UNITED STATES OF AMERICA 

DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

IN THE MATTER OF 

MARTINAIRE AVIATION, LLC 

(Civil Penalty Action) 

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 DOCKET 
Table of Contents 

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 

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MARTINAIRE AVIATION, LLC (hereinafter referred to as "Martinaire"), by 

and through its undersigned counsel, submits its Post-Trial Brief in this matter. 

I. INTRODUCTION 

The Federal Aviation Administration ("FAA"; "Complainant") has alleged that 

on 12 occasions during the period from April through June, 2011, Martinaire 

violated Sections 175.33(a)(1), 175.33 (a)(l)(i) and 175.33 (a)(7) of the 

Department of Transportation's Hazardous Materials Regulations ("HMR"). 

Specifically, based upon its review of hundreds of Notices to Pilot in Command 

(NO PIC's) in the "90-day file" maintained by Martinaire's dispatch office, 

Complainant has 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 penalty that Complainant has ever sought against any airline, large or 

small, for alleged NO PIC violations. This penalty appears to be based in large part 

upon a novel regulatory interpretation for which there is no legal basis. 

Martina ire 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 of the Federal Aviation Regulations (FAR's). 

In 2011, when this case arose Martinaire's net profit was $197,169 or a mere $12.64 

1 There were 17 shipments that were listed on 12 NOPlC's. Some of the NOPIC's listed multiple 

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per flight. 2 Subsequent to 2011 and continuing into the present year, 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 not providing full 

information to the pilot in command, thereby putting the pilots' 

well being at risk4; 

3. Martinaire (through its dispatch office) put the well-being of not 

only first responders, but "the public at large"S at risk6; 

4. Martinaire's prior violations, and a December 2013 inspection 

demonstrate that "its conduct of violating the ... (HMR's) is 

systematic"7; and 

2 The profit per 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 that the pilots generated the NOPIC's concurrent with their acceptance of the 

parcels and the accompanying coupons which contained all of the 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 Brief at 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 requirement that NO PIC's exist to serve any 

emergency response need. 

7 Complainant's Post-Trial Brief at 5. 

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5. Martinaire can afford to pay the penalty8. 

Complainant's approach is overly simplistic. It not only convolutes 

the facts, the law and plain logic, but violates both the law and established 

precedent. 

There is no dispute that the NOPIC's in the 90-day file, prepared by 

dispatch personnel based upon information called in by the pilots, evidenced 

transcription or other human errors. However, the fact remains that the 

pilots had all pertinent information at all times during each of the flights and 

the regulatory requirements were met. 

II. CITED REGULATION 

The cited HMR's provide: 

§ 175.33 Notification of pilot-in-command. 

(a) Except as provided in §175.10, when a hazardous material 

subject to the provisions of this subchapter is carried in an aircraft, 

the operator of the aircraft must provide 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 of this subchapter, any additional description 

requirements provided in §§172.202 and 172.203 of this 

s Notwithstanding any evidence of same and Mr. Buchanan's testimony that the 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]. 

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subchapter must also be shown in the notification. 

(7) The date of the flight .... 

(emphasis added) 

Unlike most air carriers, which prepare NO PIC's and provide them to their 

flight crews, in Martinaire's case, just the opposite occurs (Tr. 102:9-11). 

Martinaire's pilots, upon receipt of a HazMat parcel from UPS or DHL, accompanied 

by a UPS- or DHL-prepared ticket containing all of the 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 NO PIC information into dispatch9 Dispatch 

personnel transcribe this information onto a NO PIC form and insert the form into 

the "90-day file". The pilots have all required NO PIC information (and the UPS and 

DHL tickets) before and during their flights, and Complainant knows 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 NO PIC form has. Correct? 

A Basic-yes. 

Q Okay. So basically what the pilot is doing when he prepares or she 

prepares the NO PIC for Martinaire is they're taking the information from the DHL 

coupon or the UPS coupon and basically transcribing 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 different than 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). 

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Q So the pilot-in-command, by virtue of his or her receipt of the ... 

coupon, already knows what's on that airplane. 

A Yes10 

Q And with respect to the NO PIC irregularities ... those were the dispatch 

copies of the NOP!Cs. Is that correct? 

