### U.S. DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION OFFICE OF HEARINGS WASHINGTON, DC 

# RECEIVED**~lAY** 

## 2 7 2014 HEARING DOCKET

In the Matter of: FAA DOCKET No. FAA-2013-0040 Martinaire Aviation, LLC Respondent

THE HONORABLE RICHARD C. GOODWIN ADMINISTRATIVE LAW JUDGE FAA Case No.2011SW700189 (Civil Penalty Action) FDMS No. FAA-2013-0040



### COMPLAINANT'S RESPONSE TO MARTINAIRE'S MOTION IN LIMINE N0.1, N0.2 and NO. 3 NOW COMES the Federal Aviation Administration (hereinafter "FAA") pursuant to 14 C.F.R. Section 13.218 (Rule 13.218) and the Federal Rules of Civil Procedure and responds to Martinaire's Motions in Limine No.1, No. 2, and No. 3. The FAA requests the Court to deny these motions. In support of its response, the FAA states the following: I. INTRODUCTION Martinaire Aviation L.L.C. 1 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 (39) thirty-nine aircraft (24 owned and 15 leased) in its fleet. The company transports hazardous materials to various locations with its fleet on a regular basis. On January 15, 2013, the Federal Aviation Administration filed its complaint against Martinaire Aviation LLC ("Martinaire").

"- 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.On February 1, 2013, Martinaire through its attorney filed its answer pursuant to 14 CFR § 13.209(a). The complaint alleged that Martinaire violated 49 CFR § 175.33(a) (l) 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. On July 8, 2013, the Honorable Judge Richard Goodwin granted Complainant's Motion for decision on the allegations in the complaint but denied a decision on the issue of civil penalty. Consequently, the sole issue remaining before this court is whether a civil penalty of $206,550.00 is appropriate for the facts and circumstances of this case. COMPLAINANT'S RESPONSE TO MOTION IN LIMINE NO. 1 In Respondent's Motion in Limine No.1, Respondent requests that the Court enter an Order providing that: 1. Complainant be excluded from submitting any evidence as to how it determined the appropriateness of and/or calculated the subject sanction; and 2. Complainant's counsel be ordered not to make any mention or reference thereto in opening statements, during trial, in argument or closing, and to direct persons under their control likewise to avoid such mention. Such an Order violates case law and is directly contrary to the U.S. Department of Transportation Federal Aviation Administration National Policy Order 2150.3B ("FAA Order 2150.3B") "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))
. 2 In addition, the FAA Order 2150.3B states "in determining the sanction to be assessed, penalty criteria set forth in 49 U.S.C. § 5123 must be considered." 3

2 Husky Corporation, FAA Order No. 2010-8 (June 16, 2010) at p.13. 3 U.S. Department of Transportation Federal Aviation Administration National Policy Order 2150.3B, Appendix C. Sanction Guidance Hazardous Materials Enforcement, Para. 2., p.C-1. 2To make this determination, the Court must hear from the Federal Aviation Administration's ("fAA") witnesses who have investigated Martinaire's conduct in this case. The FAA witnesses are familiar with the factors set forth in 49 U.S.C. § 5123(c) as they relate to Martinaire's violation of the hazardous material regulations. 4 Consequently, Plaintiff requests that the Court deny Respondent's request for an Order as stated above because it is contrary to case law and the FAA's Order 2150.38. COMPLAINANT'S RESPONSE TO MOTION IN LIMINE NO. 2 In Respondent's Motion in Limine No.2, Respondent requests that the Court enter an Order precluding: 1. Testimony of persons not previously identified by Complainant in pre-hearing discovery; 2. Messrs. Klimas and Buchanan from testifying in Complainant's case in chief with respect to the facts and violations alleged in the Complaint as those facts and violations have been deemed established under the Order Granting in Part and Denying in Part Complainant's Motion for Decision; 3. Messrs. Klimas and Buchanan from testifying in Complainant's case in chief with respect to the appropriateness or reasonableness of the sanction; 4. Expert Witness testimony; and 5. Opinion Testimony. Respondent seeks to bar persons not previously identified by Complainant in pre-hearing discovery. In its responses to Respondent's first set of interrogatories, interrogatory 2.1 Complainant stated the following:

4 49 U.S.C.§ 5123(c) Penalty considerations.--In determining the amount of a civil penalty under this section, the Secretary shall consider-- (1) the nature, circumstances, extent, and gravity of the violation; (2) 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 (3) other matters that justice requires.
3Testimony of Persons Not Previously Identified Interrogatory 2.1.: State the name, occupation, employer address and telephone number of each person Complainant intends to call as a witness (including but not limited to percipient witnesses, investigators, and experts) at the hearing. Response to Interrogatory 2.1.: Bryan Buchanan, Manager, Hazardous Materials Section FAA Southwest Regional Office 2601 Meacham Blvd., Fort Worth, Texas 76137 (817) 222-5700 Paul Klimas Hazardous Materials Specialist FAA Southwest Regional Office 2601 Meacham Blvd., Fort Worth, Texas 76137 (817) 222-5700 Complainant also responded to Respondent's interrogatory No. 2.7 stated as follows: Interrogatory 2.7.: If Complainant secures additional witnesses not mentioned in response to Request No. 2.1, above, MARTINAIRE requests a supplementary witness list and a brief statement regarding the subject matter of the testimony of each of the witnesses. Response to Interrogatory 2.7.: At this time the agency anticipates calling the following two witnesses. The agency will provide additional witnesses' names if it decides to call additional witnesses. Bryan Buchanan, Manager, Hazardous Materials Section FAA Southwest Regional Office 2601 Meacham Blvd., Fort Worth, Texas 76137 (817) 222-5700 Paul Klimas Hazardous Materials Specialist FAA Southwest Regional Office 42601 Meacham Blvd., Fort Worth, Texas 76137 (817) 222-5700 Respondent has deposed both Bryan Buchanan and Paul Klimas. The FAA intends to call both of these witnesses to testify about the civil penalty factors listed in 49 U.S.C. § 5123(c) as it pertains to the Martinaire's hazardous material violations. These criteria include the nature, circumstances extent and gravity of the violation; the degree of culpability of the violator; the history of past violations (if any); the ability to pay; the effect on the ability to continue to do business; and other matters as justice requires. Messrs. Klimas and Buchanan Respondent seeks a Court Order to preclude**~Messrs.** Klimas and Buchanan from testifying in Complainant's case in chief with respect to the facts and violations alleged in the Complaint, as those facts and violations have been deemed established under the Order Granting in Part and Denying in Part Complainant's Motion for Decision." The Complainant objects to this broad based Order and requests that the Court deny such an Order. As stated above, the Complainant intends to call Messrs. Klimas and Buchanan to testify about the penalty criteria set forth in 49 U.S.C. § 5123, set forth above. The case law and the FAA 2150.3B Order permit this kind of testimony. Appropriateness or Reasonableness of the Sanction Complainant requests that the Court deny Respondent's request to impose an Order precluding**~Messrs.** Klimas and Buchanan from testifying in Complainant's case in chief with respect to the appropriateness or reasonableness of the civil penalty. In Respondent's Motion in Limine No. 2, Respondent claims**~this** civil penalty is unprecedented." 5 At page 3 of Respondent's Motion in Limine No. 2, Complainant states "the only issues remaining are the appropriateness of the sanction and Respondent's affirmative defenses." Complainant through its witnesses Messrs. Klimas and Buchanan will testify about the aggravating factors in this case. For example, Martinaire routinely failed to properly prepare Notice to Pilot-in-Command**(~NOPICS")** documentation for flights transporting hazardous materials. By failing to provide

5 Motion in Limine No. 2 at page 2. 

### 5all of the required information on the NOPICS as required, Martinaire endangered the lives of its crewmembers and emergency responders in the event of an incident involving a Martinaire aircraft. This is a systemic issue with Martinaire. In order to assess the degree of harm Martinaire's conduct poses to the public, the Court should hear and evaluate the testimony of Messrs. Klimas and Buchanan. Their testimony will be consistent with the type of testimony allowed to prove the amount of civil penalty under 49 U.S.C. § 5123(c). Secondly, Martinaire's violation history is aggravating. This factor is the type of testimony allowed by 49 U.S.C. § 5123(c). 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-in-Command 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. Testimony on past violation history is allowed under 49 U.S. C. § 5123(c). Thirdly, under 49 U.S.C. 5123(c) Messrs. Klimas and Buchanan can testify about the corrective action implemented by Martinaire. 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 NOPIC forms.

• Dispatchers underwent supplemental training on July 14, and 15, 2011.

• On July 26, 2011 Chief Pilot Michael Bates sent another broadcast email to all pilots further clarifying how to complete the NOPIC.

