? VI. ARGUMENT 1. No Regulatory Violations of the Cited HMR Occurred. Section 175.33(a) speaks for itself:

...the operator of the aircraftmustprovide thepilot-in-command with accurate and legible written information

.... While the NTSB, in an apparentresponse to an accident investigation mayhave recommended that NOPIC's be made available to emergency responders, and while another agency, PHMSA, may have issued an interpretation,24 the evidence is very clearthatthe sole "beneficiary" ofthe cited HMR is the pilot in command. There is nothing in that regulation, nor for thatmatter in any other regulation, FAA handbook, order or other publicly available informationthat mandates that a NOPIC be prepared or given to first responders. As admirable and useful as providing first

24 Neither the NTSB recommendation nor the PHMSA interpretation (ifthey even exist] was offered or received in evidence. FAA Case No. 2011SW700189/FDMS No. FAA-2013-0040 MARTINAIRE AVIATION, LLC'S POST-TRIAL BRIEF 18responders with such information may be, there is simplyno regulatory or legal requirement. While the Department ofTransportation and/or the FAA could have amended the regulation, theyhave not. While the Department and/or the FAA could have disseminated some publicly available guidance interpreting the regulation so as to require thatthe NOPIC be prepared and made available to first responders, theyhave not. Simply stated, no air carrier or aircraft operator should be found in violation ofa regulatoryrequirementthat does not exist. No air carrier or aircraft operator should be penalized for not complying with what essentially is no more thattwo FAA Special Agent's recommendations, which although well-intentioned, lack any basis underthe law. 2. A $206,550 Civil Penalty is Excessive, Unreasonable and Unwarranted. (a) Apparenttranscription errors in the dispatch copies alone are insufficient to establish a violation or impose a penalty. True, the 90-day files maintained by Martinaire's dispatch office contained whatwere likely to be transcription errors. As Mr. Buchanan testified: Q

.... So you don't know who actuallywrote the form, who filled outthe form, whether itwas the pilot orwhether it was dispatch. A No. It should have been dispatch. 

### Q.

.... So itwas the dispatcher who filled out the NOPIC forms thatyou observed. A Thatis correct. Q So as you sithere today, you don'tknow whatthe pilot had on his or FAA Case No. 2011SW700189/FDMS No. FAA-2013-0040 MARTINAIRE AVIATION, LLC'S POST-TRIAL BRIEF 19her NOPIC forms. A That is correct. 

### Q So although you may have seen irregularities with respectto the dispatch copies ofthe NOPIC forms, you don'tknow whatthe pilot's NOPIC form said or whether or not it was complete or incomplete. A That's correct.ZS Mr. Klimas added: 

### Q

.... And as you sithere today, with respectto the 12 forms thatthere were discrepancies in, you don'tknow who authored those forms, whether it was actually the pilot or whether itwas the dispatcher transcribingcertain information given bythe pilot. A For 100 percent certainty, no, otherthantheir program and we're told these are radioed in from the crewmembers or telephoned in and transcribed bythe dispatchers. Q

.... And with respect to the errors orthe blank spaces or whatever, you don't know whether thatwas a transcription error on the part ofthe dispatcher orwhetherthey didn'thear it, or whatever. A There's no way ofknowing.26 Complainant did not allege and did notproduce any evidence thatpilot-incommand NOPIC's were in any waydeficient or thatthe pilots in command did not possess required NOPIC information. Certainly, the DHL or UPS coupons that accompanied each parcel and given to the pilots contained the HMR-required informationP

25 Tr. 60:15-61:11. Mr. Buchanan also testified that he did not know whether the pilot neglected to provide the information to dispatch orwhether the dispatcher forgot to write down the information given to him bythe pilot, or whether the dispatcher misunderstood or misheard the pilot (Tr. 71:5- 12).
26 Tr. 96:1-18.

