## u.s. DEPARTMENT OF TRANSPORTATION 

# CE.IVED
FEDERAL AVIATION

## ADMINISTRAT~E . OFFICE OF HEARINGS WASHINGTON, DC 

## JUN 

## 1 82013

In the Matter of:
Martinaire Aviation, LLC Respondent

THE HONORABLE RICHARD C. GOODWIN ADMINISTRATIVE LAW JUDGE 

## HEARING DOCKET FAA DOCKET No. FAA-2013-0040

FAA Case No.2011SW700189 (Civil Penalty Action)
FDMS No. FAA-2013-0040

COMPLAINANT'S MOTION FOR DECISION
NOW COMES the Federal Aviation Administration (hereinafter "FAA") pursuant to Rule 218(5) of the Rules of Practice in FAA Civil Penalty Actions, 14 CFR § 13.218(5). Complainant hereby
moves the Court for an Order granting a Motion for Decision in favor of the Complainant, because there are no genuine issues as to material facts and the Complainant is entitled to a Motion for Decision as a matter of law. In support of this Motion, the Complainant states the following:

I. INTRODUCTION
Jurisdiction to hear this complaint is predicated upon the Federal hazardous material statute, 49 U.S.C. 5123(a) and the hazardous material regulations that are promulgated pursuant to this statute. On January 15, 2013, the Federal Aviation Administration filed its complaint against Martinaire Aviation LLC ("Martinaire"). On February 1, 2013, Martinaire through its attorney filed its answer pursuant to 14 CFR § 13.209(a)
The complaint alleges that Martinaire violated 49 CFR § 175.33(a) (1) of the hazardous material regulations when it accepted hazardous material aboard an aircraft for transportation by air and failed to provide the pilot-in-command the proper shipping name, hazard class and identification number of the hazardous material aboard the aircraft.
Martinaire also accepted hazardous material aboard an aircraft for transportation by air and failed to provide thepilot-in-command the proper shipping name, hazard class, identification number and any additional description requirements provided in§§ 172.202 and 172.203 of the hazardous material regulations. In addition, Martinaire accepted hazardous material aboard an aircraft for transportation by air and failed to provide the pilot-in-command the date of the flight.

The Federal Aviation Administration ("FAA") seeks a civil penalty of $206,550.00 for violation of the above stated regulations. This motion should be granted in its entirety because Martinaire's actions violate the hazardous material regulations, pose a serious threat to the safety of the public and constitute a systemic violation of the hazardous material regulations. Attached to this motion is the declaration of the Special Agent Paul Klimas.

II. ISSUES (1) Whether Martinaire's actions constitute a violation of 49 49 CFR § 175.33(a) (1), 49 CFR § 175.33(a) (1) (i), and 49 CFR 175.33(a) (7) of the hazardous material regulations. (2) Whether a civil penalty of $206,550.00 is appropriate for the facts and circumstances of this case.
III. STATEMENT OF MATERIAL FACTS TO WHICH THERE IS NO GENUINE DISPUTE
The following facts are undisputed:

1. Complainant admits that Martinaire is a "small business entity" as that term is utilized in Order 2150.38, FAA Compliance and Enforcement Program, Appendix C, Sanction Guidance Hazardous Materials Enforcement, Paragraph 5.
2. In 2012, Martinaire was assessed a civil penalty for transporting an undeclared hazardous material shipment in case No. 2011GL700205.
3. In 2009, Martinaire was assessed a civil penalty for violation of the hazardous material regulations involving Notice to Pilot-in-Command forms in case No. 2009NM700058.

2IV. STANDARD FOR MOTION FOR DECISION
Rule 218(5) of the Rules of Practice in FAA Civil Penalty Actions, Motion for Decision, 14 CFR § 13.218(5) is patterned after the summary judgment procedure set forth in Rule 56 of the Federal Rules of Civil Procedure. Debra Paris v. VA, EEOC Document No. 01953377 (1997). In Paris the court explained that:
The United States Supreme Court has stated that summary judgment is appropriate where the adjudicator determines that no genuine issue of material fact exists, as governed by the applicable substantive law. Anderson v. Liberty Lobby, Inc., 466 U.S. 242, 255

(1986). An issue is genuine if the evidence is such that a reasonable fact-finder could find in favor of the non-moving party. Oliver v. Digital Equip. Corp., 846 F. 2d 103, 105 (1st Cir. 1988). (Paris, at p. 2).

The party opposing summary judgment may not merely allege in a general or conclusive fashion that issues of fact exist or might exist. Fed. R. Civ. P. 56(e); Bragg v. Navistar Int'l Transp. Corp., 164 F. 3d 373, 378 (7th Cir. 1998). Instead, to avoid summary judgment, the non-movant must set forth "specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e); Beck Oil Co., Inc., v. Texaco Ref. & Mktg., 25 F.3d 559, 561 (7th Cir. 1996). "A dispute about a material fact is 'genuine' only if a reasonable jury could render a verdict for the non-moving party 'if the record at trial were identical to the record compiled in the summary judgment proceeding. '" Griffin v. City of Milwaukee, 74 F. 3d 824, 827 (7th Cir. 1996). As further explained below, there are no genuine issues of material fact in this case that need to be decided by a fact finder and motion for decision should be granted in favor of the Federal Aviation Administration ("FAA").

