### U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, D.C.

IN THE MATTER OF: l 

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COASTAL AIR TRANSPORT, INC. FAA Docket No. FAA-2011-1005 Judge J.E. Sullivan Respondent. FAA CASE NO. 2010S0700037

AGENCY BRIEF IN SUPPORT OF ITS ALTERNATIVE MOTION FOR HEARING ON SANCTION ONLY
Complainant, by and through the undersigned counsel, pursuant to §13.218(a) of the

Rules of Practice (14 C.P.R. 13.218(a)), hereby files its Brief in Support of Its Alternative

Motion for Hearing on Sanction Only filed February 21, 2012. In support**th~reof,** 

### Complainant states the following:

1.



### On September 8, 2011, the Complainant filed its Complaint in the above matter.

On March 23, 2012, in response to the Complainant Motion for Decision on the Pleadings, or in

the Alternative Hearing on Sanction Only dated February 21, 2012, Respondent responded in part

to the allegations contained within the Complaint in its Motion to Dismiss. The Respondent
specifically denied the allegations in paragraphs 2, 3, 6, 7, 10, 11, 12, 13, 14, 15, 16, 17, and 18.

However, Respondent failed to specifically address the allegations in paragraphs 4, 5, 8, and 9.

As a result, the allegations in paragraphs 4, 5, 8, and 9 should be deemed admitted. As a result,

the Respondent has admitted that on or about October 21, 2009, a U.S. Customs and Boarder

### Protection Officer discovered a non-specification fiberboard box containing hazardous materials

on bard Flight 413 at the Alexander Hamilton Airport (STX) in Saint Croix, U.S. Virgin Islands.

The box contained two plastic bags labeled "Hazmatpac," which contained two bottles of
approximately 750ml each labeled fuel oil UN#1993. The Respondent has also admitted that at

all times material in the Complaint, the above-described shipment was list and described on the 

### " bill of lading. Finally, Respondent has admitted that Mike Foster of Coastal Air signed the bill

of lading which described the above-referenced package.



### On or about December 11, 2009, during the investigation of this case, FAA Special Agent

Juan Bulted forwarded a Letter of Investigation to Respondent and informed the Respondent that

the Agency was investigating whether it violated the Hazardous Materials Regulations as a result

of its carriage of hazardous materials on its flight operated on October 21, 2009. See Exhibits 1

and 2. Special Agent Bulted requested that the Respondent provide various documents
including copies of the Material Safety Data Sheet for the material it carried, as well as copies of

the air waybill(s), shipper's pick up record and other relevant documents associated with the
shipment in question. On January 14, 2010, in response to the Letter of Investigation,
Respondent provided a Material Safety Data Sheet (MSDS) for low sulfur diesel fuel (7 pages),

as well as copies of the Bill of Lading for the shipment. See Exhibits 3, 4 and 5.

The MSDS provided by Respondent identifies that the material transported by
Respondent on October 21, 2009 is classified as Diesel Fuel, Hazard Class 3, PG 

### ill, with a DOT

identification number of NA 1993. See Exhibit 4 at page 5, Section 14. Transportation

Information. Additionally, the Bill of Lading provided by Respondent also identifies the contents

of the package transported by Respondent on October 21, 2009 as Diesel Fuel, a hazardous

material. Finally, the Complainant asks that the Administrative Law Judge take judicial notice of



### 2

### 14 C.F .R. 

### § 172.101 Hazardous Material Table which identifies both Diesel fuel as a Hazard

Class 3, PG 

### ill, NA 1993 material, and fuel oil .as a Hazard Class 3, PG 

### ill, NA 1993 material.

See Exhibit 6, excerpts from 14 C.F .R. 

### § 172.101 Hazardous Materials Table.

Furthermore, the Respondent has admitted in his pleading on July 9, 2012, that he

operated a flight on October 21, 2009, as Coastal Air Flight 413 arriving at the Alexander

Hamilton Airport (STX), Saint Croix, U.S. Virgin Islands.

Therefore, despite Respondent's denial of paragraph 2, 3, 10 of the Complaint the

evidence clearly establishes that on October 21, 2009, Respondent knowingly accepted for

transportation by air and transported aboard an aircraft a one-piece shipment which contained a

hazardous material on flight number 413 arriving at the Alexander Hamilton Airport (STX),

Saint Croix, U.S. Virgin Islands.

Finally, the evidence also establishes that the shipment of hazardous materials transported

by Respondent on October 21, 2009, was not accompanied by a Shipper's Certification or

Declaration of Dangerous Goods, and did not contain a MSDS, packing slips, or any hazardous
markings or warnings labeled on the box. On 

### November 2, 2009 U.S. Customs Agent Renael

Steele, provided a statement to Special Agent Juan Bulted in which he described the condition of
the package which contained the hazardous materials. See Exhibit 7. Additionally the U.S.

Customs & Border Protection Agency provided photographs of the box which contained the

hazardous materials at issue in this case. See Exhibit 8. The photographs clearly show the

condition of the box which contained the hazardous materials transported by Respondent on

October 21, 2009.

49 C.F.R. Part 172 establishes the labeling, marking, and shipping paper requirements for

packages which contain hazardous materials. The photographs show that contrary to the HMR

3

### the package did not contain hazardous materials labels or markings. §l75.3(a)(3). Additionally,

despite the Respondent's denial of paragraphs 11, 12, and 13 of the Complaint, the evidence

clearly shows that shipment of hazardous mc:tterials transported on October 21, 2009, was not
accompanied by shipping papers that were in accordance with 49 C.F.R. Part 172.

Therefore, despite Respondent's denial of paragraph 11, 12, 13 and 14 of the Complaint

the evidence clearly establishes that on October 21, 2009, Respondent accepted a shipment of

hazardous materials when the outer container was not marked with the proper shipping name, the

assigned identification number, standard orientation markings, or a "FLAMMABLE LIQUID"

label and which was not accompanied by shipping papers required by 49 C.F.R. Part 172,

Subpart C.

By reason of the foregoing, there remain no genuine issues of material fact. The

Respondent's admissions coupled with the evidence presented clearly establish that Respondent

violated the Hazardous Material Regulations. Thus, the only remaining issue is sanction.

2.

Congress determined that the unregulated transportation of hazardous materials

constitutes a threat to public safety in all forms of transportation. Congress addressed that threat

in 1974 by enacting the Hazardous Materials Transportation Act (HMTA). Congress, in passing

the HMTA, as amended, P.L. 93-633, 88 Stat. 2156, 49 U.S.C. app. §1801 

### et. seq., now codified

as 49 U.S.C. §5101 

### et. seq., recognized the risks to life and property which are inherent in the

transportation of hazardous materials in commerce. Because of the serious safety risks

associated with the transportation of hazardous materials, Congress intended that the FAA

vigorously enforce the hazardous materials regulations.

4j



### 3.

Congress reiterated its concern about the improper transportation of hazardous materials

when it increased the maximum civil penalties. In 

### 1990, Congress passed the Hazardous

Materials Transportation Uniform Safety Act (HMTUSA), P.L. 101-615, which amended the

HMTA by increasing the maximum civil penalty for each violation of the HMTA from $10,000

to 1 

### $25,000, and establishing a $250 minimum civil penalty for each violation. Pursuant to 14

C.P.R. § 13.305(d), and effective January 21, 1997, the maximum civil penalty that could be

assessed for a violation of the Federal hazardous material statue or the HMR was $27,500. On
February 11, 2002, the FAA again published a final rule (67 FR 6364) adjusting monetary civil

penalties.**Effe~tive** 

### March 30, 2002, the maximum civil penalty that can be assessed for a

violation of the Federal hazardous materials statute was raised to $30,000. On May 16,2006, the

FAA published a final rule (71 FR 28518) adjusting monetary civil penalties. Effective June 15,

2006, the maximum civil penalty that can be assessed for a violation of the Federal hazardous

materials statute was raised to $50,000 ($1 00,000 if death, serious illness, severe injury, or

substantial property damage results). (The minimum amount that can be assessed for a nontraining violation remained at $250; the minimum amount for a training-related violation was set

at $450.)



## 4.

The HMR set forth regulations for the transportation of hazardous materials, also known

as dangerous goods. Hazardous materials are substances or materials that the Secretary of
Transportation has determined is capable of posing an unreasonable risk to health, safety, and

property when transported in commerce, and has designated as hazardous under section 503 of



### 5

### Federal Hazardous materials transportation law (49 U.S.C. 5103). 1 

### A knowing violation of the

statute or the HMR can support the assessment of a civil penalty between $250 and $100,000. A

person acts knowingly when the person has actual knowledge of the facts giving rise to the

violation; or a reasonable person acting in the circumstances and exercising reasonable care

would have that knowledge. 49 U.S.C. §5123(a)(1)(A). In 

### the instant case, Coastal Air

Transport had actual knowledge of the facts giving rise to the violation- i.e., that it transported a

fiberboard box containing two plastic bags labeled "Hazmatpac," which contained two bottles of
approximately 750ml each labeled fuel oil UN#1993. Fuel Oil or Diesel Fuel, UN#1993 is a

hazardous material under the HMR and is classified as a Flammable Liquid, Hazard Class 3, PG



### ill. See. Exhibits 4 and 6. Additionally, Coastal Air Transport had actual knowledge that it
designated itself as a "Will-Not-Carry'' hazardous materials/dangerous goods Air Carrier with the

Federal Aviation Administration. 2 

### See Exhibit 9.

Moreover, the legislative history of the Hazardous Materials Transportation Act indicates

that Congress intended civil penalties be imposed on persons who knew about the act that

constituted a violation, but were unaware of the law. In 

### the Matter of TCI Corporation, FAA

Order No. 92-77 (1992) at 8-9, n.13 (quoting the following language in the conference

substitute: "a civil penalty may be imposed only upon proof that the defendant knowingly

committed the act which constitutes the violation (it is not necessary to show that he knew the act

constituted a violation)

... 