27 Otherthan the date offlight, flight number and aircraft location at which the item was loaded, all FAA Case No. 2011SW700189/FDMS No. FAA-2013-0040 MARTINAffiE AVIATION, LLC'S POST-TRIAL BRIEF 20Absent any evidence thatthe pilots did not receive the information required to be conveyed to them, Complainant's case mustfail and no penalty can be assessed. Inasmuch as it is the Martinaire pilotwho authors the NOPlC (i.e., the "note to self'), itwould defy logic to hold thatthe pilot was not given this information. (b) Complainant's AssertedAggravating Factors. Complainant asserts thatthis is an aggravated case which compels the imposition ofa civil penaltyfar in excess ofthatwhich Complainanthas ever sought because there were two prior isolated hazardous materials cases and similar findings in an FAA inspection that occurred two years later. With all due respect, this does not evidence a systemic corporate culture guilty ofregulatory disregard. Moreover, to the extent that Complainant's evidence and arguments in supportofits civil penalty computation constitute evidence and arguments relating to its calculation or determination ofthe penaltyor reflect its deliberative process in connection with the calculation or determination ofthe penalty, they should be stricken as Martinaire had previouslybeen precluded from any discovery or inquiry into same (See 

### Motion in Limine No. 1, infra). Prior Martinaire NOPIC Cases: The two prior cases, one arising in 2009 and the other in 2011, both settled without admission ofliability or wrongdoing, in and ofthemselves, do not establish

a pattern ofconduct ofHMR violations.

ofwhich were within the knowledge ofthe pilot. FAA Case No. 2011SW700189/FDMS No. FAA-2013-0040 MARTINAIRE AVIATION, LLC'S POST-TRIAL BRIEF 21Operating some 1,300-1,700 flights per month, Martinaire has conducted

over 100,000 otherwise violation-free flights since the 2009 case arose. As Mr. Klimas testified, that case, which involved the pilotnot filling out a NOPlC because he had run out ofthe appropriate blank forms 28 , was settled for substantiallyless than whatthe FAA had originally proposed and without admission ofliability of wrongdoing (Tr.109:7-110:9). The "Purple Power" case arose in 2011. AMartinaire pilot, engaged in an offhours personal activity ofwashing airplanes, purchased ajug ofPurple Power cleanerjdegreaser29 and took it onto a Martinaire airplane that he was flying. He assumed (albeit erroneously) that it was carriage ofa personal item and did not have to be declared. He certainly did nottell Martinaire (Tr. 145:1-142:5). Martinaire did not instruct him to purchase the product or to put and carry it on the airplane. In fact, Martinaire had no knowledge ofthe pilot's own frolic and detour this until after the aircraftwas ramp checked by FAA personnel atthe destination. Be that as it may, Martinaire settled thatmatter for considerablyless than the FAA had proposed, without admission ofliability orwrongdoing (Tr. 146:15-17). Since that case arose, Martinaire has operated some 60,000 otherwise violation-free flights.

28 However, the pilothad the UPS coupon which containedthe majority ofthe information required by the NOPIC. The pilot had also called in NOPIC information to dispatch. See Mr. Rusinowitz' testimony atTr. 143:2-144:15

29 Ofinteresting note is the fact that while the Purple Power case was pending, the product was removed from the hazardous material classification. FAA Case No. 2011SW700189/FDMS No. FAA-2013-0040 MARTINAIRE AVIATION, LLC'S POST-TRIAL BRIEF 22The December2013 inspection: Even though Complainanthas not initiated an enforcementaction arising from a December 2013 inspection during which itfound similar NOPIC discrepancies, Complainantis attemptingto litigate it along with the instant case. Again, while the 90-day file mayhave contained errors,the pilots had all required information (Tr. 148:6-9). Despite the immediate and comprehensive corrective actions that Martinaire took in response to the 2011 inspection (Exhibit R-1), similar errors occurred again-some 2 'lz years later. Again, it was determined thatthis was the result of human error--transcription and transposition mistakes. In an immediate response to these findings, Martinaire, as testified to by Mr. Buchanan, "stepped up to the plate" 30 took itupon itselfto develop a computer-based program to preventhuman error, as no such program was commercially available (Tr. 147:19-150:14).3 1 Considering how Complainanthas dealtwith other air carriers in hazardous materials and multiple NOPIC violation cases, Complainant's putting its "thumb on the scale" based on the two prior isolated cases that arose years earlier, years apart and in two different areas ofthe country, and a 2013 inspection which did noteven rise to an enforcement action, is disingenuous. On May 14, 2014, Martinaire requested and on May 27, 2014, the Court

3o Tr. 61:12-20.