V. ANALYSIS: LIABILITY

Do Martinaire's actions constitute a violation of 49 CFR § 175.33(a) (1), 49 CFR § 175.33(a) (1) (i), and 49 CFR 175.33(a) (7) of the hazardous material regulations? Yes. The following analysis will explain the basis for the FAA's conclusion.



### 3Section 49 CFR § 175.33 Shipping paper and notification of pilot-in command provides as follows:
(a) When a hazardous material subject to the provisions of this subchapter is carried in an aircraft, a copy of the shipping paper required by § 175. 30 (a) (2) must accompany the shipment it covers during transportation aboard the aircraft, and 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. In the case of Class 1 materials, 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. Except for the requirement to indicate the type of package, any additional description requirements provided in §§172.202, and 172.203 of this subchapter must also be shown on the notification. 1
(7) The date of the flight;

In paragraph number one of its complaint, the FAA alleged that "on July 8, 2011, the Federal Aviation Administration conducted a comprehensive hazardous material inspection at Martinaire Aviation LLC ('Martinaire') headquarters, 4553 Glenn Curtis Drive, Addison, Texas." 2 In its answer, Martinaire

In short, §172.202 requires Description of hazardous material on shipping papers. (a) The shipping description of a hazardous material on the shipping paper must include: (1) The identification numberr (2) The proper shipping name,. (3) The hazard class or division numberr (4) The packing group in Roman numerals, (5) the total quantity of hazardous material (by mass or volume, or by activity for Class 7 materials) and must include an indication of the applicable unit of measurement

... (6) the total net mass per package, (7) The number and type packages must be indicated. §172. 203 Additional description requirements. requires additional information involving (a) Special Permits. (b) Limited Quantities. (c) Hazardous Substances. (d) Radioactive material. (e) Empty packagings

..., (k) Technical names for "n.o. s. ", (1) Marine Pollutants 2 Complaint, page 1,**~** 1. 4expressly admits that "on or about July 8, 2011, the FAA conducted an inspection at its headquarters at 4553 Glenn Curtis Drive, Addison, Texas and avers that the inspection included an FAA review and audit of approximately 500-600 Notifications to Pilot in Command ("NOPIC"s) for hazardous materials shipments transported on Martinaire's cargo-carrying flights from approximately April 1, 2011 through July 7, 2011." 3

In paragraph number 2 of its complaint, the FAA asserts that:

"The assessment revealed that Martinaire routinely failed to properly complete and comply with the requirements for the Notification to Pilot-In-Command for hazardous materials transported via cargo-carrying flights."

In answering paragraph 2, Martinaire "admits that the abovealleged inspection included a review of Notifications to Pilot in Command ("NOPIC") for hazardous materials transported by cargo-carrying flights from approximately April 1, 2011 through July 7, 2011, which MARTINAIRE avers amounted to some 500-600 NOPIC'S. Except as expressly admitted above, MARTINAIRE denies each and every, all and singular, allegations contained therein, and each and every part thereof, both generally and specifically, conjunctively and disjunctively." Although Martinaire partially denies the allegations in paragraphs one and two above, it is important to note that Martinaire admitted to these violations in a letter to the agency dated August 2, 2011 from Alan S. Rusinowitz, Executive Vice President and Chief Operating Officer. 4

In paragraph 3 of the FAA's complaint, it alleges that:
On June 22, 2011, the Notification to Pilot-In-Command ("NOPIC") for Martinaire flight number 637 (Woodward, Oklahoma (WWR)-Oklahoma City, Oklahoma (OKC)) failed to include the proper shipping name and hazard class as required for a hazardous materials shipment classified as "Compressed Gas, N.O.S., 2.2, UN1956" (tracking number lZ72642590100064105).

3 Martinaire's answer, page 2, Answering Paragraph 1. Except for this express admission, Martinaire denied "each and every, all singular, allegations contained therein, and each and every part thereof, both generally and specifically, conjunctively and disjunctively." Martinaire uses this statement in all its responses to complainant's allegations. 4 See FAA Exhibit A, attached.
5In the Notification to Pilot-In-Command attached as exhibit B, Martinaire fails to list the proper shipping name for Compressed Gas. The hazard class is 2.2 but Martinaire fails to list this class on the NOPIC form. In its answer, Martinaire admits that "the NOPIC for Flight No. 637 did not include the full shipping
name and hazard class." 5 In addition, in the Notification to Pilot-In-Command attached as exhibit B, Martinaire fails to list the proper shipping name for Dry Ice, hazard class 9, UN1845. Martinaire describes the proper shipping name for Dry Ice as "Boehringer" and "JCAH". 6 In its Answer Martinaire admits that "the NOPIC did not provide the shipping names for two dry ice shipments. " 7