### (emphasis added)" S. Conf. Rep. No. 1347, 93rd Cong., 2d Sess.,

1 Hazardous materials also includes hazardous**subs~ces,** hazardous wastes, marine pollutants, elevated temperature materials, materials designated as hazardous in the Hazardous Materials Table (see 49 CFR 172.101), and materials that meet the defining criteria for hazard classes and divisions in part 173 of subchapter C of 49 CFR. The term hazardous material includes and is interchangeable with the term dangerous goods, as used in the International Civil Aviation Organization (ICAO) Technical Instructions. 2 14 C.F.R. Appendix 0, establishes the Hazardous Materials training requirements for air carrier certificate holders under Part 121 and 135. Certificate holders with a prohibition in their operation specifications against carrying or handling hazardous materials are termed "will-no-carry" carriers.



### 6

### reprinted in 

### 1974 U.S. Code Cong. & 

### Ad. News, 7669, 7686). It 

### is clear Congress intended to

prevent persons from relying on ignorance of the law as an excuse in civil hazardous materials

cases. In 

### the Matter of Smalling, FAA Order No. 94-31 (1994).



### 5.

After establishing violations of the HMR, as a general matter, the FAA will seek to
impose a sanction that is sufficiently deterrent but not excessive, in order to comply with the
underlying purposes of the Federal hazardous material transportation law and the HMR. In



### determining the sanction to be assessed, penalty criteria set forth in 49 U.S.C. §5123 must be

considered. These criteria are the nature, circumstances, extent, and gravity of the violation; 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). This approach was reiterated on April 21, 1999, when the FAA published

its Policy on Enforcement of the Department of Transportation Hazardous Materials Regulations

(HMR): Penalty Guidelines (Sanction Guidance). 64 Fed. Reg. at 19443. With the FAA's

hazardous materials sanction guidance some of the considerations are already factored into the
categories in the Hazardous Material Sanction Guidance Matrix. The statutory factors are further

considered under the weighting analysis that is performed to indicate the amount of the civil
penalty within the appropriate range, i.e., 

### at the minimum, moderate, or maximum portion of the

sanction range.

The Matrix recognizes that an even higher penalty could be warranted for a significantly

aggravated case, consistent with the increased maximum penalty of $50,000 imposed by the Safe,

Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEU-LU),

Public Law 109-59, August 10, 2005. Additionally, the Matrix reflects the potential $100,000

7)'



### penalty, also imposed by SAFETEU-LU, for a violation that results in death, serious illness, or

severe injury to any person, or substantial destruction of property.



### 6.

The Hazardous Materials Sanction Guidance is designed to promote better consistency so

that similar penalties are imposed in similar cases. The specified Matrix ranges (e.g. $250-$550,

or $15,000-$32,500) are intended to reflect the nature, circumstances, extent, and gravity of the

case as compared with other types of cases. See Exhibit 10. Each case, however, is evaluated on

its own facts. Violations of Part 175 of the HMR, which establish particular requirements for air

carriers and other aircraft operators, are contained in a separate matrix. See Exhibit 11. A

sanction may differ from the specified Matrix ranges when the facts and circumstances of a case

support either a greater or lesser penalty.

7.



### The complaint in this case charged Respondent with sixteen regulatory (16) violations

of the Department of Transportation Hazardous Materials Regulations (HMR) (Title 49 of the

Code of Federal Regulations). In accordance with Section 5123(a) of Title 49 of the United

States Code (Transportation) (49 U.S.C. § 

### 5123(a)), Respondent is liable for a civil penalty not

lower than $250, nor greater than $50,000 for each regulatory violation of the HMR.

However, utilizing the FAA Sanction Guidance matrix, Respondent's violation of the sixteen

regulations are grouped into five (5) categories of offense: (1) Improper acceptance of hazmat

for air transportation; (2) Failure to inspect hazmat shipment properly; (3) Failure to provide

hazmat training, maintain records of training, or meet minimum requirements for hazmat

training; (4) Failure to notify FAA properly of incident/discrepancies in hazmat shipment; and

(5) Failure to provide notice to the pilot-in-command.

8

### As described in the Sanction Guidance, a weighting analysis was performed to determine

the appropriate amount of civil penalty to assess. A series of questions reviewing factors
involving the nature, circumstances, extent and gravity of the violation, the violator's degree of
culpability, and the violator's history of violations was answered. Each response was assigned a

relative weight of minimum, moderate, or maximum. Based on the totality of the facts and

.
circumstances of this case, a final aggregate weight of MAXIMUM was assigned.

Under the Sanction Guidance Matrix, Respondent was determined to be a Group IV, 14

C.F.R. Part 135 Air Carrier. 3 

### Under its Air Carrier program, Respondent is not authorized to

transport hazardous materials in air commerce. See Exhibit 9. However, on or about October

21, 2009, Respondent accepted a shipment of Fuel Oil, a Class 3 Flammable Liquid, for air
transportation on board a passenger aircraft. The MAXIMUM civil penalty for Group IV air

carriers in the Matrix for Improper Acceptance, Failure to Inspect, and Failure to train is

$16,200 for each category. The MAXIMUM civil penalty for Group IV air carriers is $5,500

per category for Failure to notify FAA and Failure to notify pilot-in-command. See Exhibit

11, FAA Order 2150.3B at Appendix C, page C-13. Based on the weighting analysis
performed, an appropriate penalty was assigned for each of the applicable violations groups.

The penalty amount for each violation group was then added together. In evaluating the extent

and gravity of the regulations that are alleged to have been violated, a totality of the

circumstances approach is used to judge the potential consequences that might have resulted

from failure to comply with the requirements of the HMR. Consequently, Complainant is

3 In accordance with FAA Order 2150.3B, A Group IV air carrier is defmed as an air carrier or commercial operator operating under 135 with no more than 5 pilots and no more than 5 aircraft. See Exhibit 12, FAA Order 2150.3B, Appendix Bat page B-3.



### 9

### seeking an appropriate civil penalty in accordance with the FAA Hazardous Materials Penalty

Guidelines of $59,600.



### 8.

In 

### various pleadings the Respondent has argued that Coastal Air Transport was not in

violation of the HMR based upon an erroneous belief that it was authorized to carry the cargo

which is the subject of this action. In 

### the Respondent's Motion to Dismiss dated March 23,

2012, the Respondent characterizes the violations that are the subject of the FAA's complaint as

"minor." The Respondent continues to argue that its carriage of the Flammable Liquid described

above, was analogous to the carriage of "six packs of liquor" which "are regularly carried in

cardboard boxes on passenger aircraft with no labels." He concludes that aircraft regularly carry

small quantities of such materials with no danger to the passengers or crew. See Respondent's

Motion to Dismiss dated March 23,2012 at pages 1 and 2.
Respondent's contentions as demonstrated in the evidence presented are simply incorrect.
Congress has expressly stated its interest in addressing the unregulated transportation of

hazardous materials in commerce and the FAA has instituted policies to effectively deter such

behavior through the use of civil penalties. Respondent's argument is misplaced. It 

### has confused

the regulatory exception provided in the HMR for passengers, crewmembers, and air operators to
carry specified hazardous materials when carried by aircraft passengers or crewmembers
provided the air carrier has met the requirements of 14 C.F.R. §§175.10, 171.15, and 171.16.
Specifically, 14 C.F.R. 175.10, provides a list of excepted hazardous materials which may be

carried by passengers or crewmembers. See Exhibit 13, 14 C.F .R. § 17 5.10. The regulation does
provide that passenger or crewmembers may carry alcoholic beverages containing not more than

24% alcohol by volume; or more than 24% and not more than 70% alcohol by volume when in

10

# ..

unopened retail packagings not exceeding 5 

### liters (1.3 gallons) carried in carry-on or checked
baggage, with a total net quantity per person of 5 

### liters (1.3. gallons) for such beverages

.. However, the package carried by Respondent on October 21, 2009, does not meet the criteria as

articulated in 14 C.F.R 175.10.

By reason of the foregoing, despite the arguments made by Respondent that it is not in

violation of the HMR and therefore, subject to the proposed civil penalty, the Hazardous

Materials statutes and regulations, identified above, clearly establish the government's intent to

address Respondent's unlawful conduct with appropriate sanctions.



### 9.

WHEREFORE, for the reasons articulated above, Complainant respectfully requests that its

Alternative Motion for Hearing on Sanction Only be granted and Respondent assessed a civil
penalty in the amount of$59,600.

Res ectfully submitted this 20th day of July 2012.

Atto ey Office of the Regional Counsel

11

### CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing Agency Brief in Support of its Alternative Motion for Hearing on Sapction Only was mailed by Federal Express and facsimile to:

The Honorable J.E. Sullivan DOT, Administrative Law Judge Office ofHearings, M-20 U.S. Department of Transportation 1200 New Jersey Avenue, S.E. East Building Ground Floor Room E12-320 Washington, D.C. 20590 (FAX) (202) 366-7536

and via Express Mail to:

Michael Foster, President Coastal Air Transport, Inc. P.O. Box 3985 Christiansted, St. Croix, 

### VI 00822

and the original and one copy via Eederal Express to:
Hearing Docket U.S. Department of Transportation Docket Operations, M-30 West Building Ground Floor Room W12-140 1200 New Jersey Avenue, S.E. Washington, D.C. 20590

# ~T!~- Legal Assistant


## JUL 2 0 2012 Dated

12

## ..

-



### December 11, 2009 FEDERAL AVIATION ADMINISTRATION Aviation Security and Hazardous Materials P.O. Box 38092 Airport Station San Juan, PR. 00937-1092

Registered Mail Return-Receipt Requested



### File Number: 2010S0700037

Mr. Michael W. Foster President, Coastal Air Transport, Incorporated P 0 Box 3985 Christiansted, Saint Croix USVI 00822

Dear Sir:

The Federal Aviation Administration (FAA) is conducting an investigation concerning the apparent failure of Coastal Air Transport, Incorporated to comply with the provisions ofTitle 49, Code of Federal Regulations (49 CFR).

On October 21, 2009, at approximately 1535 hours, at the Alexander Hamilton Airport (STX), Saint Croix, U.S. Virgin Islands, an Inspector of the U.S. Customs and Border Protection inspected the Coastal Air Transport aircraft servicing flight number #413. The inspection revealed that you were the pilot in command. The inspection also revealed that you accepted and transported in air commerce an un-marked and un-manifested box which contained two plastic bags marked Hazmatpac, each containing two bottles. Each bottle was labeled Fuel Oil, UN1993 and contained approximately 750 mi. The shipper

was identified as SGS Saint Eustatius.