A That is correct.ll 

Complainant's Mr. Klimas testified similarly, even referring to the pilotgenerated NO PIC 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 basically has the very same information that would go in the Martinaire 

NO PIC form. 

A Outside of the location of the 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 pilot would know where things are on his or her airplane. 

A Hopefully.1z 

The pilot copies of the NOPIC's are discarded after each flight. 

The NO PIC is intended to be used only by and for the benefit of the pilot in 

command-the very same pilot, who prepared the NO PIC, based upon information 

::_o Notwithstanding this testimony, Complainant continues to capitalize on the "threat to the 

pilot who may not know what he's got on his aircraft" (Tr. 42:17-19; Complainant's Post-Trial Brief at 

4-5). 

u Tr. 47:7-48:10. 

12 Tr. 97:18-98:11. 

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contained in the UPS and D HL tickets, and who supervised the loading of the 

aircraft. As such it is difficult to imagine that any error in a NO PIC found in the 90-

day file (long after each of the flights was successfully completed) would pose "a 

threat to the pilot who may not know what he'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 Brief at 4). Moreover, contrary to what Complainant 

asserts (Complainant's Post-Trial Brief at 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 document that states that the NO PIC is or should be prepared for the 

benefit of first responders in the event of an aircraft mishap. This is embellishment 

at its worst, convoluting the law, the evidence and simple logic. 

As Mr. Buchanan testified: 

Q Is there anything in FAA publicly available documentation, opinions 

anything out there which says that the NO PIC is to be used for assisting emergency 

responders? 

A There-was a National Transportation Safety Board recommendation, 

and that's why the NO PIC was created. I can't quote exactly what that was. As a 

result of the Newburgh, New York, Fed Ex crash. 

Q But from the FAA, is there any FAA publicly available documents that 

says that the NO PIC is to be used for emergency response purposes? 

A Nothing from the FAA. No, sir. 

Q So your testimony that the NO PIC is to be used to assist emergency 

responders, that's just your personal opinion? 

A That section of the regulations came out as an NTSB recommendation. 

Q Well, we're not talking about NTSB recommendations. I'm talking 

about FAA policy. Is there FAA policy which says that NOPICs are to be used for 

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emergency responders? 

A Nothing from the FAA. No, sir. 

Q Okays. And the NTSB, that which you have stated, is simply a 

recommendation. 

A That is correct. 

Q It's not the law. 

A That is correct.B 

Mr. Klimas testified similarly, only basing his personal opinion on a PHMSA 

interpretation: 

Q Where in HRM 175.33 does it state that the NO PIC is to be used for 

emergency response 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 that the NO PIC is to be used for emergency response 

purposes? 

A There is a PHMSA letter of interpretation that alludes to-it states 

specifically, emergency responders, and being able to have that information in event 

of an incidentQ And this is PHMSAA Pipeline and Hazardous Materials Safety Administration. 

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 expect them to be necessarily. 

13 Tr. 56:8-57:15. 

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Q Would you expect an air carrier to 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 my experience. 

Q Is there anything in Martinaire's general operating manual or GOM 

that requires that they be familiar with PHMSA interpretations? 

A I don't believe so. 

Q Are there any FAA handbooks or orders that state that the NO PIC, in 

addition to serving as the notice to the pilot-in-command, is also to be used for 

emergency response purposes? 

A I haven't read any.14 

Likewise, Martinaire's Executive Vice President and Chief Operating Officer, 

Alan Rusinowitz, who not only has been with Martinaire for some 14 years, but has 

had a 3 5-year aviation career with a number of air carriers and aviation training 

companies, testified that he has never heard of any requirement that NOPIC's be 

prepared for first responders: 

Q What is the purpose of a NO PIC? 

A It's to provide the pilot-in-command the information of what he is 

carrying that may be a hazard or potential danger. 

Q And have you dealt with the hazardous materials regulations in your 

employment with Martinaire, or have you dealt with them in your employment with 

other air carriers and other entities in the aviation business? 

A With other air carriers also. 

14 Tr. 98:14-100:14. 

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Q Have you ever known of a requirement in the HMRs that specify that 

NOP!Cs are to be used for first responders? 