31 Despite Martinaire's invitations to the FAA to visit Martinaire's facilities and reviewthis program, the FAA has declined, instead preferring to wait until the instant case has been resolved. See Mr. Rusinowitz' testimony 151:6-154:14. Mr. Klimas so much as admitted this, but statedthatthe FAA refusal to observe and participate in the demonstration ofthe new program was not his call (Tr. 108:6-109:6). FAA Case No. 20llSW700189/FDMS No. FAA-2013-0040 MARTINAIRE AVIATION, LLC'S POST-TRIAL BRIEF 23grantedjudicial notice ofthe following: 1. FAA Order 2150.3B, FAA Compliance andEnforcementProgram, including butnot limited to Appendix Cand Figure C-1; 2. Complainant's "Agency's Responses to Respondent's First Request for Production ofDocuments", in the instantmatter, served on July 24, 2012, including but notlimited to responses to Requests to Produce Nos. 1.12, 1.13, 1.14 and 1.15, and attachments thereto. 3. OrderAssessing Civil Penalty, FAA Case No. 2012SW700081 (Atlantic SoutheastAirlines, Inc., involving 4 separate shipments of oxygen generators, the last ofwhich was intentionally concealed. The FAA originally proposed a civil penalty of$88,000, but settled for $77,000.00); 4. OrderAssessing Civil Penalty, FAA Case No. 2011SW700155 (SouthwestAirlines, involving the improper handling of a batterypowered wheelchair which resulted in the wet battery spilling. The FAA originally proposed a civil penalty of$42,500, but settled for $32,000.00); 5. Order Assessing Civil Penalty, FAA Case No.2011SW700182 (Ethiopian Airlines, involving the shipment ofoxygen generators without shippingpapers and which had not been packed and labeled; The FAA proposed a civil penalty of$195,000, but settled for $160,000.00);

FAA Case No. 2011SW700189/FDMS No. FAA-2013-0040 MARTINAIRE AVIATION, LLC'S POST-TRIAL BRIEF 246. OrderAssessing Civil Penalty, FAA Case No. 2011SW700093 (Federal Express Corporation, involving 9 acceptances of hazardous materials without shippingpapers. The FAA originally proposed a civil penaltyof$32,500, but settled for $24,500.00); 7. OrderAssessing Civil Penalty, FAA Case No.2010SW700184 (SouthwestAirlines, involving the shipment ofa fuel control unit which had notbeen drained and which contained fuel and the package had not been marked or labeled. The FAA originally proposed a civil penalty of$78,000, but settled for $62,000.00); 8. OrderAssessing Civil Penalty, FAA Case No. 2010SW700147 (Express jetAirlines, Inc., involving that carrier's offering for shipment an oxygen compressorwhich was not onlynot markedto showthatit was a hazardous material, butwas marked to show that it was a non-hazardous material. The FAA originallyproposed

a civil penalty of$5,500.00, but settled for $5,000.00); 9. OrderAssessing Civil Penalty, FAA Case No. 2008SW700060 (American Airlines, Inc., for seven NOPIC violations. The FAA originally proposed a civil penalty of $49,000.00, but settled for $41,500.00); 10. OrderAssessing Civil Penalty, FAA Case No. 2008SW700102 (American Airlines, Inc., for six NOPIC violations. The FAA originally proposed a civil penalty of$63,600.00, but settled for

FAA Case No. 2011SW700189/FDMS No. FAA-2013-0040 MARTINAJRE AVIATION, LLC'S POST-TRIAL BRIEF 25$45,000.00); 11. OrderAssessing Civil Penalty, FAA Case No. 2008SW700123 (American Airlines, Inc., for 13 NOPIC violations. The FAA originallyproposed a civil penalty of$32,000, but settled for $22,500.00); 12. OrderAssessing Civil Penalty, FAA Case No. 2010SW700146 (Continental Airlines, Inc., for eight NOPIC violations. The FAA had proposed a civil penalty of$35,850.00 but settled for $32,000.00); and 13. Order Assessing Civil Penalty, FAA Case No. 2007SW700311 (World Airways, Inc., for one NOPIC violation involving the acceptance and carriage ofbiohazardous materials in the cabin ofa passenger aircraft without shipping papers. The FAA had proposed a civil penalty of$32,500.00 but settled for $25,000.00).32

