u.s. DEPARTMENT OF TRANSPORTATION CE.IVED 

FEDERAL AVIATION ADMINISTRAT~E . OFFICE OF HEARINGS 

WASHINGTON, DC JUN 1 8 2013 

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 the 
pilot-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. 

2 
IV. 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. 

3 
Section 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 § 17 5. 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. 

4 
expressly 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. 

5 
In 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 

6 
date 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 1Z 94 4 434 027 4 5 93550) . The NO PIC 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 NO PIC for Flight No. 7 00 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. 

7 
group." 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." 

8 
In 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. 

9 
hazardous 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 

10 
sense 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 c E I v ED 

FEDERAL AVIATION ADMINISTRATION JUN 1 8 2013 

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 description 
for 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, 

2 
UN1210. 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 

NO PIC 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 

3 
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 

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

4 
Marlhlafre 

Special Agent Paul Klimas 

Federal Aviation Administration 

August 2, 2011 

Joint Security and Hazardous Materials Safety Office, Central 

2601 Meacham Boulevard 

Fort Worth, Texas 76137-4299 

Re: Martinaire Aviation, LLC 

EIR:2011SVV700189 

Dear Special Agent. Klimas: 

This letter is in response to Mr. Brian Buchanan's letter of investigation dated 

July 19, 2011, which Martinaire received on July 21,2011. At the outset, I would 

like to assure you that your letter, and the matters alleged therein, have merited 

Martinaire' s utmost attention and concern. As an FAA-certificated air carrier that 

has been in business for over 32 years, Martinaire is fully aware of its statutory and 

regulatory responsibilities and conscientiously strives to fulfill same in a highly 

professional and effective manner. 

Addressing the specific matters raised in the letter of investigation, the 

discrepancies noted during your July 8, 2011 audit and summarized in paragraphs 1 

through 14 of your letter are substantially correct. In short, the Notifications of 

Pilot-In-Command (NOPC's) were not properly completed, not only contrary to the 

applicable Hazardous Materials Regulations, but in derogation ofMartinaire's own 

policies, procedures and manuals (as more fully discussed below). 

You have also alleged that NOPC's involving shipments of Dry Ice, in many 

cases, lacked proper shipping names. Again, we do not dispute your findings and, 

again, these NOPC deficiencies were contrary to Martinaire's policies, procedures 

and manuals. 

As you are aware, Martinaire's General Operations Manual (GOM) reqnires 

that NOPC's be fully and accurately completed (please see GOM Section P, attached 

as Attachment A). 

4553 Glenn Curtiss Drive • Addison. TexRs 7!'i001-:i?44. ~7?-:i4~-!'i700. F"'" ~7?-:i4~-!'i7!'i0. wwwm<~rtin<~ire r.or 
In addition, Martinaire's FAA-Accepted/Approved Operations and Training 

Manual for the Acceptance and Transport of Dangerous Goods in Air 

Transportation, dated February 19, 2008: 

-specifically states that employees, agents and contract employees may not 

perform any assigned duties or responsibilities involving the acceptance, handling, 

storage or transportation of dangerous goods or hazardous materials (DGIHM) unless 

they have satisfactorily completed Martinaire' s dangerous goods training within the 

last 12 calendar months (Training Manual, Part One, page vi), which is more 

restrictive than the 24 calendar month requirement in the regulations; 

-prohibits the loading or transport of any DG/HM unless the NOPC has been 

completed (Training Manual, Part One, page 5); 

-requires that the pilot in command be given accurate and legibly written 

information (Training Manual, Part One, page 9); and 

-mandates that specific training modules be completed during initial and 

recurrent training (Training Manual, Part Two, page 3), including NOPC's (Training 

Manual, Part Two, page 3; Module 10). 

Excerpts from the above-cited Training Manual are attached as Attachments B, C, D 

and E. 

Martinaire's pilot-specific initial and recurrent training syllabus for 

HAZMAT requires that Module 10 (NOPC) training be given to all personnel (other 

than skycaps, ticket counter agents and other personnel engaged in baggage check -in 

procedures [not applicable to Martinaire]; specifies procedures for complying with 

49 CFR 175.33 and mandates that pilots and dispatchers are equally responsible for 

correctly filling out the NOPC (excerpts attached as Attachment F). 

As you will recall, the audit was followed by an outbriefing on July 8, 2011. 

Although Martinaire's Chief Pilot and Assistant Chief Pilot were quite capable of 

handling this outbriefing on Martinaire' s behalf, given the numbers and gravity of 

the discrepancies, I elected to personally participate to ensure that all discrepancies 

were uncovered and investigated and that all necessary and/or appropriate corrective 

action would be taken as quickly as possible. In response to some concerns that the 

format ofMartinaire's existing NOPC form might have contributed to these 

discrepancies, it was agreed that Martinaire would revise this form. This was done 

and by the following Monday, July 11, the form was not only revised, but printed 

and distributed system-wide. Copies of the old and new NOPC forms are attached as 

Attachments G and H. A copy of Chief Pilot Michael Bates' broadcast email to all 

pilots and flight followers advising of and transmitting this revision is attached as 

Attachment I); 

In addition, Martinaire has since taken the following corrective actions: 
Training: Martinaire reviewed and revised its training program for pilots and 

dispatchers to highten awareness and emphasize the requirement for accuracy in 

completing NOPC forms (copies of the revised training materials are attached as 

Attachments J and K). Dispatchers underwent supplemental training on July 14 and 

15 (training signoffs are are attached as Attachment L). On July 26, Chief Pilot 

Michael Bates sent another broadcast email to all pilots further clarifying how to 

complete the NOPC and attaching a verbatim copy ofHMR 175.33 (Attachment M); 

Auditing: The Dispatch Manager, Chief Pilot and Assistant Chief Pilot now 

perform daily audits of all new NOPC's. This is accomplished under my direct 

oversight. Any discrepancies are corrected and persons responsible for any errors 

are promptly notified and counseled; 

Cross-checking: Upon receipt ofNOPC'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. Each 

dispatch desk and computer has hard and electronic copies of the latest A.I.R. 

Shipper book. With the tables in both alphabetical and numerical order, confirming 

proper shipping information should be more or less instantaneous; 

I think that you will agree that Martinaire has been fully cooperative in this 

investigation and that its response to the FAA's audit findings and implementation of 

corrective actions was immediate and effective. In short, we believe that we have 

left "no stone unturned." 

Should you wish to discuss this matter further, or should you have any 

additional concerns that you believe that Martinaire has not fully addressed, please 

be assured that members of Martinaire' s Senior Management will make ourselves 

available at your convenience to resolve any remaining issues and concerns. 

letter. 

We thank you for your having afforded us the opportunity to respond to your 

With best regards, 

Very truly yours, 

~ Alan S. Rusinowitz 

Executive Vice President 

and Chief Operating Officer