A No sir. 15 

III. THE PLEADINGS 

The essence of Complainant's case is that during the FAA's comprehensive 

base inspection ofMartinaire on july 8, 2011, a review of the dispatch office's 90-

day file (which consisted of several hundred NOPIC's) revealed that 12 NOPIC's 

covering 17 parcels were incomplete or in error. 

This comprehensive inspection started early in the day. The FAA observed 

Martinaire's operations at Dallas-Fort Worth 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 NO PIC errors were found. 

While Martinaire fully admitted that the dispatch copies of the NOPIC's 

contained errorsP it denied allegations of violation, challenged the appropriateness 

15 Tr. 126:7-22. 

16 Complainant's Mr. Klimas testified that Martinaire was "passing with 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 disagreement by Complainant as to the level of 

cooperation that Martinaire provided or the swiftness, comprehensiveness and effectiveness of its 

corrective actions. Please see transcripts of depositions of Complainant's Paul Klimas ("Klimas 

Depo.") and Bryan Buchanan ("Buchanan Depo.") previously lodged with the Court and Tr. 

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and reasonableness of the proposed $206,550.00 civil penalty and raised the 

following affirmative defenses: 

1. The sanction is unwarranted by the facts, safety in 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 without basis or 

jurisdiction in law or fact (Second Affirmative Defense); 

3. Any and all alleged discrepancies were the product of simple 

human error, in violation of Martinaire's own policies and 

procedures, and contrary to the training and guidance that the 

employees were provided and are in no way indicative of the 

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 of internal daily audits of all NO PIC's. 

Subsequent internal audits have shown that compliance has been 

achieved (Third Affirmative Defense); 

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4. 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 NO PIC Form to make it more user friendly; and 

provided its personnel with additional training (Fourth Affirmative 

Defense); 

5. Martinaire took all necessary corrective actions to avoid repeated 

mishaps such that penalties are redundant and will not result in 

any increase in safety (Fifth Affirmative Defense). 

6. Complainant has compounded the alleged violations and sanctions 

in contravention of FAA Order 2150.38, seeking excessive civil 

penalties and failing to take into consideration the considerable 

corrective action that was immediately thereafter taken by 

Martinaire. Moreover, to the extent that the FAA Order treats 

Martina ire as a Group II carrier, it is arbitrary, capricious and 

unenforceable. Specifically, Figure C-1 of the Sanction Guidance 

Table contained within said Order mandates that the 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 of aircraft that Martinaire operates, the majority of 

which have a maximum gross takeoff weight of less than 12,500 

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pounds 18. However the Order and Table fail to account for the size 

of the aircraft or their payloads. Under the Order and Table, a 

carrier operating fewer, but larger, aircraft, carrying far greater 

payloads, and far greater numbers of hazardous materials 

shipments and generating substantially greater revenues, could be 

treated as a smaller carrier and be subject to lesser penalties (Sixth 

Affirmative Defense); and 

7. Complainant's case is devoid of any sense of proportion, as during 

the period of time covered by the Complaint, Martinaire carried 

some several hundred HAZMAT shipments, all without incident. 

The total number of NO PIC's examined by the FAA was several 

hundred, of which 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 penalty would 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 Complainant neither responded nor opposed. By Order dated 

june 10, 2014, the Court advised that these Motions in Limine would be considered 

at hearing during deliberations on the issues under consideration. Although they 

18 Martinaire's fleet includes three Beech craft 1900/s with a gross takeoff weight of 16,600 pounds. 

However, Martinaire's entire fleet operates under Part 135. 

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were not considered at hearing, Martinaire respectfully requests that they be 

considered19 in the deliberations and disposition of this matter. 

Motion in Limine No. 1-Preclusion o{Evidence Concerning Calculation, 

Determination. Deliberation o{Penalty: 

Motion in Limine No. 1 sought preclusion of evidence of or relating to 

Complainant's calculation, determination, deliberation or other reflection of the 

appropriateness or reasonableness of the 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 respecting the agency's suggested civil penalty without compromising the 

policy," during the depositions of Complainant's Persons Most Knowledgeablezo, 

Complainant's Counsel repeatedly instructed FAA witnesses not to answer any 

questions related to Complainant's "deliberative process" and not to provide any 

information that could explain why the FAA was seeking an unprecedented penalty 

in this action.21 

Complainant has not produced any evidence refuting Martinaire affirmative 

19 Motion in Limine No.2, which sought to preclude testimonies of persons 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 of Messrs. Buchanan and Klimas 

who had been disclosed. 