The hazardous materials were not declared, described, packaged, marked, labeled, and in condition for air transportation as required by the hazardous materials regulation. Additionally; Coastal Air Transport, Incorporated is not a certified hazardous material

earner.

The FAA would like to provide you with an opportunity to furnish any information concerning this matter which may reflect mitigating circumstances.

As a part of our investigation, we are requesting the following related information: 

# I
I!XHIBit_ililllll,iliilrolll'fililiillli1ilo. -·-· 1

### 1- A copy ofthe appropriate material safety data sheet(s) (MSDS) for dangerous goods offered in this shipment. The MSDS must show the proper shipping name, Class number, UN Number, Packing Group, and packing instructions for the item described above.

2- Copies of the air waybill(s), shipper's pick up record and other relevant documents associated with the shipment in question.

3- A copy of the hazardous materials training records for each individual involved in the transportation of this shipment.

4- A copy of your hazardous materials training curriculum.

5- A description of actions implemented to prevent further incidents of this type from occurnng.

6- Any additional documentation or information you feel to be pertinent to this investigation.

Please be advised.that the allegations contained herein do not necessarily include all the deficiencies that may be subsequently discovered during the course of this investigation.

This office should receive your response, if any, within ten ( 1 0) business days from your receipt of this letter. If no response is received at that time, our report will be processed without the benefit of your information. Your reply may be sent email to Juan.Bulted@faa.gov.

Sincerely,**~** 

### '8etfted Juan Bulted Special Agent

### • • Complete Items 1, 2, and 3. Also complete Item 4 If Restricted Delivery Is desired.
• Print your name and address on the reverse

so that'we can return the card to you. • Attach this card to the back of the mallplece,

or on the front If space permits.

1. Article Addressed -to:



### 7008 1830 DODD 5608 4635
PS Form 3811, February 2004 0. Is · different froin Item 1? If YES: enter dellvety address below:

Domestic Return Receipt 1 02595.00-M-1540



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. Domestic Mail Only; No Insurance Coverage Provided)

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Juan Bulted South Florida FSD0-19 San Juan Security Field Unit 525 FD Roosevelt Ave, Suite 901 San Juan, Puerto Rico 00918-1198

File Number: 2010S0700037

January 14, 2010

Dear Sir,

In response to your letter received January 4, 2010, we offer the following as requested:

1. A copy of the Material Safety Data Sheet(MSDS) for low sulfur diesel fuel (7 pages).
2. Copies of the Bill of lading from the shipper. Copies of our Cargo Manifest were held by U.S. Customs in St Croix. These items were correctly listed as oil samples. 3. Copies of the hazardous materials training records for those involved in shipping these samples.
4. We were advised years ago by our Principal Operations Inspector (POl), that a hazardous material program was not recommended and would not be required to transport small quantities of properly packaged flammable materials. These materials include butane lighters, matches, six packs of spirits, mouthwash, aftershave, etc. The material and quantities in this shipment fall into this category. 5. The shipper has offered us the use of their lATA Training Program. We have agreed to have all appropriate personnel complete this course. 6. Samples were shipped in limited Quantity( less than 10l for Diesel Fuel) as per lATA DG Regs 2.8.2.1(b) and packaged in a suitable box and materials for shipment. Shipment was placed in a cargo compartment not accessible to passengers. Included are labels attached to these samples describing their content. These were apparently not noticed during the customs inspection.

Coastal Air has operated for almost 30 years, accident, incident, and violation free. We have agreed to add additional training in the future and request that this investigation be closed with no further action being taken. 

# :iitJk

Michael W. Foster President 

### FAA/South Florida FSD0-19 

### San juah**fla~Uity**

P.O. BOX 3985 • CHRISTIANSTED, U.S. V.I. 00822 • TELEPHONE (340) 773-6862 

## 'I 0 

# p 

# 7

# ~ NFPA 704 (Section 16) 

# HOVEN SA

MATERIAL SAFETY DATA SHEET 

### Low Sulfur Diesel Fuel MSDS No. 1797 

# 11. CHEMICAL PRODUCT and COMPANY INFORMATION (rev. Jan-99) HOVENSA L.L.C. 1 Estate Hope Christiansted, VI 00820-5652
EMERGENCY TELEPHONE NUMBER (24 hrs): CHEMTREC (800) 424-3000 COMPANY CONTACT (business hours): HOVENSA Safety Department (340) 692-3000

SYNONYMS: Diesel Fuel #2; Hess Premium Diesel; Low Sulfur Diesel; Motor Vehicle Diesel Fuel See Section 16 for abbreviations and acronyms.
COMPOSITION and INFORMATION ON INGREDIENTS

INGREDIENT NAME Diesel Fuel CASNUMBER:**~7~~** EXPOSURE LIMITS OSHA PEL-TWA: 5 mgtm. as mineral oil mist ACGIH TLV·TWA: 1997 NOIC- 100 mg/m 3

, skin, A3 Naphthalene osHA PEL: 10 ppm CAS NUMBER: 91-20-3 ACGIH TLV-TWAISTEL: 10/15 ppm, A4 (rev. Jan-99) CONCENTRATION PERCENT BY WEIGHT 100

Typically < 0.01

A complex mixture of hydrocarbons with carbon numbers in the range C9 and higher. Premium Diesel Fuel contains a multifunctional additive. 

## I 3. HAZARDS IDENTIFICATION (rev. Jan-99;**Tox~98)**

EMERGENCY OVERVIEW QAUTIONI OSHAINFPA COMBUSTIBLE LIQUID -SLIGHT TO MODERATE IRRITANT- EFFECTS CENTRAL NERVOUS SYSTEM -HARMFUL OR FATAL IF SWALLOWED Moderate fwe hazard. Avoid breathing vapors or mists. May cause dizziness and drowsiness. May cause moderate eye irritation and skin Irritation (rash). Long-term, repeated exposure may cause skin cancer. If ingested, do NOT induce vomiting, as this may cause chemical pneumonia (Huid in the lungs).

EYES Contact with liquid or vapor may cause mild irritation.
SKIN May cause skin irritation with prolonged or repeated contact. Practically**non~toxic** if absorbed following acute (single) eXposure. liquid may be absorbed through the skin in toxic amounts if large areas of skin
are repeatedly exposed.
lt-JGESTION The major health threat of ingestion occurs from the danger of aspiration (breathing) of liquid drops into the lungs, particularly from vomiting. Aspiration may result in chemical pneumonia (fluid in the lungs),
severe lung damage, respiratory failure and even death. Ingestion may cause gastrointestinal disturbances. including irritation, nausea, vomiting and diarrhea, and central nervous system {brain) effects similar to alcohol intoxication. In severe cases, tremors, convulsions, loss of consciousness, coma; respiratory arrest, and death may occur. INHAI..ATION EXcessive exposure may cause irritations to the nose, throat, .lungs and respiratory 

### tract. Central nervous system (brain) effects may include headache, dizziness, loss of baJance and coordination, unconsciousness, coma, respiratory failure, and death.

Revision Date: 02/28/01 

# EXHIBIT._!f;lfo&i,
., ...... r

-- Page 1 of7


# .ro P g

# HOVENSA

MATERIAL SAFETY DATA SHEET 

### Low Sulfur Diesel Fuel MSDS No.1797

WARNING: the burning of any hydrocarbon as a fuel in an area without adequate ventilation may result in hazardous levels of combustion products, including carbon monoxide, and inadequate oxygen levels, which may cause unconsciousness. suffocation, and death.
CHRONIC EFFECTS and CARCINOGENICITY Similar products produced skin cancer and systemic toxicity in laboratory animals following repeated applications. The significance of these results to human exposures has not been determined

- see Section 11 Toxicological Information.
lARC classifies whole diesel fuel exhaust particulates as probably carcinogenic to humans (Group 2A). NIOSH regards whole diesel fuel exhaust particulates as 

### a potential cause of occupational lung cancer based on animal studies and limited evidence in humans.
MEDICAL CONOITIONS AGGRAVATED BY EXPOSURE Irritation from skin exposure may aggravate existing open wounds, skin disorders, and dermatitis (rash). 

# I 4. FIRST AID MEASURES (rev. Jan-98; Tox-98}



### .5lli In case of contact with eyes, immediately flush with clean, low-pressure water for at least 15 min. Hold eyelids open to ensure adequate flushing. Seek medical attention.
SKIN Remove contaminated clothing. Wash contaminated areas thoroughly with soap and water or waterless hand cleanser. Obtain medical attention if irritation or redness develops.
INGESTION DO NOT INDUCE VOMrtiNG. Do not give liquids. Obtain immediate medical attention. If spontaneous vomiting occurs. lean victim forward to reduce the risk of aspiration. Monitor for breathing difficulties. Small amounts of material which enter the mouth should be rinsed out until the taste is dissipated.
INHALATION Remove person to fresh air. If person is not breathing provide artificial respiration. If necessary, provide additional oxygen once breathing is restored if trained to do so. Seek medical attention immediately. 

# I**~.** FIRE FIGHTING MEASURES (rev. Oct-96)

FLAMMABLE PROPERTIES: FLASH POINT: AUTOIGNITION POINT: OSHAINFPA FLAMMABILITY CLASS: LOWER EXPLOSIVE LIMIT(%): UPPER EXPLOSIVE LIMIT (%):
FIRE AND EXPLOSION 

### HAZARDS > 125 °F (>52 °C) minimum 494 ';: (257 °C) 2 (COMBUSTIBLE) 0;6 7.5 PMCC

Vapors may be ignited rapidly when exposed to heat, spark. open flame or other source of ignition. When mixed with air and exposed to an ignition source, flammable vapors oon bum in the open or explode in confined spaces. Being heavier than air, vapors may travel long distances to an ignitloo source and flash back. Runoff to sewer may cause fire or explosion hazard.
EXTJNGYISHING MEDIA SMALL FIRES: Any extinguisher suitable for Class B fires, dry chemical, C02, water spray, fire ftghting foam, or Halon.
LARGE FIRES: Water spray, fog or fire fighting foam. Water may be ineffective for fighting the fire, but may be used to cool fire-exPQSed containers.
FIRE FIGHTING INSTRUCTIONS

Revision Date: 02128/01 .Page2of7

# HOVEN SA

MATERIAL SAFETY DATA SHEET 

### Low Sulfur Diesel Fuel MSDS No. 1797

Small fires in the incipient (beginning) stage may typically be extinguished using handheld portable fire extinguishers and other fire fighting equipment. Firefighting activities that may result in potential exposure to high heat, smoke or toxic by-products of combustion should require NIOSHIMSHA- approved pressure-demand self-contained breathing apparatus with full face piece and full protective clothing.
Isolate area around container involved in fire. Cool tanks, shells, and containers exposed to fire and excessive heat with 

### water. For massive fires the use of unmanned hose holders or monitor nozzles may be advantageous to further minimize personnel exposure. Major fires may require withdrawal, allowing the tank to bum. Large storage tank fires typically require specially trained personnel and equipment to extinguish the fire, often including the need for property applied fire fighting foam.
See Section 16 for the NFPA 704 Hazard Rating. 