• The Dispatch Manager, Chief Pilot and Assistant Chief Pilot now perform daily audits of all new NOPICS. Any discrepancies are corrected and persons responsible for any errors are promptly notified and counseled.
6• Upon receipt of NOPICS 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 This corrective action did not exceed the legal minimum requirement to warrant a reduction in civil penalty. Pursuant to 49 U.S.C. § 5123(c) Messrs. Klimas and Buchanan can testify to the systemic and continuing nature of Martinaire's violation history. In short, Complainant requests the Court to deny any Order precluding Messrs. Klimas and Buchanan from testifying about the appropriateness and reasonableness of the sanction. Expert Witness Testimony Complainant asks the Court to reject any Order precluding expert witnesses to testimony. During discovery Respondent propounded the following interrogatories. Complainant's responded to Respondent's interrogatories as follows: Interrogatory 2.3.: For each expert witness Complainant intends to call at the hearing, provide a curriculum vitae, including a list of all publications authored in the previous 10 years and a list of all other cases in which, during the previous 4 years, the witness testified as an expert witness at trial or by deposition. Response to Interrogatory 2.3. At this time the agency does not intend to call any expert witnesses. If Complainant decides to call an expert witness, it will provide this information to Respondent prior to the hearing. Interrogatory 2.4.: For each expert witness Complainant intends to call at the hearing, provide a statement of all opinions the witness will express and the basis and reason for them. Response to Interrogatory 2.4.: At this time the agency does not intend to call any expert witnesses. Interrogatory 2.5.: For each expert witness Complainant intends to call at the hearing, provide copies of any documents prepared or reviewed by said expert witness.



### 7Response to Interrogatory 2.5.: At this time the agency does not intend to call any expert witnesses. To date, no documents have been prepared or reviewed by an expert witness. Complainant's witnesses, Messrs. Klimas and Buchanan will testify about the penalty criteria outlined under 49 U.S.C. § 5123(c). Messrs. Klimas and Buchanan are able to testify as fact witnesses concerning the nature, circumstances, extent, and gravity of the violation; the degree of Respondent's culpability; the history of Respondent's past violations; and other matters as justice requires. It is important to note that at no time during this proceeding has Respondent claimed a financial inability to pay the civil penalty. Opinion Testimony In Respondent's Motion in Limine No. 2, Respondent requests that the Administrative Law Judge issue an Order precluding Opinion testimony. Complainant, FAA, asks the Administrative Law Judge to deny this request. Rule 701. Opinion Testimony by Lay Witnesses permits the testimony of witnesses like our inspectors to testify on matters to determine a fact in issue. The facts in issue arise under 49 U.S.C. § 5123(c). The facts in issue include the following:

• the nature, circumstances, extent, and gravity of the violation; • with respect to the violator, the degree of culpability; • any history of prior violations, • the violator's corrective action. These facts arise from the civil penalty factors which the decisionmaker must consider in determining the amount of civil penalty. Furthermore, Complainant asks the Administrative Judge to deny Respondent's request to bar opinion testimony because Rule 701 Opinion Testimony, permits opinion testimony by lay witnesses. Rule 701 of the Federal Rules of Evidence states: Rule 701. Opinion Testimony by Lay Witnesses If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is: (a) Rationally based on the witness's perception. 

### 8(b) Helpful to clearly understanding the witness's testimony or to determining a fact in issue; and (c) Not based on scientific, technical, or other specialized knowledge within the scope of Rule 702. Complainant offers Messrs. Klimas and Buchanan for a skilled lay observer opinion based on their knowledge of Martinaire's transportation of hazardous materials on a regular basis. For a skilled lay observer opinion, the proponent must establish: 1. That the witness has, on prior occasions sufficient in number to support a reasonable inference of knowledge of or familiarity with a subject, observed particular events, conditions, or other matters. 2. That the witness on a certain occasion observed a specific event, condition, or matter of the same nature as previously observed. 3. That on the basis of his knowledge or familiarity with the event, condition or matter, he has an opinion as to the event, condition or matter involved in the case. 4. That the statement of opinion will be helpful to clear understanding of the testimony of the witness of the determination of a fact in issue. 6 Messrs. Klimas and Buchanan have on prior occasions inspected and investigated hazardous material incidents similar to the one in this case. Secondly, on July 8, 2011, Paul Klimas conducted a hazardous material inspection at Martinaire Aviation L.L.C,, headquartered at 4553 Glen Curtis Drive, Addison, Texas. 7 Bryan Buchanan reviewed the findings of Paul Klimas' inspection. Mr. Buchanan and Mr. Klimas are familiar with hazardous material violations at Martinaire Aviation L.L.C. Their statements of opinion will be helpful to determine the facts in issue based on the civil penalty criteria set forth in 49 U.S.C. § 5123(c). Messrs. Klimas and Buchanan opinions are "rationally based on the perceptions of the witnesses" and "helpful to the determination of a fact in issue." Specifically, Messrs. Klimas and Buchanan would be testifying about the following issues:

6 See Courtroom Evidence, by U.S. Department of Justice (September 1998) at page 130, citing Federal Evidence Foundations, Murl A. Larkin at page 119-20. 7 See the Paul Klimas declaration, attached hereto as Exhibit· 1. 

### 9• the nature, circumstances, extent, and gravity of the violation; • with respect to the violator, the degree of culpability; • any history of prior violations; • the violator's corrective action; and • other matters that justice requires. Messrs. Klimas and Buchanan can testify about the systemic failure of Martinaire's corrective action, Martinaire's civil penalty history, Martinaire's culpability, the nature, circumstance, extent, and gravity of the violations and other matters as justice may require. COMPLAINANT'S RESPONSE TO MOTION IN LIMINE NO. 3 In Respondent's Motion in Limine No. 3, Respondent requests that the Administrative Law Judge issue an Order prohibiting: 1. Any testimony or other evidence as to the purpose of the NOPIC other than those specifically enumerated in HMR Section 175.33; and 2. Preclude the offering or receipt of any testimony or other evidence that NOPIC's are required to assist first responders in the event of an aircraft mishap. Complainant respectfully asks that the Court reject Respondent's request. The overall purpose of the Federal Hazardous Material Transportation Law and the Hazardous Material Regulations is safety. 49 C.F.R. § 175.33(a) (l); (l) (i) and (7), provide:
§ 175.33 Shipping paper and notification of pilot-in-command (a) When a hazardous material subject to the provisions of this subchapter is carried in an aircraft, a copy of the shipping paper required by §175.30(a) (2) must accompany the shipment it covers during transportation aboard the aircraft, and the operator of the aircraft must provide the pilot-in-command with accurate and legible written information as early as practicable before departure of the aircraft, which specifies at least the following: (1) The prqper shipping name, hazard class and identification number of the material, including
10any 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 indicated 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. (7) 

### The date of the flight. 49 C.F.R. § 175.33(a) (1);(1) (i); and (7) ensures the goal of safety by requiring the pilot-in-command to properly identify**haza~dous** material it transports. This regulation seeks to protect not only the pilot-in-command, but to insure safety for anyone whether the pilot, a person on the ground, or a first responder. This goal is consistent with the regulatory purpose of the hazardous material regulatory scheme-safety. In conclusion, the Complainant requests that the Administrative Law Judge deny all Respondent's requests to exclude relevant evidence and witnesses' testimony concerning the factors listed in 4 9 U. S
. C. 5123 (c)
.

11

### U.S. DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION 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) FDMS 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**-~** 

### GOVERNMENT**~** 

### EXHIBIT**~** ' 'E ]£:,**~** ' .

..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 i tern, "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, 0Nl268, 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 Martinaire Flight number 66, fails to include the complete proper shipping name, hazard class and correct identi"fication 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 as "Organophosphorus Compound, Toxic, Liquid, N.O.S. (Diphenylphosphoryl Azide), 6.1 UN3278, PG.II" (tracking number 129444340274593550). The NOPIC identifies the hazard class as "5.1". (See Exhibit G, attached)

. 10. The NOPIC, dated May 14, 2011 for Martinaire Flight number 700, fails to include the complete proper shipping name and correct identification number as required for a hazardous material properly classified as "Printing Ink, hazard class 3, 

### 2UN1210. The NOPIC incorrectly lists "UN1457" as the identification number. The identification number "UN1457" i.s for a product classified as, vcalcium 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 1Z5R91W80123229672, 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 1Z5R91W80123218942, fails to include the complete proper shipping name and packing group as required for a shiprrcent 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 128847490150235015 & lZ8847490150247628, fails to include the proper shipping name and packing group for shipments classified as Lithium Natal Batteries Packed with Eq'Jipment, hazard class 9, UN3091, PG II and Lithium Metal Batteries, hazard class 9, UN3090, PG II. The NOPIC incorrectly lists "!'Jedtronic" 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, PG III." Hazard Class 3 applies to flammable liquids and UN2800 is tbe UN identification number for "Battery, wet, non-spillable". The NOPIC incorrectly lists "Caret 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 inclu:le the complete proper

# -}
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## )···

. .**'--,~--** 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.