15 Copies of the transcripts of depositions of Messrs. Buchanan and Klimas were submitted under 

cover of Martinaire's Transmittal of Exhibits, 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 of the 

hundreds of NOPlC's contained in the 90-day file were found to have errors. 

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defenses and has not produced evidence substantiating the reasonableness or 

appropriateness of its sanction. There is no evidence that this sanction is in accord 

with established law and precedent. Complainant has failed to explain how this 

exorbitant penalty, the largest on record for a NO PIC violation, against a small 

business, having fewer than 100 employees and operating less 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, 

particularly when the alleged discrepancies were contrary to Martinaire's own 

established policies, procedures and training and when Martina ire 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 it is entitled to 

substantial deference (Complainant's Post-Trial Brief at 2), should be stricken. 

Motion in Limine No. 3-Prec/usion o[Evidence Re: First Responders 

Motion in Limine No.3 sought preclusion of evidence that HMR's NO PIC 

requirement has been promulgated and exists for the purpose of providing 

assistance to first responders in the event of an aircraft mishap. Complainant has 

heretofore stated and at hearing conceded that there is no such evidence. 

There is no regulatory requirement that the NO PIC be prepared for anyone 

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other than the pilot in command. Although they might conceivably benefit from 

having such information, there is no regulatory requirement that the NO PIC 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 that the NO PIC, in addition to serving as a notice to 

the pilot in command, is also to be used for emergency response purposes. Messrs. 

Buchanan's and Klimas' testified to this at their 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 important limit on the deference 

courts should accord to a federal administrative agency's interpretation of its own 

regulations in Christopher v. Smith Kline 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 of ambiguous regulations 

[would] impose potentially massive liability on [a regulated entity] for conduct that 

occurred well before that interpretation was announced." 

There has been no regulatory reference, testimony or documents suggesting 

that Martinaire should have known of a requirement to prepare NO PIC's to assist 

first responders. 

22 See Footnotes 6 and 7 infra. 

''No. 11-204 (June 18, 2012) 

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V. ISSUES 

Complainant filed a Motion for Decision on june 17, 2013, asserting that 

there are no genuine issues of material fact. 

By Order dated july 8, 2013, the Administrative Law judge granted the 

Motion for Decision as to the allegations and denied it as to the issue of penalty. 

As such, there are only two issues to be adjudicated: 

1. Did regulatory violations of HMR Section 175.33 occur? 

and 

2. If so, what, if any, 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 aircraft must provide the pilot-in-command with accurate 

and legible written information .... 

While the NTSB, in an apparent response to an accident investigation may have 

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 

clear that the sole "beneficiary" of the cited HMR is the pilot in command. There is 

nothing in that regulation, nor for that matter in any other regulation, FAA 

handbook, order or other publicly available information that mandates that a NO PIC 

be prepared or given to first responders. As admirable and useful as providing first 

24 Neither the NTSB recommendation nor the PHMSA interpretation (if they even exist] was offered 

or received in evidence. 

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responders with such information may be, there is simply no regulatory or legal 

requirement. While the Department of Transportation and/ or the FAA could have 

amended the regulation, they have not. While the Department and/or the FAA 

could have disseminated some publicly available guidance interpreting the 

regulation so as to require that the NO PIC be prepared and made available to first 

responders, they have not. 

Simply stated, no air carrier or aircraft operator should be found in violation 

of a regulatory requirement that does not exist. No air carrier or aircraft operator 

should be penalized for not complying with what essentially is no more that two 

FAA Special Agent's recommendations, which although well-intentioned, lack any 

basis under the law. 

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

(a) Apparent transcription 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 

what were likely to be transcription errors. 

As Mr. Buchanan testified: 

Q .... So you don't know who actually wrote the form, who filled out the 

form, whether it was the pilot or whether it was dispatch. 

A No. It should have been dispatch. 

Q. .. .. So it was the dispatcher who filled out the NO PIC forms that you 

observed. 

A That is correct. 

Q So as you sit here today, you don't know what the pilot had on his or 

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her NO PIC forms. 

A That is correct. 