# I 6. ACCIDENTAL RELEASE MEASURES (rev. Jan-98)

ACTIVATE FACILITY'S SPILL CONTINGENCY OR EMERGENCY RESPONSE PLAN.
Evacuate nonessential personnel and remove or secure all ignition sources. Consider wind direction; stay upwind and uphill, if possible. Evaluate the direction of product travel, diking, sewers, etc. to confinn spill
areas. Spills may infiltrate subsurface soil and groundwater; professional assistance may be necessary to determine the extent of subsurface impact. Carefully contain and stop the source of the spill, if safe to do so. Protect bodies of water by diking, absorbents, or absorbent boom, if possible. Do not flush down sewer or drainage systems, unless system is designed and permitted to handle such material. The use of fire**f~ghting** foam may be useful in certain situations to reduoo vapors. The proper use of water spray may effectively**d~e** product vapors or the liquid itself, preventing contact with ignition sources or areas/equipment that require protection.
Take up with sand or other oil absorbing materials. carefully shovel, scoop or sweep up into a waste container for reclamation or disposal -caution, flammable vapors may accumulate in closed containers. Response and clean-up crews must be properly trained and must utilize proper protective equipment (see Section 8). 

## l 7. HANDLING and STORAGE (rev. Jan-98)

HANDLING PRECAUTIONS Handle as a combustible liquid. Keep away from heat, sparks, and open flame! Electrical equipment should be approved for classified area. Bond and ground containers during product transfer to redUce the possibility of static-initiated fire or explosion. Special slow load procedures for "switch loading" must be followed to avoid the static ignition hazard that
can exist when higher flash point**mater~al** (such as fuel oil) is loaded into tanks previously containing low flash point products (such as this product)- see API Publication 2003, "Protection Against Ignitions Arising Out Of Static, Lightning and Stray Currents. STOBAGJ: PRECAUTIONS Keep away from flame, sparks, excessive temperatures and open flame. Use approved vented containers. Keep containers closed and clearly labeled. Empty product containers or vessels may contain explosive vapors. 

### Do not pressurize, cut, heat, weld or expose such containers to sources of ignition.
Store in a well-ventilated area. This storage area should comply with NFPA 30 "Flammable and Combustible Liquid Code". Avoid storage near incompatible materials. The Qteaning of tanks previously containing this product should follow API Recommended Practice (RP) 2013 "Cleaning Mobile Tanks In Flammable and Combustible Liquid Service" and API RP 2015 "Cleaning Petroleum Storage Tanks". WORK/HYGIENIC PRACTICE§

Revision Date: 02128/01 Page3of7

# HOVEN 

# SA

MATERIAL SAFETY DATA SHEET 

### Low Sulfur Diesel Fuel MSDSNo.1797

Emergency eye wash capability should be available in the near proximity to operations presenting a potential splash exposure. Use good personal hygiene practices. Avoid repeated and/or prolonged skin exposure. Wash hands before eating, drinking, smoking, or using toilet facilities. Do not use as a cleaning solvent on the skin. Do not use solvents or harsh abrasive skin cteaners for washing this product from exposed skin areas. Waterless hand cleaners are effective. Promptly remove contaminated clothing and launder before reuse. Use care when laundering to prevent the formation of flammable vapors which could ignite via washer or dryer. Consider the need to discard contaminated leather shoes and gloves. 

### js. EXPOSURE CONTROLS and PERSONAL PROTECTION (rev. Jan·98)

ENGINEERING CONTROLS Use adequate ventilation to keep vapor concentrations of this product below occupational exposure and flammability limits, particularly In confined spaces

.

. EYE/FACE PROTECTION Safety glasses or goggles are recommended where there is a possibility of splashing or spraying.
SKIN PROTECTION Gloves constructed of nitrile, neoprene, or PVC are recommended. Chemical protective clothing such 

### as of E. I. DuPont TyChem®, Saranex® or equivalent recommended based on degtee of exposure. Note: The resistance of specific material may vary from product to product as well as with degree of exposure. Consult manufacturer specifications for further infonnation.
RESPIRATORY PROTECTION A NIOSH/MSHA-approved air-purifying respirator with organic vapor cartridges or canister may be permissible under certain circumstances where airborne concentrations are or may be expected to exceed exposure limits or tor odor orfl'litatton. ProtectiOn provided by ait-putifying respiraton;· i's limited. Refer to OSHA 29 CFR 1910.134, ANSI Z88.2-1992, NIOSH Respirator Decision Logic, ar'ld the manufacturer for additional guidance on respiratory protection selection.
Use a positive pressure, air-supplied respirator if there is a potential for uncontrolled release, exposure levels are not known. in**oxygen~efteient** atmospheres. or any other circumstance where an air-purifying respirator may not provide adequate protection. 

# I 9. PHYSICAL and CHEMICAL PROPERTIES (rev. Jan-94)

APPEARANCE Clear, straw-yellow liquid
ODOR Mild, petroleum distillate odor
BASIC PHYSICAL PROPERTIES BOILING RANGE: 320 to 690 °F (160 to 366 °C) VAPOR PRESSURE: 0.009 psia @ 70 °F (21 °C) VAPOR DENSITY (air = 1 ): > 1.0 SPECIFIC GRAVITY (H 2 0 = 1 ): 0.83 to 0.86@ 60 °F (16 °C) PERCENT VOLA TILES: 100 % EVAPORATION RATE: SOLUBILITY (H20): Slow; varies with conditions Negligible

!10. STABILITY and REACTMTV (rev. Jan-94)

STABILITY: Stable. Hazardous polymerization will not occur. CONDITIONS TO AVOID and INCOMPATIBLE MATERIALS

Revision Date: 02/28/01 Page4 of7

# HOVEN 

# SA

MATERIAL SAFETY DATA SHEET Low Sulfur Diesel Fuel MSDS No.1797

Avoid high temperatures, open flames, sparks, welding, smoking and other ignition sources. Keep away from strong oxidizers; Vlton ® ; Fluorel ®
HAZARDOUS DECOMPOSITION PRODUCTS Carbon monoxide, carbon dioxide and non-combusted hydrocarbons (smoke).

!11. TOXICOLOGICAL PROPERTIES (rev.**Jan~98;** Tox-98)

ACUTE TOXICITY Acute dennal LD50 (rabbits): > 5 ml/kg Acute oral LD50 (rats): 9 mllkg Primary dermal irritation: extremely irritating (rabbits) Draize eye irritation: non-irritating (rabbits} Guinea pig sensitization: negative
CHRONIC EFFECTS AND CARCINOGENICITY Carcinogenic: OSHA: NO IARC: NO NTP: NO ACGIH: 1997 NOIC: A3
Studies have shown that similar products produce skin tumors In laboratory animals following repeated applications without washing or removal. The·significance of this finding to human exposure has not been determined. Other studies with active skin carcinogens have shown that washing the animal's skin with soap and water between applications reduced tumor formation.
MUTAGENICITY (genetic effects) This material has been positive in a mutagenicity study.
112. ECOLOGICAL INFORMATION (rev.**Jan~98)**

Keep out of sewers, drainage areas, and waterways. Report spills and releases, as applicable, under Federal and State regulations.

113. DISPOSAL CON.SIOERATIONS (rev.**Jan~98)**

Consult federal, state and local waste regulations to determine appropriate disposal options. 

## I 14. TRANSPORTATION INFORMATION (rev.**Jan~98)**

PROPER SHIPPING NAME: Diesel Fuel HAZARD CLASS and PACKING GROUP: 3, PG Ill DOT IDENTIFICATION NUMBER: NA 1993 DOT SHIPPING LABEL: None
l15. REGULATORY INFORMATION**~rev.** Feb..01)

U.S. FEOJ?RAL. STATE. and LOCAL RE@ULATOf!YlNFORMATION This product and its constituents listed herein are 

### on the EPA TSCA Inventory. Any spill 

### or uncontrolled release of this product, including any substantial threat of release, may be subject to federal, state and/or local reporting requirements. This product and/or Its constituents may also be subject 

### to other regulations at the state and/or tocallevel. Consult those regulations applicable to your facility/operation.
CLEAN WATER ACT COIL SPILLS) Any spill or release of this product to "navigable waters" (essentially any surface water, including certain wetlands) or adjoining shorelines sufftcient to cause a visible sheen or deposit of a sludge or emulsion must be reported immediately to the National Response Center (1-800-424-8802) 

### or, if not practiCal, the U.S. Coast Guard with follow-up to the. National Response center, as required by U.S. Federal Law. 