In the NOPIC dated for Flight number 600, June 6, 2011, FAA exhibit C attached, Martinaire omits the packing group number for "Paint" and provides the incorrect UN identification number. 8 The packing group is II. In its answer, Martinaire admits "that the NOPIC FOR Flight No. 600 described the item as UN1245 when it should have been described as UN1263." 9 In its answer, answering paragraph 6, Martinaire also admits that "UN1245 is an identification number for methyl isobutyl ketone, a packing group II flammable liquid."

In the NOPIC dated June 6, 2011 for Flight number 682, FAA exhibit D attached, Martinaire fails to include the correct UN identification number for "Denatured Alcohol, 3, NA1987, PG II". Secondly, Martinaire omits the packing group number. UN1087 is the identification number for a hazard class 2.1 item, "Vinyl methyl ether, stabilized". In its answer at paragraph 7, Martinaire admits that "the NOPIC for Flight No. 682 described the item as UN1087, when it should have been described as UN1987." Martinaire also admits at paragraph 8 in its answer that "UN1087 is an identification number for vinyl methyl ether, stabilized."

In FAA exhibit E attached, Martinaire fails to include the correct shipping name and packing group number for "Petroleum Distillates, N.O.S., hazard class 3, UN1268, PG III,". In this NOPIC, Martinaire describes the hazardous material as "Distillates". Martinaire incorrectly lists the identification number as "128". Thirdly, neither the flight number nor the

5 See Martinaire's Answer, at page 2, Answering Paragraph 3. See page 2,**~** 4 of t.he FAA's complaint. 7 See Martinaire's answer, page 3, answering paragraph 4. See FAA's complaint, paragraphs 5 and 6. See Martinaire's answer, page 3, answering paragraph 5 6date appears on the NOPIC. In its answer, answering paragraph 9, Martinaire "admits that the NOPIC for Flight number 806 did not include the proper shipping name and packing group for two shipments for petroleum distillates." In answering paragraph 10, Martinaire "admits that "the NOPIC FOR FLIGHT No. 806 contained the shipping name 'Distillates' and the identification number '128' and that the flight number and date were not contained on the NOPIC."

In FAA exhibit F attached, the NOPIC dated May 24, 2011 for flight number 66, fails to include the proper shipping name, hazard class and correct identification number for a hazardous material classified as Helium, compressed, hazard class 2.2, UN1046. On the NOPIC, Martinaire lists the shipping name as "Comp Helium". No such hazardous material name exists. The identification number UN1064 on the NOPIC is for a product that is forbidden for transportation on cargo aircraft, Methyl Mercatan, 2.3 (2.1) UN1064. In answering paragraphs 11 and 12 in its answer, "Martinaire admits that the NOPIC for Flight No. 666 contained a typographical error involving a tracking number and listed an incorrect identification number, UN1064."

In the FAA's exhibit G attached, the NOPIC dated May 19, 2011 for Flight number 601 fails to include the complete proper shipping name, hazard class and packing group for the hazardous material identified as "Organophosphorus Compound, Toxic, Liquid, N.O.S. (Diphenylphosphoryl Azide), 6.1 UN3278, PGII" (tracking number 1Z9444340274 593550)

. The NOPIC identifies the hazard class as "5.1". The shipping name does not include
n.o.s. and no packing group appears on the NOPIC. 10 In its
answer to paragraph 13, Martinaire admits that "the NOPIC for Flight No. 601 did not contain the complete shipping name, hazard class and packing group." 11

In the FAA's exhibit H attached, the NOPIC dated May 14, 2011 for Martinaire Flight number 700 fails to include the complete proper shipping name and correct identification number
as required for a hazardous materials shipment properly classified as "Printing Ink, hazard class 3, UN1210. The identification number lists, "UN1457" on the NOPIC. The identification number UN1457 is for a product classified as, "Calcium peroxide, 5.1, UN1457". 12 In answering paragraph 14, in its answer, "Martinaire admits "the NOPIC for Flight No. 700 did not contain the complete shipping name, hazard class and packing

lO See FAA complaint at page 3,**~** 13. 11 See Martinaire 1 s answer at page 5, answering paragraph 13. 12 See FAA complaint at page 3, ]] 14 and 15. 7group." In answering paragraph 15, in its answer, Martinaire also admits that "there was a typographical error on the NOPIC dated May 14, 2011 involving the tracking number."