32 All ofthese cases were handledbythe verysame FAA Regional Counsel's office as the instant case. In fact, with the exception ofthe Federal Express case, (2011SW700093), all ofthese cases were handled bythe very same attorney. The three American Airlines cases, which involved 26 NOPIC violations (and hazardous materials carried on passenger aircraft) against a much larger Group I carrier, were settledby the very same attorney for $109,000, slightly more than halfofwhat he is seeking here. In the American Airlines cases, that Companyfailed to prepare and provide NOPIC's to the pilotin command. Contrastthe instant case in which the Martinaire pilot prepares the NOPIC ("the note to self') and transmits this to dispatch. Again, there is no evidence that Martinaire pilots failed to prepare NOPIC's or prepared them incorrectly. In fact, all witnesses (Complainant's and Martinaire's) testified that regardless ofwhatwas contained in the dispatch copies ofthe NOPlC's, the pilots had the UPS and DHL coupons containing the required information. Lastly, the only reason Martinaire is considered a Group II carrier is because it operates more than 25 aircraft (even though they are small). As Mr. Buchanan acknowledged, ifMartinaire downsized its fleet but operated larger aircraft, itwould be exposed to smallerpenalties as a Group III carrier, even though its cargo capacity (and potentiallyits earning capacity) would be greater (Tr. 51:21-52:12). FAA Case No. 20l1SW700189/FDMS No. FAA-2013-0040 MARTlNAIRE AVIATION, LLC'S POST-TRIAL BRIEF 26On june 11, 2014, Martinaire filed its Second Request for judicial Notice requesting thatthe Administrative Lawjudge takejudicial notice ofComplainant's Quarterly Enforcement Reports for the period from july 1, 2011 through December 31, 2013, which are downloadable from Complainant's website,

These Quarterly Enforcement Reports also show that a civil penalty of$206,500 is unprecedented and thatthere have been numerous, repetitive hazardous materials

cases against other entities and air carriers (most ofthem larger than Martinaire), for which the penalties have been substantiallyless. Complainanthas offered no explanation as to whythe penalty in this case is so high-rather, itinsists that its determination be given due deference. (c) Factors in Mitigation ofthe Civil Penalty. Aside from questioning whether a violation ofthe cited HMR even occurred and whether Martinaire, which has nothad an operating profit in the past 3 years,
can afford to paythe proposed penalty (which it cannot-the penalty even exceeds the profitthat Martinaire earned in 2011 whenthis case arose), Complainant asserts that Martinaire's corrective action was ineffective, citing the December 2013 inspection33 As evidenced by Exhibit R-1 and the testimonyofMr. Rusinowitz, Martinaire's response to the FAA inspection ofjuly 8, 2011 and its implementation ofcorrective actions was swift, immediate and comprehensive, consistentwith

33 Again, Complainant seeks to litigate a matter which has not even given rise to an enforcement action. FAA Case No. 2011SW700189/FDMS No. FAA-2013-0040 MARTINAIRE AVIATION, LLC'S POST-TRIAL BRIEF 27Order 2150.38, Page C-11. Specifically: 1. Within three days ofthe audit and FAA outbriefing, Martinaire revised, printed and disseminated a new NOPIC form (believing thatthe existing form mayhave contributed to the observed discrepancies); 2. Within days, Martinaire revised its HazMat training program for pilots and dispatchers; 3. Within days, dispatchers underwent supplemental HazMat training; 4. Within days, Martinaire's ChiefPilot sent a broadcastemail to all pilots instructingthem on how to prepare the revised NOPIC and then sent a follow-up broadcast email to them onjuly 26, 2011; and 5. Martinaire implemented additional corrective actions, including daily auditing ofNOPIC's, to ensure accuracy. The FAA was satisfied with these corrective actions. Mr. Buchanan was certainly satisfied (Tr. 53:21-54:2): Q

...Was there anythingthatMartinaire should have done that it didn't do in respondingto Mr. Klimas' investigation? A Nothing in addition to whatwas stated there.34 Mr. Klimas was also satisfied: Q

...And in thatletter ofresponse, did Martinaire address the FAA's concerns?

34 Tr. 54:15-19. FAA Case No. 2011SW700189/FDMS No. FAA-2013-0040 MARTINATRE AVIATION, LLC'S POST-TRIAL BRIEF 28A Theydid. Q Did Martinaire take corrective action? A They did. Q Was the corrective action comprehensive?

A Yes. Q Was the corrective action swift? A It was swift. Q Is there anything that Martinaire should have done thatthey didn't do in response to this letter ofinvestigation? A They address the findings in the letter. Q

... Are there any corrective actions that shy should have implemented thatthey did notimplement?