### Also contact appropriate state and local regulatory agencies 

### as required.
CERCLA SECTION 103 and SARA SECTION 

### 3Q;4 (RELEASE TO THE EftVIftONMENT) The CERCLA ciefsnition of hazardous substances contains 

### a "petroleum exclusi0ri 11 clause which exempts crude oil, refined, and unrefined petroleum products and any indigenous components of such. However, other federal reporting requirement$ (e.g., SARA**~n** 304 as well as the Clean Water Act if the spill
occurs on navigable waters) may still apply. ·

Revision Date: 02128101 Page5of7

# HOVENSA

MATERIAL SAFETY DATA SHEET 

### Low Sulfur Diesel Fuel MSDS No. 1797

SARA SECTION 311/312 • HAZARD CLASSES ACUTE HEALTH CHRONIC HEALTH FIRE SUDDEN RELEASE OF PRESSURE REACTIVE X X X
SARA SECTION 313 -SUPPLIER NOTIFICATION This product may contain listed chemicals below the de minimis levels which therefore are not subject to the supplier notification requirements of Section 313 of the Emergency Planning and Community Right· ToKnow Act (EPCRA) of 1986 and of 40 CFR 372. If you may be required to report releases of chemicals listed in 40 CFR 372.28, you may contact HOVEN SA if you require additional information regarding this product.
CANADIAN REGULATORY INFORMATION <WHMIS) Class B. Division 3 (Combustible Liquid) and Class D. Division 2, Subdivision 8 (Toxic by other means)
!16. OTHER INFORMATION (rev. Feb-01)

NFPA® HAZARD RATING HEALTH: 0 Negligible FIRE: 2 Moderate REACTIVITY: 0 Negligible

HMIS® HAZARD RATING HEALTH: 1 * Slight FIRE: 2 Moderate REACTIVITY: 0 Negligible *Chronic SUPERSEDES MSDS DATED: 01/25/99
ABBREVIATIONS: AP ::: Approximately < 

## = Less than > 

## = Greater than NIA 

## = Not Applicable N/D 

# = Not Determined ppm = parts per million
ACRONYMS: ACGIH American Conference of Governmental

AIHA ANSI

API Industrial Hygienists American Industrial Hygiene Association American National Standards Institute (212) 642-4900 American Petroleum Institute (202) 682-8000 CERCLA Comprehensive Emergency Response,

DOT

EPA HMIS I ARC Compensation, and Liability Act U.S. Department of Transportation [General info: (800) 467-49221 U.S. Environmental Protection Agency Hazardous Materials Information System International Agency For Research On Cancer MSHA Mine Safety and Health Administration NFPA National Fire Protection Association (617)770-3000 NlOSH National Institute of Occupational Safety

NOIC and Health Notice of Intended Change (proposed 

### change to ACGIH TL 

### V)

Revision Date; 02/28/01 NTP OPA OSHA

PEL RCRA

REL SARA

SCBA SPCC

STEL

TLV TSCA TWA WEEL National Toxicology Program Oil Pollution Act of 1990 U.S. Occupational Safety & Health Administration Permissible Exposure Limit (OSHA) Resource Conservation and Recovery Act Recommended Exposure Limit (NIOSH) SUJ)erfund Amendments and Reauthorization Act of 1986 Title Ill Self--Contained Breathing Apparatus Spill Prevention, Control, and Countermeasures Short- Term Exposure Limit (generally 15 minutes) Threshold Limit Value (ACGIH) ToxiC Substances Control Act Time Weighted Average (8 hr.) Workplace Environmental Exposure Level (AIHA} WHMIS

. Canadian Workplace Hazardous 

### Materials Information System

Page6 of7

# HOVENSA

MSDS No. 1797 

### Low Sulfur Diesel Fuel MATERIAL SAFETY DATA SHEET

DISCLAIMER OF EXPRESSED AN,D IMPUEQ WARRANTIES Information presented herein has been oomplled from sources considered to be dependable, and is accurate and reliable to the beSt of our knowledge and belief. but Is not guaranteed to be so. Since conditions of use are beyond our contr91. we make no warranties. expressed or implied, except those that may be contained In our written contract of sale or acknowledgment.

Vendor assumes no responsibility for injury to vendee or third persons proximately caused by the material if reasonable safety procedures are not adhered to as stipulated In the data sheet. AddltionaHy, vendor assumes no responsibility for Injury to vendee
or third persons proximately caused by abnormal use of the material, even If reasonable safety procedures are follOWed. Furthermore, vendee assumes the risk in their use of the material.

Revision Date: 02128/01 Page 7of7i'



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I I j( i ' !•**~-~-=~·!** NUMBER & SIZE OF PROPER SH!PPiNG 1 '-iAZA.RD CLASS ANO U.N. 10. i PACKING 

### i! SAMPLES NAME 

# I SUBSlD'Y' NUMBER 

### i GROUP 

# J

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IF NON-HAZARDOUS AND HAZARDOUS MATERIALS ARE LISTED ON THE SAME BILL OF LADING. THE HAZARDOUS
MATERIALS MUST BE LISTED FIRST OR WRITTEN IN A CLEARLY CONTRASTING COLOR

* IF APPliCABLE

EMERGENCY {SPILL, LEAK, FIRE, EXPOSURE OR ACCIDENT] 24 HOUR TELEPHONE

- CALL CHEMTREC
TOLL FREE USA 1-800-424-9300

.,.__ This is to certify that the above named materials are properly classified, described, packaged, marked, and labeled andare in proper condition for transportation according to the applicable

CARRIER: regulations of the Department of Transportation

# ~Q~ioJ)**~Cuu_ (~h~s~J**  --= -:::7 DATE: 

### (Q-- 

## "C) 

# -r:J!

------
_ _,_ ___

... 

### . --·,-·. CONSULT SGS SAFEfY PROGRAM SAMPLE LABELING : Section 6.4.2 & 9.3.6 SAMPLE PACKiNG Section 6 4.4 & 9.3 8 SAMPLE TRANSPORT SAMPLE SHlPP!NG : Section 6.4.4 & 9.3.8

. Sectlo•'l 6 4.4 & 9,3 8 

# EXH1Bit_..35

...... --- ... ,._ 

## - .,.._, ...., ..... , 

# I 

# I l

I 

# ll !. 

# JJii......Sym·bois(1)....Hazardousmaterialsdescriptionsandpropershippingnames(2)1.2·Dichloropropane..................1,3·Dichloropropanol-2..............Dichloropropeneandpropylenedichloridemixture,see1,2·Dichloropropane.Dichloropropenes...........:..........••••••ooooooooooo••••••••••••••••••••oouo••••••••••Dichlorosilane............................1,2-Dichloro-1,1,2,2-tetrafluoroethaneorRefrigerantgasA114.Dichlorovinylch/oroarsine...........Dicycloheptadif)ne,see8icyclo[2,2,1]hepta-2,5-dlene,stabilized.Dicyclohexylamine.....................Dicyclohexytammoniumnitrite...Dlcyctopentadiene.....................Didymiumnitrate.......................Dieselfuel..................................Dieselfuel..................................Diethanol·nitrosaminedinltrate(dry}.Diethoxymethane.......................3,3-Dlethoxypropene,................Diethylcarbonate......................Diethylce/Joso/ve,seeEthyleneglycoldiethylether.DiethyletherorEthylether.......Dlethylketone............................Dlethylperoxydlcarbonate,withmorethan27percentinsolution.Diethylsulfate............................Diethylsulfide............................§172.101HAZARDOUSMATEAfALSTABLE-Continued(8)Hazardldenti·classorficationPGLabelSpecialprovisions(§173.***DivisionNumbersCodes(§172.102)Excep-Non·tionsbulk(3)(4)(5)(6)(7)(SA)(88)3UN1279II3·······182,N36,T4,TP1150........202...6.1UN2750II6.1....182,T7,TP2153........202...················.......................·······3UN2047II3.......182,T4,TP1150........202...················Ill3.......81,183,T2,TP1150........203...2.3UN2189........2.3,2,89,814None.....304...2.1,8.2.2UN1958........2.2....T50306........304...Forbidden···········............·······················..............................8UN2565Ill8..,....183,T4,TP1154........203...4.1UN2687Ill4.1....IP3,T1,TP33151........213...3UN2048Ill3.......81,183,T2,TP1150........203...5.1UN1465Ill5.1....A1,168,IP3,T1,TP33152........213...3NA1993IllNone144,81,183,T4,TP1,150........203...TP293UN1202Ill3.......144,81,183,T2,TP1150........203...Forbidden..............................3UN2373II3.......182,T4,TP1150........202...3UN2374II3.......182,T4,TP1150........202...3UN2366Ill3.......81,183,T2,TP1150........203.................................................3UN1155I3.......T11,TP2150........201...3UN1156II3.......182,T4,TP1150........202....Forbidden..............................6.1UN1594II6.1....182,T7,TP2153........202...3UN2375II3.......182,T7,TP1,TP13None.....202...(9)Quantitylimitations(see§§173.27and175.75)BulkPassengeraircraft/raileraonly(8C)(9A)(98)242....5L60L243....5L60L............................................242....5LSOL242....60L220L314,ForbiddenForbidden315.314,75kg150kg315.........····································............................................241....5L60L240....25kg100kg242....60L220L240....25kg100kg242....SOL220L242....60L220L............................................242....5L60L242....5L60L242....60L220L............................................243....1 L30L242....5LSOL............................................243....5L60L243....5L60L(10)VesselstowageLoca·Othertion(10A)(108)B....................A12,40....................B····················A····················D17,40A····················........................................A....................A48A....................A....................A....................A........................................E....................B....................A........................................E408........................................c....................E....................COt-......-0-Q"'--<?-I--g::::.-§172.101HAZARDOUSMATERIALSTABLE-ContinuedCO»-I.....(8)(9)(10)Vessel.....Hazardousmaterialsdescrip-IHazaroIldenti-IIIIPackaginyQuantitylimitationsstowage0Sym-jclassorficationPGLabelSpecialprovisions(§173.···(see§§173.27and-------boislionsandpropershippingDivisionNumbers·Codes(§172.102)175.75)namesIExcep-Non-Loca-IOtherlionsbulkBulkPassengerCarfcair-Ilionaircraft/raileraonly(1)I(2)(3) (4)(5)(6)(7)(SA)(88)(8C)(9A)(98)I(10A)I(108)50kg'AIFuelcellcartridgesorFuelcell4.3UN3476........4.3............................................230........230...230....5kgcartridgescontainedinequipmantorFuelcellcartridgespackedwithequipment,COl)·tainingwater-reactivesubstances....D1Fueloil(No.1,2,4,5,orB)......,31NA1993IIllI3.......I144,81,183,T4,TP1,I150........I203...I242....I60LI220LIATP29Fuelsystemcomponents(tn·................eludingfuelcontrolunits(FCU),carburetors,fuellines,Ifuelpumps)seeDangerousGoodsinApparatusorDan-0:1gerousGoodsinMachinery.Fulminateofmercury(dr}t)........,ForbiddenFulminateofmercury,wet,see................Mercuryfulminate,etc.Fulminatinggold.....FulminatingmercuiyFulminatingplatinum.................t-ort:>ldden......................................oooooHoooooo•••••······································Fulminatingsilver......................Forbidden..........................................................................····················"()Fulminicacid.............................Forbidden.......................·······........o0000000000oo>00H······································0Fumarylchloride........................8UN1780II8.......82,182,T7,TP2154........202...242....1 L30Lc8,40'""Fumigatedfading,see················......................................................................;:u.......................0§§172.302(g),173.9and176.76(h).?"Fumigatedtransportvehicleorfreightcontainersee§173.9.-Furaldehydes.............................6.1UN1199II6.1,3182,T7,TP2153........202...243....5L60LA-....................C?Furan.........................................3UN2389I3.......T12,TP2,TP13None.....201...243....1 L30LE40Furfurylalcohol..........................6.1UN2874Ill6.1....183,T4,TP1153........203...241....60L220LA52,74-Furfurylamine.............................3UN2526Ill3,8...81,183,T4,TP1150........203...242....5L60LA40-Fuse,detonating,metalclad,0000h0000000000seeCoro,detonating,metalmclad.a.Fuse,detonating,.mildeffect,.. ... . ........................................................................................................3:metalclad,seeCoro,deto-0nating,mildeffect,metalclad.::::J-Henry E. Rohlsen Airport, RR #2-9922 Kingshi/1, St. Croix, VI 00850-9702