Q So although you may have seen irregularities with respect to the 

dispatch copies of the NOPIC forms, you don't know what the pilot's NO PIC form 

said or whether or not it was complete or incomplete. 

A That's correct.ZS 

Mr. Klimas added: 

Q .... And as you sit here today, with respect to the 12 forms that there 

were discrepancies in, you don't know who authored those forms, whether it was 

actually the pilot or whether it was the dispatcher transcribing certain information 

given by the pilot. 

A For 100 percent certainty, no, other than their program and we're told 

these are radioed in from the crewmembers or telephoned in and transcribed by the 

dispatchers. 

Q .... And with respect to the errors or the blank spaces or whatever, 

you don't know whether that was a transcription error on the part of the dispatcher 

or whether they didn't hear it, or whatever. 

A There's no way ofknowing.26 

Complainant did not allege and did not produce any evidence that pilot-incommand NOPIC's were in any way deficient or that the pilots in command did not 

possess required NO PIC 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 or whether the dispatcher forgot to write down the information 

given to him by the pilot, or whether the dispatcher misunderstood or misheard the pilot (Tr. 71:5-

12). 

26 Tr. 96:1-18. 

27 Otherthan the date of flight, flight number and aircraft location at which the item was loaded, all 

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MARTINAffiE AVIATION, LLC'S POST-TRIAL BRIEF 

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Absent any evidence that the pilots did not receive the information required 

to be conveyed to them, Complainant's case must fail and no penalty can be 

assessed. Inasmuch as it is the Martinaire pilot who authors the NOPlC (i.e., the 

"note to self'), it would defy logic to hold that the pilot was not given this 

information. 

(b) Complainant's Asserted Aggravating Factors. 

Complainant asserts that this is an aggravated case which compels the 

imposition of a civil penalty far in excess of that which Complainant has 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 of regulatory disregard. 

Moreover, to the extent that Complainant's evidence and arguments in support of its 

civil penalty computation constitute evidence and arguments relating to its 

calculation or determination of the penalty or reflect its deliberative process in 

connection with the calculation or determination of the penalty, they should be 

stricken as Martinaire had previously been precluded from any discovery or inquiry 

into same (See Motion in Limine No. 1, infra). 

Prior Martinaire NO PIC Cases: 

The two prior cases, one arising in 2009 and the other in 2011, both settled 

without admission of liability or wrongdoing, in and of themselves, do not establish 

a pattern of conduct of HMR violations. 

of which were within the knowledge of the pilot. 

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Operating 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 pilot not filling out a NOPlC because 

he had run out of the appropriate blank forms 28, was settled for substantially less 

than what the FAA had originally proposed and without admission of liability of 

wrongdoing (Tr.109:7-110:9). 

The "Purple Power" case arose in 2011. A Martinaire pilot, engaged in an offhours personal activity of washing airplanes, purchased a jug of Purple Power 

cleanerjdegreaser29 and took it onto a Martinaire airplane that he was flying. He 

assumed (albeit erroneously) that it was carriage of a personal item and did not 

have to be declared. He certainly did not tell 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 of the pilot's own frolic and detour 

this until after the aircraft was ramp checked by FAA personnel at the destination. 

Be that as it may, Martinaire settled that matter for considerably less than the FAA 

had proposed, without admission of liability or wrongdoing (Tr. 146:15-17). Since 

that case arose, Martinaire has operated some 60,000 otherwise violation-free 

flights. 

28 However, the pilot had the UPS coupon which contained the majority of the information required 

by the NO PIC. The pilot had also called in NO PIC information to dispatch. See Mr. Rusinowitz' 

testimony at Tr. 143:2-144:15 

29 Of interesting note is the fact that while the Purple Power case was pending, the product was 

removed from the hazardous material classification. 

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The December 2013 inspection: 

Even though Complainant has not initiated an enforcement action arising 

from a December 2013 inspection during which it found similar NO PIC 

discrepancies, Complainant is attempting to litigate it along with the instant case. 

Again, while the 90-day file may have 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 that this 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 it upon itself to develop a computer-based program to prevent human 

error, as no such program was commercially available (Tr. 147:19-150:14).31 

Considering how Complainant has dealt with other air carriers in hazardous 

materials and multiple NO PIC 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 of the country, and a 2013 inspection which did not even 

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 review this 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 stated that the FAA 

refusal to observe and participate in the demonstration of the new program was not his call (Tr. 