In the FAA's exhibit I attached, the NOPIC dated May 13, 2011 for Martinaire Flight number 688, fails to include the complete proper shipping name and packing group as required for
a hazardous materials shipment properly classified as "Corrosive liquid, acidic, inorganic, N.O.S., hazard class 8, UN3264. The NOPIC lists the proper shipping name as "NOS". "NOS" is not the
name of a hazardous material. In answering paragraph 16, in its answer, Martinaire admits "that the NOPIC for Flight No. 688 did not contain the complete shipping name, hazard class and packing group." In answering paragraph 17, in its answer, "Martinaire admits that "there was a typographical error on the NOPIC dated May 13, 2011 involving the tracking number."

In the FAA's exhibit J attached, the NOPIC dated April 14, 2011 for Martinaire Flight number 637, Martinaire fails to include the complete proper shipping name and packing group as required for a hazardous materials shipment properly classified
as "Chemical Kit, hazard class 9, UN3316" (tracking number 1ZSR91W80123229672). The proper shipping name on the NOPIC is "BECKMAN COULTER". On the same NOPIC form, Martinaire fails to include the complete proper shipping name and packing group as required for a hazardous materials shipment properly classified
as "Chemical Kit, hazard class 9, UN3316" (tracking number 1Z5R91W80123229672). The proper shipping name is listed as "BECKMAN COULTER". In answering paragraph 18, in its answer, "Martinaire admits "that the NOPIC for Flight No. 637 did not contain the complete shipping name and packing group." In answering paragraph 19, in its answer, Martinaire admits "that the NOPIC for Flight 637 did not contain the complete shipping
name and packing group and that there was a typographical error involving the tracking number."

In the FAA's exhibit K attached, the NOPIC dated April 12, 2011 for Martinaire Flight number 637, Martinaire fails to include the proper shipping name and packing group for shipments of Lithium Metal Batteries Packed with Equipment, hazard class 9, UN3091, PG II and Lithium Metal Batteries, hazard class 9, UN3090, PG II. Martinaire lists the proper shipping name in as "Medtronic" for two separate shipments. In answering paragraph 20, in its answer, Martinaire admits "that the NOPIC for Flight No. 637 did not contain the complete shipping name and packing group."

8In the FAA's exhibit L attached, the NOPIC dated April 12, 2011 for Martinaire Flight number 685, Martinaire fails to include the complete proper shipping name, hazard class, identification number and packing group as required for a hazardous materials shipment properly classified as "Caproic Acid, hazard class, UN2829, PG III". The NOPIC describes the shipment as "Carot" acid, hazard class 3, UN2800." Hazard Class "3" is designated for flammable liquids and UN2800 is the identification number for "Battery, wet, non-spillable". In answering paragraph 21, in its answer, Martinaire admits that "the NOPIC from Flight No. 685 did not contain the complete shipping name and packing group."

In the FAA's exhibit M attached, the NOPIC dated April 1, 2011 for Martinaire Flight number 66, Martinaire fails to include the complete proper shipping name and packing group as required for a hazardous materials shipment properly classified
as Corrosive, liquid, acidic, inorganic, n.o.s., hazard class 8, UN3264 13 • The proper shipping name was listed on the NOPIC as "Corr". No hazardous material exists with a name identified as "Carr''. In answering paragraph 23, in its answer, ''Martinaire admits that the NOPIC for Flight No. 666 did not contain the complete shipping name and packing group." In answering paragraph 24, in its answer, Martinaire admits "there was a typographical error involving the tracking number."

ANALYSIS: AFFIRMATIVE DEFENSES

Martinaire's seven affirmative defenses raise no genuine issue of fact. First, respondent claims the sanction is unwarranted by the "facts, safety in commerce and public interest and is not only excessive, but far exceeds policy, precedent and Complainant's own guidance table. " 14 The civil penalty in this case is based on the unique facts of this case, the previous violation history of Martinaire Aviation LLC and the factors listed in 49 U.S.C. § 5123(c). 15 In its second affirmative defense, Martinaire claims that "complainant's case is unwarranted and without basis or jurisdiction in law or fact. Jurisdiction to hear this matter is predicated upon the Federal**3** The FAA's Complaint inadvertently referred to this hazardous material as Sodium hydroxide Solution, hazard class 8, UN1824, at p. 4**~** 23. 14 Martinaire's First Affirmative Defense, Answer, at p. 8. 15 The assessment considerations are (a)The nature and circumstances of the violation,; (b) The extent and gravity of the violation; (c) The degree of respondent's culpability; (d) The respondent's prior violations; (e) The respondent's ability to pay; (f) The effect on the respondent's ability to continue in business; and (g) such other matters as justice may require. 9hazardous material statue, 49 U.S.C. 5123(a) and the hazardous material regulations that are promulgated pursuant to this statute.
Moreover, in Martinaire's third affirmative defense it claims that "the majority of employees involved were Martinaire pilots, who themselves prepared the NOPC's based upon information given to them by third parties

.... " This statement is
an admission that its pilots violated the NOPIC regulations. In its fourth affirmative defense, Martinaire claims that "it has proactively mitigated any and all damage such that this action is unwarranted by policy or the need for**safet~**... " Martinaire's corrective actions do not exceed the legal minimum requirement necessary for a substantial reduction in civil penalty. Martinaire's corrective action outlined in its fourth affirmative defense is what it is required to do to ensure the safety of the air transportation system.
Martinaire's fifth affirmative defense maintains that it "has taken all necessary corrective actions to avoid repeated mishaps such that penalties are redundant and will not result in any increase in safety." This action is not the first enforcement action against Martinaire. In fact, its previous corrective action for past infractions of the same nature did not prevent this incident.