### Date: 

### November 02, 2009

MEMORANDUM FOR: Hazmat Materials

FROM: CBPO Renael Steele

TO: FAA Hazmat Coordinator Juan Boulted



### CC: SCBPO Preston Tutein

SUBJECT: Detention of Fuel Oil

On October 21, 2009 at 1535, while inspecting cargo from Coastal Air flight #413, an unmanifested box was found with no identifying markings. After checking with the four passengers that arrived on the same flight, it was determined that it was cargo. Upon opening the box, two plastic bags were found labeled "Hazmatpac". Upon opening the bags, two bottles approximately 750ml each were found labeled fuel oil UN#1993 that contained a liquid substance. The contents appeared to be ha;z:ardous materials. There was no MSDS, no packing slips or any hazardous markings or warnings labeled on box. Unaware of the actual contents, CBPO Steele and CBP AS Arroyo questioned Michael Foster, pilot of Coastal Air about the box and its contents. Mr. Foster stated that 

### it was fuel oil and he brought it in for SGS, a company in St. Croix, USVI. Mr. Foster was asked why the box was not manifested and stated that he forgot to put it on the manifest. Mr. Foster then amended the manifest and added the box with the description as samples. SCBPO Tutein was contacted and advised of the contents found. As per SCBPO Tutein, the box was detained for further advisement on contents and shipping requirements. The items were detained by CBPO Steele on form 6051 D #617246. The following day, October 22, 2009, SGS faxed CBP a certificate of analysis and a bill of lading stating that the samples are diesel fuel UN#1202.



# EXHIBrr_1

........ _, •. S. DEPARTMENT OF TRANSPORTATlOl\t FEDERAL AVIATION ADMINISTRATION CIVIL AVIATION SECURITY



### Photograph provided by Tutein PRESTON, CBP Supervisory Oft1cer, HENRY ROHLSEN AIRPORT (STX), Saint Croix, USVI. Photograph shows the fiberboard box which contained the shipment of Gas Oil, Class 3, UN1202, PG-Ill. Observe the lack ofhazmat markings and communication labels.



# EXHIBit_

.

# ......-~---- (Public availability to be determine under 5 U.S.C. 532)v.S. DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION CIVIL AVIATION SECURITY



### Photograph provided by 

### Tutein PRESTON, CBP Supervisory Officer, HENRY ROHLSEN AIRPORT (STX), Saint Croix, USVL Photograph shows the fiberboard box which contained the shipment of Gas Oil, Class 3, UN 1202, PG- III. Observe tbe lack of hazmat markings and
communication labels.



### under 5 

### U.S.C. 532),_,.S. DEPARTMENT OF .TRANSPORT A TI01'-l FEDERAL A VIATlON ADMINISTRATION ClVIL A VIA TlON SECURffY



### Photograph provided by Tutein PRESTON, CBP Supervisory Officer, HENRY ROHLSEN AIRPORT (STX), Saint Croix, USVL Photograph shows a box and two plastic bags which contained

two bottles containing Gas Oil, Class 3, UN1202,

## PG~III.

under 5 U.S.C. 532)u.S. DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION CIVIL AVIATION SECURITY



### Photograph provided by Tutein PRESTON, CBP Supervisory Officer, HENRY E. ROHLSEN AIRPORT (STX), Saint Croix, USVI. Photograph shows two orange labels attached to two bottles which contained Oil, Class 3, UNl PG-IIL

(Public availability to be determine under 5 U.S.C. 532)u.S. DEPARTMENT OF TRANSPORTATION AVIATION ADMINISTRATION CIVIL AVIATION SECURITY



### Photograph provided by Tutein PRESTON, CBP Supervisory Officer, HENRY E. ROHLSEN AIRPORT (STX), Saint Croix, USVI. Close-up photograph showing two orange labels attached to two bottles which contained Gas Oil, 3, UN1 PG-Ill.

(Public availability to be determine under 5 U.S.C.u.S. DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION CIVIL t\VIAT!ON SECURITY



### Photograph provided by Tutein PRESTON, CBP Supervisory Officer, HENRY E. ROHLSEN AIRPORT (STX), Saint Croix, USVI. Photograph shows the fiberboard box which contained the shipment of Oil, Class 3, UN1202,

# PO~ HI. Observe the lack hazmat markings and
communication labels.



### under 

### 5 USC. 532)u.S. DEPARTMENT OF TRANSPORTATION**"''"'·"~"'".A** VIATJON ADMlN!STR.t\TION CIVIL AVIATION SECURITY



### Photograph provided by Tutein PRESTON, CBP Supervisory Officer, HENRY ROHLSEN AIRPORT (STX), Saint Croix, USVL Photograph shows a plastic bag which contained One bottle containing Oil, Class UN1202, PG-IIL

to be determine 

### under 5 U.S.C. 532)u.S. DEPARTMENT OF TRANSPORT A TlON FEDERAL AVIATION ADMINISTRATION CIVIL A VIATlON SECU!UTY



### Photograph provided by Tutein PRESTON, CBP Supervisory Officer, HENRY E. RUHLS.EN AIRPORT (STX), Saint Croix, USVL Photograph shows the fiberboard box which contained the shipment of Gas OiL 3, UN1202, PG-IIL Observe the lack ofhazmat markings and communication labels.

(Public availability to be determine under 5 U.S.C.u.S. DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION C:tV!L AV!ATlON SECURiTY



### Photograph provided by Tutein PRESTON, CBP Supervisory Officer, llENRY E. ROHLSEN AIRPORT (STX), Saint Croix, USVI. Photograph shows the fiberboard box which contained the shipment of Gas Oil, Class 3, UN 1202, PG-IIL Observe the lack of hazmat markings and communication labels.

# /·

FAA NATIONAL OPERATIONS AND TRAINING

MANUAL FOR THE NON-ACCEPTANCE AND

NON-TRANSPORT OF DANGEROUS GOODS IN

AIR TRANSPORTATION

Coastal Air Transport 

### (Air Carrier Name)

AT 761-109 

### (Certificate Number)

227 Rosegate, Box 3985 

### (Physical Address)
Christiansted, St Croix, Virgin Islands 00822 

### (City) (State) (Zip Code) (340)773-6862 

### (Telephone) 

# /J
,**Ar-~** 

# -**\..~L~.** (Signature Block) Corporate Officer (340)773-6862 

### (Fax)

# ~G1;Jg (Signature Block) Responsible Hazardous Materials Officer



### Statement of Intent: Air Carrier WILL NOT ACCEPT Dangerous Goods (DG) for Air Transport
Will Transport Commercial DG? 

# 0 NO

Will Transport Own DG Company Material (COMA T)? 

# 0

# ~~IE~ Recommend Acceptance/ Approval AAS Dangerous Goods Coordinator

# YV~k 

# .:<o 1 

# ;crc;t;

FAA APPROVAL

# ~~~ SIGNATURE:: 

# = = l ,:

. ,, I 

# y, 

# ToPI:L

· EXHIBIT.-'i;:.,..._

### 10/01/07

OFFENSE CATEGORIES

I. Declared Shi(!ment I. Shipping Papers 2. Labels 3. Markings 4. Packaging 5. Training 6. Emerg. Response 7. Release into Environ. 8. Other II. Undeclared Shil!ment Within Hazmat Quantill: Limitations I. Shipping Papers 2. Labels 3. Markings 4. Packaging 5. Training 6. Emerg. Response 7. Release into Environ. 8. Other III. Undeclared Shil!ment Hazmat Forbidden on,

or exceeds gU: limits for, Passen&er Aircraft l. Shipping Papers 2. Labels 3. Markings 4. Packaging 5. Training 6. Emerg. Response 7. Release into Environ. 8. Other IV. Undeclared Shipment Forbidds:n on, or exceeds gD: limits for, All Aircraft l. Shipping Papers 2. Labels 3. Markings 4. Packaging 5. Training 6. Emerg. Response 7. Release into Environ. 8. Other V. Intentional or 

### MATRIX & 

### DEFINITIONS (Figure C-1)

C. Business Entity that uses or handles A. Individual* B. Business Entity hazmat in the

course of business

250-550 250-1,100 500-2,200 250-550 250-1,100 500-2,200 250-550 250-1,100 500-2.200 250-550 250-1,100 500-2,200

---------- 450-1,100 500-2,200 250-550 250-1,100 500-2,200 250-550 250-1,100 500-2,200 250-550 250-1,100 500-2,200

250-1,100 I ,500-8,200

. 2,500-11 ,000 250-1,100 I ,500-8,200 2,500-11,000 250-1,100 I ,500-8,200 2,500-11 ,000 250-1,100 I ,500-8,200 2,500-11,000



### ------------- I**,500~8;200** 2,500-11,000 250-1,100 I ,500-8,200 2,500-11,000 250-1,100 1,500-8,200 2,500-11 ,000 250-1,100 I ,500-8,200 2,500-11,000

500-5,500 5,000-16,200 7,500-22,000 500-5,500 5,000-16,200 7,500-22,000 500-5,500 5,000-16,200 7,500-22,000 500-5,500 5;000-16,200 7,500-22,000



### ---·------ 5,000-16,200 7,500-22,000 500-5,500 5,000-16,200 7,500-22,000 500-5,500 5,000-16,200 7,500-22,000 500-5,500 5,000-16,200 7,500-22,000

500-32,500 7,500-32,500 I 0,000-32,500 500-32,500 7,500-32,500 l 0,000-32,500 500-32,500 7,500-32,500 10,000-32,500 500-32,500 7,500-32,500 10,000-32,500



### ---------- 7,500-32,500 10,000-32,500 500-32,500 7,500-32,500 10,000-32,500 500-32,500 7,500-32,500 l 0,000-32,500 500-32,500 7,500-32,500 l 0,000-32,500

CONSULT CONSULT CONSULT


### C-12 2150.38

D. Business Entity that regularly offers. accepts, or transports hazmat

1,000-5,500 1,000-5,500 1,000-5.500 1,000-5,500 1,000-5,500 I ,000-5,500 I ,000-5,500 I ,000-5,500

5,000-13,000 5,000-13,000 5,000-13,000 5,000-13,000 5,000-13,000 5,000-13,000 5,000-13,000 5,000-13,000

I 0,000-32,500 I 0,000-32,500 10,000-32,500 l 0,000-32,500 l 0,000-32,500 l 0,000-32,500 l 0;000-32,500 10,000-32,500

15,000-32,500 15,000-32,500 15,000-32,500 15,000-32,500 15,000-32,500 15,000-32,500 15,000-32,500 15,000-32,500

CONSULT

# EXHIB\t___...~o,:l 

# Q....,__ l

.