108:6-109:6). 

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granted judicial notice of the following: 

1. FAA Order 2150.3B, FAA Compliance and Enforcement Program, 

including but not limited to Appendix C and Figure C-1; 

2. Complainant's "Agency's Responses to Respondent's First Request 

for Production of Documents", in the instant matter, served on July 

24, 2012, including but not limited to responses to Requests to 

Produce Nos. 1.12, 1.13, 1.14 and 1.15, and attachments thereto. 

3. Order Assessing Civil Penalty, FAA Case No. 2012SW700081 

(Atlantic Southeast Airlines, Inc., involving 4 separate shipments of 

oxygen generators, the last of which was intentionally concealed. 

The FAA originally proposed a civil penalty of $88,000, but settled 

for $77,000.00); 

4. Order Assessing Civil Penalty, FAA Case No. 2011SW700155 

(Southwest Airlines, 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 of oxygen generators 

without shipping papers and which had not been packed and 

labeled; The FAA proposed a civil penalty of $195,000, but settled 

for $160,000.00); 

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6. Order Assessing Civil Penalty, FAA Case No. 2011SW700093 

(Federal Express Corporation, involving 9 acceptances of 

hazardous materials without shipping papers. The FAA originally 

proposed a civil penalty of $32,500, but settled for $24,500.00); 

7. Order Assessing Civil Penalty, FAA Case No.2010SW700184 

(Southwest Airlines, involving the shipment of a fuel control unit 

which had not been 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. Order Assessing Civil Penalty, FAA Case No. 2010SW700147 

(Express jet Airlines, Inc., involving that carrier's offering for 

shipment an oxygen compressor which was not only not marked to 

show that it was a hazardous material, but was marked to show 

that it was a non-hazardous material. The FAA originally proposed 

a civil penalty of $5,500.00, but settled for $5,000.00); 

9. Order Assessing Civil Penalty, FAA Case No. 2008SW700060 

(American Airlines, Inc., for seven NO PIC violations. The FAA 

originally proposed a civil penalty of $49,000.00, but settled for 

$41,500.00); 

10. Order Assessing Civil Penalty, FAA Case No. 2008SW700102 

(American Airlines, Inc., for six NO PIC violations. The FAA 

originally proposed a civil penalty of $63,600.00, but settled for 

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$45,000.00); 

11. Order Assessing Civil Penalty, FAA Case No. 2008SW700123 

(American Airlines, Inc., for 13 NO PIC violations. The FAA 

originally proposed a civil penalty of $32,000, but settled for 

$22,500.00); 

12. Order Assessing Civil Penalty, FAA Case No. 2010SW700146 

(Continental Airlines, Inc., for eight NO PIC 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 NO PIC violation involving the 

acceptance and carriage of biohazardous materials in the cabin of a 

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 of these cases were handled by the very same FAA Regional Counsel's office as the instant case. 

In fact, with the exception of the Federal Express case, (2011SW700093), all of these cases were 

handled by the very same attorney. The three American Airlines cases, which involved 26 NO PIC 

violations (and hazardous materials carried on passenger aircraft) against a much larger Group I 

carrier, were settled by the very same attorney for $109,000, slightly more than half of what he is 

seeking here. In the American Airlines cases, that Company failed to prepare and provide NO PIC's to 

the pilot in command. Contrast the instant case in which the Martinaire pilot prepares the NO PIC 

("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 of what was contained in the dispatch copies of the 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, if Martinaire downsized its fleet but operated larger 

aircraft, it would be exposed to smaller penalties as a Group III carrier, even though its cargo capacity 

(and potentially its earning capacity) would be greater (Tr. 51:21-52:12). 

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On june 11, 2014, Martinaire filed its Second Request for judicial Notice 

requesting that the Administrative Law judge take judicial notice of Complainant'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 that there have been numerous, repetitive hazardous materials 

cases against other entities and air carriers (most of them larger than Martinaire), 

for which the penalties have been substantially less. Complainant has offered no 

explanation as to why the penalty in this case is so high-rather, it insists that its 

determination be given due deference. 