In its sixth affirmative defense Martinaire claims that the FAA violated the 2150.38 Order by the following:

• the FAA compounded the alleged violations;
• the FAA seeks civil penalties in excess of those suggested in said Order's Appendix C.
• the FAA did not take into consideration considerable corrective action.
• the FAA's treatment of Martinaire is arbitrary and capricious because it treats Martinaire as a Group II carrier.

• Martinaire is a small business.

In response to this affirmative defense, the FAA considers the unique facts of this case, the previous violation history of Martinaire Aviation LLC and the factors listed in 49 U.S.C. § 5123(c). Based on these factors a civil penalty of $206,550.00 is warranted. Finally, in its seventh affirmative defense Martinaire claims that "complainant's case is devoid of any



### 10sense of proportionality." None of respondent's affirmative defenses raise a genuine issue of material fact.

I. ANALYSIS: CIVIL PENALTY

A civil penalty of $206,550.00 is appropriate for the facts and circumstances of this case. "In determining the amount of the penalty, the decisionmaker must consider the 'nature, circumstances, extent and gravity of the violation,' and with respect to the violator, 'the degree of culpability, any history of prior violations, the ability to pay, and any effect on the ability to continue to do business,' and 'other matters that justice requires'" (49 U.S.C. § 5123 (c))

. 16

Martinaire Aviation L.L.C. 17 is an American cargo airline based on the grounds of Addison Airport in Addison, Texas. It operates feeder flights for overnight package delivery services for UPS and DHL. Martinaire conducts operations exclusively under Part 135 and operates more than twenty five aircraft in its fleet. The company transports hazardous materials to various locations with its fleet on a regular basis.
Martinaire's violation history is an aggravating factor. In 2012, Martinaire was issued an Order Assessing Civil Penalty for $15,000.00 for the illegal shipment of hazardous material in FAA Case No. 2011GL700205. In 2009 Martinaire was assessed a civil penalty of $20,000.00 for violation of the hazardous material regulations involving Notice-to-Pilot in Command in
case number 2009NM700058. Also, in 2009 a letter of warning was issued against Martinaire for violations of Notice to Pilot-inCommand forms in case number 2009SW700185. Finally, in 2008 Martinaire was issued a warning notice for violations of the Notice to Pilot in Command requirements in case number 2008GL700326.

Martinaire implemented the following corrective action:

• Reviewed and revised its training program for pilots and dispatchers to heighten awareness and emphasize the requirement of accuracy in completing NOPC forms.

16 Husky Corporation, FAA Order No. 2010-8 (June 16, 2010) at p.13. 17 Martinaire files taxes as a partnership. The company is owned by three United States Corporations. Martinaire Inc., owns 70% of the company; MidAtlantic Freight owns 18% of the company; and Union Flights owns 12% of the company. Mid-Atlantic Freight is owned by Atlantic Aero. Atlantic Aero is owned by an aviation company. Berkeley Insurance owns the aviation company. Alan S. Rusinowitz, Executive Vice President and Chief Operating Officer confirmed this information in his deposition, p. 21-29. 11• Dispatchers underwent supplemental training on July 14, and 15, 2011.
• On July 26, Chief Pilot Michael Bates sent another broadcast email to all pilots further clarifying how to complete the NOPC.
• The Dispatch Manager, Chief Pilot and Assistant Chief Pilot
now perform daily audits of all new NOPC's. Any discrepancies are corrected and persons responsible for any errors are promptly notified and counseled.
• Upon receipt of NOPC'S from the pilots in command (either via FAX or telephone), dispatchers are required to check and confirm that the information contains the proper shipping name, UNID number and Class. If any errors are found, they are to be corrected prior to the aircraft's departure Although these corrective actions are commendable, they do not exceed the legal minimum requirement to warrant a reduction in civil penalty. This case is the third civil action against Martinaire in a relatively short time. When the pilots or dispatch for Martinaire fail to identify the kind of hazardous material carried on an aircraft, they put the lives of first responders, its pilots and the entire air transportation system at risk.
CONCLUSION

In short, Martinaire has violated 49 CFR § 175.33(a) (1), 49 CFR § 175.33(a) (1) (i), and 49 CFR 175.33(a) (7) of the hazardous material regulations. These actions pose a serious threat to the air transportation system in America. In weighing all the totality of facts and circumstances, a civil penalty of no less than $206,550.00 is warranted. Based on the above-stated evidence, the Complainant requests that the Administrative Law Judge enter an Order against Martinaire for each and every regulatory violation cited in its Complaint and assess a civil penalty against Martinaire for $206,550.00.