### 10/01/07 2150.38

Delibera!e Violations or LEGAL- Up to LEGAL- Up to LEGAL- Up to LEGAL- Up to otbe'r sia:nificant 50,000 per offense 50,000 per offense 50,000 per offense 50,000 per offense aa:a:ravation category may be category may be category may be category may be assessed assessed assessed assessed VI. Violation results in CONSULT CONSULT CONSULT CONSULT deaths serious illness 1 LEGAL- Up to LEGAL- Up to LEGAL- Up to LEGAL- Up to

severe injurr 1 or 100,000 per I 00,000 per I 00,000 per offense 100.000 may be substantial destruction offense category offense category category may be assessed oforooertv may be assessed may be assessed assessed



### h. *Sanctions applicable to air carrier and commercial operator passengers and crewmembets. The range for the total civil penalty to be assessed, absent mitigating or aggravating factors, is $250 (the statutory minimum) to $1,000.

E. Group I & 

### II F. Group Ill & 

### IV 

### AIR CARRIER AND OTHER AIRCRAFT Air Carriers and Air Carriers and 

### OPERA TOR VIOLATIONS Other Aircraft Other Aircraft Operators Operators Failure to comply with Parts 171, 172, or 173 Use main Matrix. Use main Matrix. requirements of the HMR as an offeror of hazmat. Improper acceptance of hazmat for air transportation. (i.e., quantity, labeling, marking, packaging, and 5,000-32,500 2,500-16,200 shipping papers)

See 49 C.F.R. §§ 

### I75.30(a)(I)- (4) Failure to inspect hazmat shipment properly. I 0,000-32,500 5,000-16,200

See 49 C.F.R. §§ 

### I75.30(b), (c), (d), (e) Improper storage/securing of hazmat aboard aircraft. I 0,000-32,500 5,000-I6,200 Failure to provide hazmat training, maintain records of I 0,000-32,500 5,000-16,200 training, or meet minimum requirements for hazmat training ( 49 C.F.R.). Using untrained/improperly trained hazmat personnel, I 0,000-32,500 5,000-16,200 failure to retain hazmat training records (49 C.F.R.) Failure to notify FAA properly of incident/discrepancies 5,000-16,200 I ,000-5,500 in hazmat sh!Qment. Failure to provide notice to the pilot-in-command. 5,000-I6,200 I,000-5,500 Other Part I75 violations. 5,000-16,200 I,000-5,500 Intentional, deliberate, or other significantly aggravated CONSULT CONSULT LEGAL violation. LEGAL- Up to

- Up to 50,000 per 50,000 per offense category offense category may be assessed may be assessed Violation results in death, serious illness, severe injury, or CONSULT CONSULT LEGAL substantial destruction of property. LEGAL- Up to -Up to I 00,000 per 100,000 per offense category offense category may be assessed ffi'!Y be assessed



### C-13 

# EXHIBIT.___..\._\

___.

### •

10/01/07 2150.38

(I) VIOLATION COMMITTED BY U.S. AIR CARRIERS OR U.S. COMMERCIAL OPERATOR.

CLASSIFICATION OF AIR CARRIER AND OPERA TOR

GROUP I- Each air carrier operating under part 121 or part 135, with an annual operating

revenue of $100,000,000 or more. Operating revenue is determined by reference to DOT's "Air Carrier Industry Scheduled Service Traffic Statistics Quarterly." 

### See http://ostpxweb.dot.gov/aviationlindex.html, and click on "Airline Financial Review."

GROUP II- Each air carrier or commercial operator operating under part 121 with an annual operating revenue of less than $100,000,000, or under part 135 with an annual operating

revenue of less than $100,000,000, if the 135 operator has 50 or more pilots and 25 or more aircraft on its operations specifications. Operating revenue is determined by reference to DOT's "Air Carrier Industry Scheduled Service Traffic Statistics Quarterly."

GROUP lil- Each air carrier or commercial operator operating under part 135 with 6 to 49 pilots or 6 to 24 aircraft.

GROUP IV- Each air carrier or commercial operator operating under part 135 with no more than 5 pilots and no more than 5 aircraft.

GROUP I- 

### large business concern

Maximum Moderate Minimum $18,750-$25,000 $10,000-$18,749 $2,000-$9,999

GROUP I- small business concern (for violations covered under 49 U.S.C. 

### § 46301(a)(5)(A)):

Maximum Moderate Minimum $8,250-$11,000 $4,400-$8,249 $1' 100-$4,399

GROUP I- small business concern (for violations covered under 49 U.S.C. 

### § 46301(a)(l)(A)

or (B) but not under 49 U.S.C. 

### § 4630l(a)(5)(A)):

Maximum Moderate Minimum $850-$1' l 00 $650-$849 $500$649

GROUP 

### 11-large business concern:



### 8-3 

## EXHIBit____,;,l_l_

## •



# ., Pipeline and Hozordous Materials Safety Admin., DOT §175.10

flood control, or avalanche control purposes, when the following requirements

are met:

(i) Operations may not be conducted
over densely populated areas, in a congested airway, or near any airport where carrier passenger operations are conducted.

(ii) Each operator must prepare and keep current a manual containing operational guidelines and handling procedures, for the use and guidance of flight, maintenance, and ground personnel concerned in the dispensing or expending of hazardous materials. The manual must be approved by the FAA Principal Operations Inspector assigned to the operator.

(iii) No person other than a required flight crewmember, FAA inspector, or person necessary for handling or dispensing the hazardous material may be carried on the aircraft.

(iv) The operator of the aircraft must have advance permission from the
owner of any airport to be used for the dispensing or expending operation.

(v) When Division 1.1, 1.2, and 1.3 materials (except detonators and detonator assemblies) and detonators or detonator assemblies are carried for avalanche control flights, the explosives must be handled by, and at all times be under the control of, a qualified blaster. When required by a State
or local authority, the blaster must be licensed and the State or local authority must be identified in writing to the FAA Principal Operations Inspector assigned to the operator.
[76 FR 3381, Jan. 19, 2011]

§ 175.10 Exceptions for passengers, crewmembers, and air operators. (a) This subchapter does not apply to the following hazardous materials when carried by aircraft passengers or crewmembers provided the requirements of §§171.15 and 171.16 (see paragraph (c) of this section) and the requirements of this section are met:

(1) (i) Non-radioactive medicinal and toilet articles for personal use (including aerosols) carried in carry-on and checked baggage. Release devices on aerosols must be protected by a cap or other suitable means to prevent inadvertent release; (ii) Other aerosols in Div. 2.2 (nonflammable gas) with no subsidiary risk carried in checked baggage only. Release devices on aerosols must be protected by a cap or other suitable means to prevent inadvertent release; and

(iii) The aggregate quantity of these hazardous materials carried by each person may not exceed 2 kg (70 ounces) by mass or 2 L (68 fluid ounces) by volume and the capacity of each container may not exceed 0.5 kg (18 ounces) by
mass or 500 ml (17 fluid ounces) by volume. (2) One packet of safety matches or a lighter intended for use by an individual when carried on one's person or in carry-on baggage only. Lighter fuel, lighter refills, and lighters containing unabsorbed liquid fuel (other than liquefied gas) are not permitted on one's person or in carry-on or checked baggage. (3) Implanted medical devices in humans or animals that contain hazardous materials, such as a heart pacemaker containing Class 7 (radioactive) material or lithium batteries; and radiopharmaceuticals that have been injected or ingested.

(4) Alcoholic beverages containing: (i) Not more than 24% alcohol by volume; or (ii) More than 24% and not more than 70% alcohol by volume when in unopened retail packagings not exceeding 5 liters (1.3 gallons) carried in carry-on .or checked baggage, with a total net quantity per person of 5 liters (1.3) gallons for such beverages. (5) Perfumes and colognes purchased through duty-free sales and carried on one's person or in carry-on baggage.

(6) Hair curlers (curling irons) containing a hydrocarbon gas such as butane, no more than one per person, in carry-on or checked baggage. The safety cover must be securely fitted over the heating element. Gas refills for such curlers are not permitted in carry-on or checked baggage.

(7) A small medical or clinical mercury thermometer for personal use, when carried in a protective case in carry-on or checked baggage. (8) Small arms ammunition for personal use carried by a crewmember or passenger in checked. baggage only, if


### 757 

# EXHIB1T._I.;:....-.3:o..-·

-

### § 175.10 securely packed in boxes or other packagings specifically designed to carry small amounts of ammunition. Ammunition clips and magazines must also be securely boxed. This paragraph does not apply to persons traveling under the provisions of 49 CFR 1544.219.