Dated:

# ~ 

# /

4

# Marlh:laire

Special AgentPaulKlimas Federal AviationAdministration August2, 2011

Joint Security andHazardousMaterials Safety Office, Central 2601 MeachamBoulevard FortWorth, Texas76137-4299


### Re: MartinaireAviation, LLC 

### EIR:2011SVV700189

Dear Special Agent. Klimas:. 'This letter is inresponseto 

### Mr. BrianBuchanan'sletter ofinvestigationdated July 19, 2011, whichMartinairereceivedon July 21, 2011. Attheoutset, Iwould liketo assure youthatyour letter, andthematters allegedtherein, havemerited Martinaire'sutmost attentionandconcern. As anFAA-certificated aircarrierthat hasbeeninbusiness for over32years, Martinaireisfully awareofitsstatutoryand regulatoryresponsibilities andconscientiously strives to fulfill sameinahighly professional and effective manner. Addressingthe specificmatters raisedintheletter ofinvestigation,the discrepancies noted during yourJuly 8, 2011 audit and summarized inparagraphs 1 . through 14 ofyourletter are substantially correct. In short, theNotifications of Pilot-In-Command(NOPC's)were notproperly completed, notonly contraryto the applicableHazardousMaterialsRegulations, butinderogation ofMartinaire'sown policies,procedures and manuals (as morefully discussedbelow). Youhave also allegedthatNOPC'sinvolving shipments ofDryIce, inmany cases, lackedproper shippingnames. Again, we do not disputeyourfindings and, again, theseNOPC deficiencies were contrarytoMartinaire'spolicies,procedures andmanuals. Asyou are aware, Martinaire'sGeneral OperationsManual (GOM)requires thatNOPC'sbefully and accurately completed (please see GOM SectionP, attached asAttachmentA).Inaddition, Martinaire's FAA-Accepted/Approved Operations andTraining Manual for the Acceptance and Transport ofDangerous Goods in Air Transportation, dated Febmary 19, 2008: -specifically statesthat employees, agents and contract employees may not perform any assignedduties or responsibilities involving the acceptance, handling, storage ortransportationofdangerous goods orhazardousmaterials (DG/HM) unless theyhave satisfactorily completedMartinaire's dangerous goodstraining withinthe last 12 calendar months (Training Manual, Part One, page vi), whichis more restrictivethanthe24 calendarmonthrequirement inthe regulations; -prohibitsthe loading or transport ofany DG/HMunless the NOPChasbeen completed (Training Manual, Part One, page 5); -requires thatthepilot incommandbe given accurate andlegiblywritten information (TrainingManual, Part One, page 9); and -mandates that specifictrainingmodules be completed during initial and recurrenttraining(Training Manual, PartTwo, page 3), includingN0PC's (Training Manual, PartTwo, page 3; Module 10). Excerpts from the above-citedTraining Manual are attachedas AttachmentsB, C, D andK Martinaire'spilot-specific initial and recurrenttraining syllabus for BAZMATrequires thatModule 10 (NOPC) trainingbe givento all personnel (other than skycaps,ticket counter agents and otherpersonnel engagedin baggage check-in procedures [notapplicable to Martinaire]; specifiesproceduresfor complying with 49 CFR 175.33 andmandates thatpilots and dispatchers are equallyresponsible for correctly filling outtheNOPC (excerpts attached as AttachmentF). As youwillrecall, the auditwas followed byan outbriefmg onJuly 8, 2011. Although Martinaire's ChiefPilotandAssistant ChiefPilotwere quite capableof handling this outbriefing onMartinaire'sbehalf, giventhenumbers and gravity of the discrepancies, I electedtopersonallyparticipateto ensure that all discrepancies were uncovered andinvestigated andthat all necessary and/or appropriate corrective actionwouldbetaken as quicklyaspossible. Inresponse to some concerns thatthe format ofMartinaire's existingNOPCformmighthave contributedto these discrepancies, itwas agreedthat Martinaire wouldrevise this form. This was done andbythe following Monday, July 11, the form wasnotonlyrevised, butprinted and distributed system-wide. Copies ofthe old andnewNOPCforms are attached as Attachments G and H. A copy ofChiefPilotMichaelBates' broadcastemailto all pilots and flightfollowers advising ofandtransmittingthisrevision is attachedas AttachmentI); 