12

## u.s. DEPARTMENT OF

# TRANSPORTATI~

# E

# cEI 

# v ED
FEDERAL AVIATION ADMINISTRATION 

## JUN 1 82013 

## HEARING DOCKET OFFICE OF HEARINGS WASHINGTON, DC

In the Matter of:

Martinaire Aviation, LLC Respondent

THE HONORABLE RICHARD C. GOODWIN ADMINISTRATIVE LAW JUDGE FAA DOCKET No. FAA-2013-0040

FAA Case No.2011SW700189 (Civil Penalty Action)

FDHS No. FAA-2013-0040

DECLARATION

1. My name is Paul Klimas. I am over the age of twenty-one and
am in all ways competent to make this declaration.

2. I am a Hazardous Materials Special Agent in the Hazardous Materials Section in the Federal Aviation Administration Regional Office in the Southwest Region. I have worked as a hazardous material Special Agent for fourteen years.
3. On July 8, 2011, I conducted the hazardous materials inspection at Martinaire Aviation L.L.C. headquarters, 4553 Glenn Curtis Drive, Addison, Texas. I reviewed the following attached Notification to Pilot-In-Command ("NOPIC") forms. I received these forms from the Chief Pilot, Michael Bates. The attached NOPICs are a true and accurate representation of what the file contained on the date of the inspection of Martinaire Aviation, LLC.

4. The NOPIC, dated June 22, 2011 for Martinaire Flight number 637, omits the proper shipping name and hazard class as required for a hazardous materials shipment classified as "Compressed Gas, N.O.S., 2.2 UN1956". This NOPIC omits the proper shipping
name for two shipments properly classified as Dry Ice, 9, UN1845, PG III. The NOPIC incorrectly lists the proper shipping
names as "Boehringer" and "JCAH", respectively. (See Exhibit B, attached)

. 5. The NOPIC, dated June 6, 2011 for Martinaire Flight number 600, omits the proper hazardous material shipping descriptionfor a shipment classified as Paint, hazard class 3, UN1263, PG II. The packing group was not provided. The NOPIC describes the hazardous material as "Paint, hazard class 3, UN1245." UN1245 is the identification number for another hazardous material, methyl isobutyl ketone. (See Exhibit C, attached)

6. The NOPIC, dated June 6, 2011 for Martinaire Flight 682, fails to include the correct UN identification number for a hazardous material shipment properly classified as "Denatured Alcohol, 3, NA1987, PG II". The NOPIC describes the item as "Denatured Alcohol, 3, UN1087". UN1087 is the identification number for a hazard class 2.1 item, "Vinyl methyl ether, stabilized." The NOPIC does not provide the packing group. (See Exhibit D, attached).

7. The NOPIC for the Martinaire Flight associated with tracking numbers 8771203122 and 8771205111 fails to include the correct proper shipping name and packing group as required for two hazardous material shipments properly classified as "Petroleum Distillates, N.O.S., hazard class 3, UN1268, PG III,". The NOPIC associated with tracking number 8771203122 lists "128" on the NOPIC. "128" is not a recognized identification number. No packing group is listed for both shipments. The NOPIC fails to list the flight number and the date. (See Exhibit E, attached)

8. The NOPIC, dated May 24, 2011 for**~1artinaire** Flight number 66, fails to include the complete proper shipping name, hazard class and correct identification number as required for a hazardous material shipment properly classified as Helium, compressed, hazard class 2.2 UN1046. The identification number
on the NOPIC, "UN1064", is for a product forbidden for transportation on cargo aircraft, Methyl Mercatan, 2.3 (2.1) UN1064. (See Exhibit F, attached).

9. The NOPIC, dated May 19, 2011 for Martinaire Flight number 601, fails to include the complete proper shipping name, hazard class and packing group as required for a hazardous material shipment properly classified a.s "Organophosphorus Compound, Toxic, Liquid, N.O.S. (Diphenylphosphoryl Azide), 6.1 UN3278, PGII" (tracking number 129444340274593550). The NOPIC identifies the hazard class as "5.1". (See Exhibit G, attached).
10. The NOPIC, dated May 14, 2011 for Martinaire Flight number 700, fails to include the complete proper shipping name and correct identification number as required for a hazardous material properly classified as "Printing Ink, hazard class 3,

2UN1210. The NOPIC incorrectly lists "UN1457" as the identification number. The identification number "UN1457" is for a product classified as, "Calcium peroxide, 5.1, UN1457". (See Exhibit H, attached).