(9) One self-defense spray (see § 171.8 of this subchapter), not exceeding 118 mL (4 fluid ounces) by volume, that incorporates a positive means to prevent accidental discharge may be carried in checked baggage only. (10) Dry ice (carbon dioxide, solid), with the approval of the operator: (i) Quantities may not exceed 2.5 kg (5.5 pounds) per person when used to pack perishables not subject to the HMR. The package must permit therelease of carbon dioxide gas; and (ii) When carried in checked baggage, each package is marked "DRY ICE" or "CARBON DIOXIDE, SOLID," and marked with the net weight of dry ice
or an indication the net weight is 2.5 kg (5.5 pounds) or less.

(11) A self-inflating life jacket fitted with no more than two small gas cartridges (containing no hazardous material other than a Div. 2.2 gas) for inflation purposes plus no more than two spare cartridges. The lifejacket and spare cartridges may be carried in carry-on or checked baggage, with the approval of the aircraft operator.

(12) Small compressed gas cylinders of Division 2.2 (containing no hazardous material other than a Division 2.2 gas) worn by the passenger for the operation of mechanical limbs and, in carry-on and checked baggage, spare cylinders of a similar size for the same purpose in sufficient quantities to ensure an adequate supply for the duration of the journey.

(13) A mercury barometer or thermometer carried as carry-on baggage, by a representative of a government weather bureau or similar official agency, provided that individual advises the operator of the presence of the barometer or thermometer in his baggage. The barometer or thermometer must be packaged in a strong packaging having a sealed inner liner
or bag of strong, leak proof and puncture-resistant material impervious to mercury, which will prevent the escape 49 CFR Ch. I (1 0-1-11 Edition)

of mercury from the package in any position.

(14) Electrically powered heat-producing articles (e.g., battery-operated equipment such as diving lamps and soldering equipment) as carry-on baggage only and with the approval. of the operator of the aircraft. The heat-producing component, or the energy source, must be removed to prevent unintentional functioning during transport.

(15) A wheelchair or other batterypowered mobility aid equipped with a nonspillable battery, when carried as checked baggage, provided-

(i) The battery meets the requirements of§ 173.159a(d) of this subchapter for non-spillable batteries;

(ii) Visual inspection including removal of the battery, where necessary, reveals no obvious defects (removal of the battery from the housing should be performed by qualified airline personnel only);

(iii) The battery is .disconnected and the battery terminals are protected to prevent short circuits, unless the wheelchair or mobility aid design provides an effective means of preventing unintentional activation, and (iv) The battery is- (A) Securely attached to the wheelchair or mobility aid; (B) Is removed and placed in a strong, rigid packaging marked "NONSPILLABLE BATTERY" (unless fully enclosed in a rigid housing that is properly marked); or (C) Is handled in accordance with paragraph (a)(16)(iv) of this section. (16) A wheelchair or other batterypowered mobility aid equipped with a spillable battery, when carried as checked baggage, provided-

(i) Visual inspection including removal of the battery, where necessary, reveals no obvious defects (however, removal of the battery from the housing should be performed by qualified airline personnel only); (ii) The battery is disconnected and terminals are insulated to prevent short circuits;

(iii) The pilot-in-command is advised, either orally or in writing, prior to departure, as to the location of the battery aboard the aircraft; and


### 758**~** 

### Pipeline and Hazardous Materials Safety Admin., DOT 

### § 175.10

(iv) The wheelchair or mobility aid is loaded, stowed, secured and unloaded in an upright position, or the battery is removed, and carried in a strong, rigid packaging under the following conditions:

(A) The packaging must be leak-tight and impervious to battery fluid. An inner liner may be used to satisfy this requirement if there is absorbent material placed inside of the liner and the liner has a leakproof closure; (B) The battery must be protected against short circuits, secured upright in the packaging, and be packaged with enough compatible absorbent material to completely absorb liquid contents in the event of rupture of the battery; and

(C) The packaging must be labeled with a CORROSIVE label, marked to indicate proper orientation, and marked with the words "Battery, wet, with wheelchair."

(17) A lithium ion battery-powered wheelchair or other mobility aid as follows: (i) A wheelchair or other mobility aid equipped with a lithium ion battery, when carried as checked baggage, provided- (A) The lithium ion battery must be of a type that successfully passed each test in the UN Manual of Tests arid Criteria as specified in §173.185 of this subchapter, unless approved by the Associate Administrator; (B) Visual inspection of the wheelchair or mobility aid reveals no obvious defects; (C) Battery terminals must be protected from short circuits (e.g., by being enclosed within a battery container that is securely attached to the mobility aid); (D) The pilot-in-command is advised, either orally or in writing, prior to departure, as to the location of the wheelchair or mobility aid aboard the aircraft; and (ii) A wheelchair or other mobility aid when carried as checked or carryon baggage, provided- (A) The wheelchair or other mobility aid is designed and constructed in a manner to allow for stowage in either a cargo compartment or in the passenger cabin; (B) The lithium ion battery and any spare batteries are carried in the same manner as spare batteries in paragraph (a)(18) of this section. (C) The lithium ion battery and any spare batteries are carried in the same manner as spare batteries in paragraph (a)(18) of this section.

(18) Except as provided in § 173.21 of this subchapter, portable electronic devices (for example, watches, calculating machines, cameras, cellular phones, lap-top and notebook computers, camcorders, etc.) containing cells or batteries (including lithium cells or batteries) and spare batteries and cells for these devices, when carried by passengers or crew members for personal use. Each spare battery must be individually protected so as to prevent short circuits (by placement in original retail packaging or by otherwise insulating terminals, e.g., by taping over exposed terminals or placing each battery in a separate plastic bag
or protective pouch) and carried in carry-on baggage only. In addition, each installed or spare battery must not exceed the following: (i) For a lithium metal battery, a lithium content of not more than 2 grams per battery; or (ii) For a lithium-ion battery, an aggregate equivalent lithium content of not more than 8 grams per battery, except that up to two batteries with an aggregate equivalent lithium content of more than 8 grams. but not more than 25 grams may be carried. (19) Portable electronic devices (e.g., cellular phones, laptop computers, and camcorders) powered by fuel cell systems, and not more than two spare fuel cell cartridges per passenger or crew member, when transported in carry-on baggage for personal use under the following conditions: (E) The wheelchair or mobility aid is loaded, stowed, secured and unloaded in an upright position and in a manner that prevents unintentional activation and protects it from damage.

(F) A lithium metal battery is forbidden aboard a passenger-carrying aircraft. (i) Fuel cell cartridges may contain only Division 2.1 liquefied flammable gas, or hydrogen in a metal hydride, Class 3 flammable liquids (including



### 759

### § 175.20
methanol), Division 4.3 water reactive substances, or Class 8 corrosive materials; (ii) The maximum water capacity of
a fuel cell cartridge for hydrogen in a metal hydride may not exceed 120 mL (4 fluid ounces). The maximum quantity of fuel in all other fuel cell cartridge types may not exceed:

(A) 200 mL (6.76 ounces) for liquids; (B) 120 mL (4 fluid ounces) for liquefied gases in non-metallic fuel cell cartridges, or 200 mL (6. 76 ounces) for liquefied gases in metal fuel cell cartridges; or

(0) 200 g (7 ounces) for solids. (iii) No more than two spare fuel cell cartridges may be carried by a passenger;

(iv) Fuel cells containing fuel are permitted in carry-on baggage only;

(v) Fuel cell cartridges containing hydrogen in a metal hydride must meet the requirements in§ 173.230(d);

(vi) Fuel cell cartridges may not be refillable by the user.**Refu~ling** of fuel cell systems is not permitted except that the installation of a spare cartridge is allowed. Fuel cell cartridges that are used to refill fuel cell systems but that are not designed or intended to remain installed (fuel cell refills) in
a portable electronic device are not permitted;

(vii) Fuel cell systems and fuel cell cartridges must conform to IEC/PAS 62282-6-1 (IBR; 

### see §171.7 of this subchapter);

(viii) Interaction between fuel cells and integrated batteries in a device must conform to lEO/PAS 62282-6-1 (IBR, 

### see §171.7 of this subchapter). Fuel cell systems for which the sole function is to charge a battery in the device are not permitted;

(ix) Fuel cell systems must be of a type that wili not charge batteries when the consumer electronic device is not in use; and (x) Each fuel cell cartridge and system that conforms to the requirements in this paragraph (a)(18) must be durably marked· by the manufacturer with the wording: "APPROVED FOR CARRIAGE IN AIRCRAFT CABIN ONLY" to certify that the fuel cell cartridge or system meets the specifications in IEC/ PAS 62282-6-1 (IBR, 

### see §171.7 of this subchapter) and with the maximum 49 CFR Ch. I (10-1-11 Edition)
quantity and type of fuel contained in the cartridge or system.

(xi) Spare fuel cell cartridges containing a flammable Uquid (Class 3) or corrosive material (Class 8) may be transported in checked baggage.

(xii) Spare fuel cell cartridges containing liquefied flammable gas (Division 2.1), hydrogen in a metal hydride (Division 2.1) or water reactive material (Division 4.3) may only be transported in carry-on baggage. (b) The exceptions provided in paragraph (a) of this section also apply to aircraft operators when transporting passenger or crewmember baggage that has been separated from the passenger or crewmember, •including transfer to another carrier for transport to its final destination.

(c) The requirements to submit incident reports as required under §§ 171.15 and 171.16 of this subchapter apply to the air carrier.
[71 FR 14604, Mar. 22, 2006, as amended at 71 FR 78634, Dec. 29, 2006; 72 FR 44950, Aug. 9, 2007; 73 FR 4719, Jan. 28, 2008; 73 FR 23367, Apr. 30, 3008; 74 FR 2266, Jan. 14, 2009; 75 FR 73, Jan. 4, 2010; 76 FR 3381, Jan. 19, 2011; 76 FR 43531, July 20, 2011]

§ 175.20 Compliance and training.

An air carrier may not transport a hazardous material by aircraft unless each of its hazmat employees involved in that transportation is trained as required by subpart H of part 172 of this subchapter. In addition, air carriers must comply with all applicable hazardous materials training requirements in 14 CFR Part 121and 135.

§ 175.25 Notification at air passenger facilities of hazardous materials restrictions. (a) Each person who engages in forhire air transportation of passengers must display notices of the requirements applicable to the carriage of hazardous materials aboard aircraft, and the penal ties for failure to comply with those requirements in accordance with this section. Each notice must be legible, and be prominently displayed
so it can be seen by passengers in locations where the aircraft operator issues tickets, checks baggage, and maintains aircraft boarding areas. At a minimum,



### 760