### Inaddition, Martinairehas since takenthefollowing corrective actions:Training: Martinairereviewed and revised itstraining program for pilots and dispatchers to highten awareness andemphasizetherequirementfor accuracy in completingNOPC forms (copies ofthe revised training materials are attached as Attachments J and K). Dispatchersunderwent supplementaltraining onJuly 14 and 15 (training signoffs are are attached as AttachmentL). OnJuly 26, ChiefPilot Michael Bates sent anotherbroadcastemail to all pilotsfurther clarifyinghowto complete theNOPC and attaching averbatim copy ofHMR 175.33 (AttachmentM); Auditing: TheDispatchManager, ChiefPilot andAssistantChiefPilot now perform daily audits ofall newNOPC's. This is accomplishedunder my direct oversight. Any discrepancies are corrected andpersonsresponsiblefor any errors are promptlynotified andCOlmseled; Cross-checking: Uponreceipt ofNOPC's fromthepilots 

### incommand(either viaFAX ortelephone), dispatchers are requiredto check andconfirmthatthe informationcontainstheproper shipping name, UNIDnumberand Class. Ifany errors are found, they are to be corrected priorto the aircraft's departure. Each dispatchdesk and computerhas hard and electronic copies ofthelatestA.l.R. Shipperbook. Withthetables inbothalphabetical and numerical order, confirming proper shipping informationshouldbe more or less instantaneous; I thinkthatyouwill agreethatMartinairehasbeenfully cooperativeinthis investigation andthatits responseto theFAA's audit findings and implementation of corrective actions was immediate and effective. In short, webelieve thatwehave left "no stone unturned." Shouldyouwishto discuss this matterfurther, or shouldyouhave any additional concernsthatyoubelieve that Martinairehasnotfully addressed,please be assuredthat members ofMartinaire's SeniorManagementwill make ourselves available atyourconvenienceto resolve anyremainingissues and concerns.
letter. We thankyoufor your having afforded usthe opportunityto respondtoyour
Withbestregards, Verytrulyyours,

# ~- Alan S. Rusinowitz ExecutiveVicePresident and ChiefOperating Officer

# .---~ -'' ;gerous Goods 

## I HJ112MAT Notification 

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# MARTINAIRE

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## '"n"'''"'n or Leaking Packages are not Permitted on naireAircraft. Flight No. 

## (c.:>

(not required for dry ice shipments, 1 

# '8ao-d-)5-_

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· Damaged or Leaking Packages are not Permitted on

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on (zone or

Emergency Contact# From (not required**for~** shipments,

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# I Special Permit Req.: or pod):

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# /v1A.RTii\IAIRE 

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1

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General Info: For information regarding this form, contact Martinaire Flight Operations at 972-349-5700. Damaged or Leaking Packages are not Permitted on Martinaire Aircraft. Emergency Shipping Papers: (not required**for~** shipments, 172.604, C2)

on board aircraft (zone or

o Passenger 1 rgo Aircraft OnI

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non

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2011-05-17 05:26 D15PATCH LA1' 18833210224 » 972349Si55 p 2/2 

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# 35S"D l-8DO- \.f;lY""' 

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# ~**~·** Propershipping name :

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# • Quantity I Weight/ oPassengerAircralr oCargo Aircraft Only lbs or. ka (check Imarl<**appncab~**box) UP$ Tracl:lng #: Emergency Contact# From Shipping Papers; (notrequired**lor~**shipments, 172.804. C21



# ------**~** Proper**shipping~·** 

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### __.,

# ______ ·-· -· 

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### kg (check I mark applicable box) RAM Tl & Location (If applicable): Total# of DGIHM packages on board: 

## I
General Info: For information regarding this form, contact Special Permit Req.: DYesiJ;NO Martinaire Flight Operations at 972-349-5700. Captain's or Dispatcher's Signature:

### ))-~ , Damaged or Leaking Packages are not Permitted on 

# l ;, / Martinaire Aircraft. 

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Mart1narre Form MRA HAZ02 Re'**.---~---** 

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# MARTINAIRE 

# s-(13(11

Proper sh name : UNIP#: Hazard class :

or

Proper shipping name : UN IP#: Hazard class : QuantityI
or RAMT/

General Info: For information regarding this form, contact Martinaire Flight Operations at 972-349-5700.