11. The NOPIC, dated May 13, 2011 for Martinaire Flight number 688, fails to include the complete proper shipping name and packing group as required for a hazardous material shipment properly classified as "Corrosive liquid, acidic, inorganic, N.O.S., hazard class 8, UN3264. The NOPIC incorrectly lists "NOS" as the proper shipping name. (See Exhibit I, attached)

12. The NOPIC, dated April 14, 2011, for Martinaire Flight number 637 and associated with tracking number 1ZSR91W80123229672, fails to include the complete proper shipping name and packing group as required for a hazardous materials shipment properly classified as "Chemical Kit, hazard class 9, UN3316." The NOPIC incorrectly lists "BECKMAN COULTER" as the proper shipping name. The NOPIC associated with tracking number 1ZSR91W80123218942, fails to include the complete proper shipping name and packing group as required for a shiprr,ent properly classified as "Sodium hydroxide Solution, hazard class 8, UN1824." The NOPIC incorrectly lists "BECKMAN COULTER" as the proper shipping name. (See Exhibit J, attached).

13. The NOPIC for Martinaire Flight number 637, dated April 12, 2011 and associated with tracking numbers 1Z8847490150235015 & 1Z8847490150247628, fails to include the proper shipping name and packing group for shipments classified as Lithium Metal Batteries Packed with Equipment, hazard class 9, UN309l, PG II and Lithium Metal Batteries, hazard class 9, UN3090, PG II. The NOPIC incorrectly lists "Jiiledtronic" as the proper shipping name. (See Exhibit K, attached).

14. The NOPIC for Martinaire Flight number 685, dated April 12, 2011 and associated with tracking number 1Z074E300205633517 fails to include the complete proper shipping name, hazard class, identification number and packing group as required for a hazardous materials shipment properly classified as "Caproic Acid, hazard class, UN2829, ?G III." Hazard Class 3 applies to flammable liquids and UN2800 is the UN identification number for "Battery, wet, non-spillable". The NOPIC incorrectly lists "Carot Acid" as the proper shipping name. (See Exhibit L, attached)

. 15. The NOPIC for Martinaire Flight number for Flight number 66, dated April 1, 2011 fails to inclucle the complete proper

3shipping name and packing group as required for a hazardous materials shipment properly classified as Corrosive, liquid, acidic, inorganic, n.o.s., hazard class 8, UN3264. The NOPIC incorrectly lists "Carr" as the proper shipping name. (See Exhibit M, attached).

16. Martinaire's incomplete Notification to Pilot-In-Command forms fail to identify the kind of hazardous material carried on Martinaire's aircraft and put the lives of first responders, its pilots and the entire air transportation system at risk.

17. Based on the facts of this case, the previous violation history of Martinaire Aviation LLC and the factors listed in 49 U.S.C. § 5123(c) a civil penalty of $206.550.00 is warranted in this case.



# /) / ' Signed:fa,_

# _a_'-'-_J__::6=r~A-=-·c.-:~__.--t't_-::,4--."""~~ 1-

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4

# Marlhlafre

SpecialAgentPaul Klimas FederalAviationAdministration August2, 2011

Joint SecurityandHazardousMaterials SafetyOffice, Central 2601 MeachamBoulevard FortWorth, Texas76137-4299

Re: MartinaireAviation, LLC 

### EIR:2011SVV700189

DearSpecialAgent. Klimas:

Thisletterisinresponseto Mr. BrianBuchanan'sletterofinvestigationdated July 19, 2011,whichMartinairereceivedonJuly21,2011. Atthe outset, Iwould liketo assureyouthatyourletter,andthematters allegedtherein, havemerited Martinaire'sutmost attentionandconcern. As anFAA-certificatedaircarrierthat hasbeeninbusinessfor over32years, Martinaireisfully aware ofitsstatutoryand regulatoryresponsibilities andconscientiously strivesto fulfill sameina highly professional and effectivemanner. Addressingthe specific mattersraisedintheletterofinvestigation,the discrepanciesnotedduringyourJuly 8, 2011 auditand summarizedinparagraphs 1 through 14ofyourletterare substantiallycorrect. Inshort, theNotificationsof Pilot-In-Command(NOPC's)werenotproperly completed,notonly contrarytothe applicableHazardousMaterialsRegulations,butinderogationofMartinaire'sown policies,proceduresandmanuals(asmorefullydiscussedbelow).

Youhave also allegedthatNOPC'sinvolving shipmentsofDryIce, inmany cases, lackedproper shippingnames. Again, we donotdisputeyourfindings and, again,theseNOPC deficiencieswerecontraryto Martinaire'spolicies, procedures andmanuals.

Asyouare aware,Martinaire'sGeneral OperationsManual(GOM)reqnires thatNOPC'sbefully andaccurately completed(please seeGOM SectionP, attached
asAttachmentA).