(c) Factors in Mitigation of the Civil Penalty. 

Aside from questioning whether a violation of the cited HMR even occurred 

and whether Martinaire, which has not had an operating profit in the past 3 years, 

can afford to pay the proposed penalty (which it cannot-the penalty even exceeds 

the profit that Martinaire earned in 2011 when this case arose), Complainant asserts 

that Martinaire's corrective action was ineffective, citing the December 2013 

inspection33 

As evidenced by Exhibit R-1 and the testimony of Mr. Rusinowitz, 

Martinaire's response to the FAA inspection of july 8, 2011 and its implementation 

of corrective actions was swift, immediate and comprehensive, consistent with 

33 Again, Complainant seeks to litigate a matter which has not even given rise to an enforcement 

action. 

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Order 2150.38, Page C-11. Specifically: 

1. Within three days of the audit and FAA outbriefing, Martinaire 

revised, printed and disseminated a new NO PIC form (believing 

that the existing form may have 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 Chief Pilot sent a broadcast email to all 

pilots instructing them on how to prepare the revised NO PIC and 

then sent a follow-up broadcast email to them on july 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 anything that Martinaire should have done that it didn't 

do in responding to Mr. Klimas' investigation? 

A Nothing in addition to what was stated there.34 

Mr. Klimas was also satisfied: 

Q ... And in that letter of response, did Martinaire address the FAA's 

concerns? 

34 Tr. 54:15-19. 

FAA Case No. 2011SW700189/FDMS No. FAA-2013-0040 

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A 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 that they didn't do 

in response to this letter of investigation? 

A They address the findings in the letter. 

Q ... Are there any corrective actions that shy should have implemented 

that they did not implement? 

A At this point, I was satisfied with the corrective actions provided to. 

Q Did anybody from your office go to Martinaire at any time prior to 

December 13 and say, You know, we have your response to the letter of 

investigation regarding the NO PIC errors, and, you know,, there's some additional 

stuff we think you 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. 

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Q 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 during this 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 respect to HAZMAT compliance? 

A No, sir.36 

As for the subsequent December 2013 inspection which revealed similar 

NO PIC 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 

any possibility or chance of human error from the NO PIC transcription/preparation 

process. The fact that the FAA has declined Martinaire's invitations to participate in 

the software demonstration process until such time as the instant matter is 

concluded suggests that the FAA's priority is not promoting safety and regulatory 

compliance, but rather imposing exorbitantly large civil penalties. 

VII. CONCLUSION 

Complainant's interpretation of the cited HMR's is not only in error, but 

'' Tr. 141:141:9-142:14. 

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arbitrary, capricious and devoid of any rational basis. Based upon this 

interpretation, Complainant has cited Martinaire with violations of requirements 

that do not exist. There is no regulatory or other legal requirement or any other 

publicly available authority that requires that NOPlC's be prepared to assist first 

responders. The NO PIC, by its very definition, is a notification to the pilot in 

command. There is no evidence, whatsoever, that the pilots of the 12 flights 

carrying the 17 parcels did not have this information or that their information was 

deficient. Quite to the contrary, all witnesses agree that the DHL and UPS coupons 

provided the substantive information required by the HMR and that the pilots were 

certainly aware of the dates of the flights, the flight numbers and where they had 

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 of the cited HMR's, Complainant has initiated an enforcement action 

and seeks the largest civil penalty ever against any air carrier, large or small, for 

alleged NO PIC violations. This penalty is devoid of any reasonable basis. The 

Administrative Law judge should not give the "due deference" that Complainant 

demands to such outlandish regulatory interpretations and civil penalty 

computations. 

FAA Case No. 2011SW700189/FDMS No. FAA-2013-0040 

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Respectfully 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 

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CERTIFICATE OF SERVICE 

The undersigned hereby certifies that on this 15th day of August, 2014, a true and 

correct copy of the foregoing 

MARTINAIRE AVIATION, LLC'S POST-TRIAL BRIEF 

was served as follows: 

The Honorable Richard C. Goodwin 

Office of Hearings, M-20 

1200 New jersey Avenue, 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] 

Federal Aviation 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 of the Regional Counsel, ASW -7 

2601 Meacham Boulevard, Suite 6E 

Fort Worth, 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 

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