A At this point, I was satisfied with the corrective actions provided to. Q Did anybodyfrom your office go to Martinaire at anytime priorto December 13 and say, You know, we have your response to the letter of investigation regardingthe NOPIC errors, and, you know,, there's some additional stuffwe thinkyou ought to do? A Not that I'm aware of. Q Was there anything in Martinaire's response to which you or the FAA disagreed? A In this response, no.Js Mr. Rusinowitz added:

35 Tr. 104:8·106:10. FAA Case No. 2011SW700189/FDMS No. FAA-2013-0040 MARTINAIRE AVIATION, LLC'S POST-TRIAL BRIEF 29Q Was the FAA satisfied? A Yes. Q Did the FAA say, Martinaire, you're not doing enough; you can do more? A No. Q Did you maintain a dialogue with the FAA duringthis process? A To this day, we have a good dialogue with Inspector Klimas and Inspector Buchanan. Q Has the FAA at anytime, prior to December 13, advised Martinaire, You're not doing enough with respectto HAZMAT compliance? A No, sir.36 As for the subsequent December 2013 inspection which revealed similar NOPIC discrepancies, the evidence is clear and uncontroverted that Martinaire devoted immediate and undivided attention to their correction, spending countless time, treasure and resources in developing a computer software program to remove anypossibility or chance ofhuman errorfrom the NOPIC transcription/preparation process. The fact thatthe FAA has declined Martinaire's invitations to participate in the software demonstration process until such time as the instantmatter is concluded suggests that the FAA's priority is not promoting safety and regulatory compliance, but rather imposing exorbitantlylarge civil penalties. VII. CONCLUSION Complainant's interpretation ofthe cited HMR's is not onlyin error, but ''Tr. 141:141:9-142:14. FAA Case No. 2011SW700189/FDMS No. FAA-2013-0040 MARTINATRE AVIATION, LLC'S POST-TRIAL BRIEF 30arbitrary, capricious and devoid ofany rational basis. Based upon this interpretation, Complainanthas cited Martinaire with violations ofrequirements that do not exist. There is no regulatory or other legal requirement or any other publicly available authoritythat requires that NOPlC's be prepared to assist first responders. The NOPIC, by its very definition, is a notification to the pilot in command. There is no evidence, whatsoever, thatthe pilots ofthe 12 flights carryingthe 17 parcels did not have this information orthattheir information was deficient. Quite to the contrary, all witnesses agree thatthe DHL and UPS coupons provided the substantive information required bythe HMR and thatthe pilots were certainly aware ofthe dates ofthe flights, the flight numbers and where theyhad loaded the parcels on their aircraft. The regulatory purpose was fully served and complied with. There was no violation. Based upon Complainant's erroneous, arbitrary, capricious and irrational interpretation ofthe cited HMR's, Complainanthas initiated an enforcementaction and seeks the largest civil penalty ever against any air carrier, large or small, for alleged NOPIC violations. This penaltyis devoid ofany reasonable basis. The Administrative Lawjudge should not give the "due deference" that Complainant demands to such outlandish regulatoryinterpretations and civil penalty computations.

FAA Case No. 2011SW700189/FDMS No. FAA-2013-0040 MARTlNAIRE AVIATION, LLC'S POST-TRIAL BRIEF 31Respectfully submitted, Dated: August 15, 2014 Nand,ASSOCIATES

Attorneys for MARTINAIRE AVIATION, LLC 465 California Street, Suite 210 San Francisco, CA 94104 Telephone: 415-421-2500 FAX: 415-421-2560 Email: /aw@avial?}!.com

FAA Case No. 2011SW700189/FDMS No. FAA-2013-0040 MARTINAIRE AVIATION, LLC'S POST-TRIAL BRIEF 32CERTIFICATE OF SERVICE The undersigned herebycertifies that on this 15th day ofAugust, 2014, a true and correct copyofthe foregoing MARTINAIRE AVIATION, LLC'S POST-TRIAL BRIEF

was served as follows: The Honorable Richard C. Goodwin Office ofHearings, M-20 1200 NewjerseyAvenue, S.E. East Building Ground Floor, Room El2- 320 Washington, D.C. 20590 Email:**rL~ha_r-c]J;Q9_c:lwtn@dnt.g_gy** cc: patricia.matthews@dot.gov {Federal Express and Email]

FederalAviation Administration BOO Independence Avenue SW Washington, DC 20591 Attn: Hearing Docket Clerk, AGC-430 Wilbur Wright Building

- Suite 2W1000 {Original and one copy via Federal Express} james Archier, Esq. Federal Aviation Administration Office ofthe Regional Counsel, ASW-7 2601 Meacham Boulevard, Suite 6E FortWorth, TX 76137 FAX: 1-817-222-5092 Email: james.archier@faa.gov {Federal Express, Email and FAX}

AITLIN M. MILLER
FAA Case No. 2011SW700189/FDMS No. FAA-2013-0040 MARTINAIRE AVIATION, LLC'S POST-TRIAL BRIEF 33