4553 Glenn Curtiss Drive •Addison. TexRs 7!'i001-:i?44.**~7?-:i4~-!'i700.** F"'"**~7?-:i4~-!'i7!'i0. wwwm<~rtin<~ire**  r.orIn addition, Martinaire's FAA-Accepted/ApprovedOperations and Training ManualfortheAcceptance and TransportofDangerous Goods inAir Transportation, datedFebruary 19, 2008: -specifically statesthat employees, agents andcontract employeesmaynot perform any assignedduties orresponsibilities involving the acceptance, handling, storage ortransportation ofdangerous goods orhazardousmaterials (DGIHM) unless theyhave satisfactorilycompletedMartinaire'sdangerous goodstrainingwithinthe last 12 calendarmonths (TrainingManual, PartOne, pagevi), whichis more restrictivethanthe24calendarmonthrequirementintheregulations; -prohibitsthe loading ortransport ofanyDG/HM unlessthe NOPC hasbeen completed (TrainingManual, Part One, page 5); -requiresthatthepilotincommandbe givenaccurate andlegiblywritten information (TrainingManual, Part One,page 9); and

-mandatesthat specifictrainingmodulesbe completedduringinitial and recurrenttraining (TrainingManual, Part Two,page 3), includingNOPC's (Training Manual, PartTwo, page 3; Module 10). Excerpts fromthe above-citedTrainingManual are attached asAttachmentsB,C, D and E.
Martinaire'spilot-specificinitialandrecurrenttraining syllabus for HAZMATrequiresthatModule 10 (NOPC)trainingbe givento allpersonnel (other than skycaps,ticketcounteragents and otherpersonnel engaged inbaggagecheck-in procedures [not applicabletoMartinaire]; specifiesproceduresfor complyingwith 49 CFR 175.33 andmandatesthatpilots anddispatchers areequallyresponsiblefor correctlyfilling outtheNOPC (excerpts attached asAttachmentF).

Asyouwillrecall, the auditwas followed byanoutbriefingonJuly 8, 2011. AlthoughMartinaire's ChiefPilotandAssistant ChiefPilotwerequite capableof handlingthisoutbriefing onMartinaire'sbehalf, giventhenumbers andgravityof thediscrepancies,I electedtopersonallyparticipateto ensurethatalldiscrepancies
wereuncovered andinvestigatedandthatall necessary and/or appropriatecorrective actionwouldbetakenas quicklyaspossible. Inresponseto some concernsthatthe formatofMartinaire'sexistingNOPC form mighthave contributedto these discrepancies, itwas agreedthat Martinairewouldrevisethis form. Thiswas done andbythefollowingMonday, July 11, theform wasnotonlyrevised, butprinted anddistributed system-wide. Copies ofthe old andnewNOPCforms are attached as AttachmentsG andH. A copyofChiefPilotMichaelBates' broadcastemailtoall pilotsandflight followers advisingofandtransmittingthisrevisionis attachedas AttachmentI);

Inaddition, Martinairehas sincetakenthefollowingcorrective actions:Training: Martinairereviewed andrevised its trainingprogramfor pilots and dispatchers to highten awareness and emphasizetherequirementfor accuracy in completingNOPC forms (copies ofthe revisedtrainingmaterials are attached as Attachments J and K). Dispatchersunderwent supplementaltraining on July 14 and 15 (training signoffs are are attached as AttachmentL). OnJuly 26, ChiefPilot MichaelBatessentanotherbroadcastemail to all pilotsfurther clarifyinghowto completetheNOPC andattaching averbatimcopyofHMR 175.33 (AttachmentM); Auditing: TheDispatchManager, ChiefPilotandAssistantChiefPilotnow perform daily audits ofallnewNOPC's. This is accomplishedundermy direct oversight. Any discrepancies are corrected andpersonsresponsiblefor any errors arepromptlynotified and counseled; Cross-checking: UponreceiptofNOPC'sfrom thepilotsincommand (either viaFAXortelephone), dispatchers are requiredtocheck and confirmthatthe informationcontainstheproper shippingname,UNIDnumberand Class. Ifany errors are found, theyare to be correctedpriorto the aircraft's departure. Each dispatchdesk andcomputerhas hard and electronic copies ofthelatestA.I.R. Shipperbook. Withthetables inbothalphabetical andnumerical order, confirming propershippinginformation shouldbemore orless instantaneous;

Ithinkthatyouwill agreethatMartinairehasbeenfullycooperativeinthis investigationandthatitsresponse to the FAA'saudit findings andimplementation of corrective actionswas immediate and effective. Inshort, we believethatwe have left "no stoneunturned."
Shouldyouwishto discussthismatterfurther, or shouldyouhave any additional concernsthatyoubelievethatMartinairehasnotfully addressed, please be assuredthatmembers ofMartinaire's SeniorManagementwill make ourselves available at your convenienceto resolve anyremaining issues andconcerns.

letter. Wethankyoufor yourhaving affordedusthe opportunityto respondto your

Withbestregards, Verytrulyyours,

# ~ Alan S. Rusinowitz ExecutiveVicePresident and ChiefOperating Officer