. Damaged or Leaking Packages are not Permitted on

Martinaire Aircraft. Flight No.

## b~**~** AJC Tail# 

# .f1/Lj

# /3

I I for dry ice shipments, 1

non EMPL 

# 323

Location on (zone or pod):

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o PassengerAircraft 

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Captain's or

# I Apr 15 2011 5:47AM HP LRSERJET FAX p. 1 

### Dangerous Goods 

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## NOPC



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# 4**·1~·1/**

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name: UN : Hazard class :

General Info: For information regarding this form, contact Martinaire Flight Operations at 972-349-5700. Damaged or Leaking Packages are not Permitted on Martlnaire Aircraft. or pod):**Emergen~y** II From I (not required for dryJoe shipments, 172.604, C2)

C2)

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XI:J;J**.l3f~3SI:Jl** dH Signature:

# I
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## NOPC

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ng name: -Iazard class :

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eneral Info: For ir.fcrmaUon regarding tl1is form, contact artinaire Flight Operations at 

### 972-349-5700.

rmaged or Leaking Packages are not Permitted on 3rtinaire Aircraft. NCTail#

Emergency Contact 1 (not required for dry ice shipments, 1

ard aircraft (zone or p

angerAircraft X"r·-,-o AircraftOnly mark i box) Emergency Contact# From (not required for drv ice shipm&n!s,

Location on aircraft (zone or

o Passenger i o Cargo Aircraft I mark i Emergency Contact# From {not required for drv ice shipmenls,



### Captain's or

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# II,

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## __ I!: Pwper·ship;>in g name :



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( LiPS Tracking ;&: Emergency Contact# From Shipping Papers: (not required far drv ice shipments, 172.604, C2) 

# jl**·~----~~--------------------------------~----~--~--~~~~------~-------** 

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# t Its or _ko

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Gene"al lr1fo: For**itlfc.!Ti~;ato,1** regardir-;g this form:**ccr~tact r.Aartirai.~e** **Fli;~ht** Operation=: a1 972-349-5700.

. ,.,aged or Lsaf.:ing Packe:ges ere ,Jot Perillitted on**~',v·3r"t_:nalre** Af.-c:-af1. o PassengerAircraft o Cargo P..ircraft Only (ch>ck i ,T1a:k epplicable b-ox) i etaI¢!' cf DG/HM**package~** on board: 

# (

J 

### Special Permi: Req.: 

### CJYes}?No
j ! CaVai-,'s or**Dispatc~e"s** Signature:Respectfully submitted this 23rd day of May 2014.

ERIC E. ANDERSON Regional Counsel Southwest Region



### CERTIFICATE OF SERVICE Re: Martinaire Aviation, LLC, FAA Case No. 2011SW700189 I hereby certify that on this date, I have sent via Federal Express an executed original and one copy of COMPLAINANT'S RESPONSE TO MARTINAIRE'S MOTION IN LIMINE N0.1, N0.2 and N0.3 the addressed as follows: Federal Aviation Administration Attention: Hearing Docket, AGC 430 600 Independence Avenue, SW Washington DC 20591 Wilbur Wright Building-Suite 2W1000 Washington, DC 20591 (original plus one copy) (Federal Express) I further certify that on this date, I have sent via Federal Express a true copy of the COMPLAINANT'S RESPONSE TO MARTINAIRE'S MOTION IN LIMINE N0.1, N0.2 and N0.3 addressed as follows: The Honorable Richard C. Goodwin Administrative Law Judge Office of Hearings, M-20 Department of Transportation 1200 New Jersey Avenue, S.W. Washington, DC 20590 FAX: (202) 366-7536 (Federal Express)12I further certify that on this date, I have sent via Federal Express a true copy of the COMPLAINANT'S RESPONSE TO MARTINAIRE'S MOTION IN LIMINE N0.1, N0.2 and NO. addressed as follows: Mr. Michael L. Dworkin and Associates Law Offices 465 California Street, Suite 210 San Francisco, California 94104-1808 (Federal Express) Telephone: (415) 421-2500 Facsimile: (415) 421-2560

May 23, 2014

13