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

# RECEIVED
JUN O.i 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 MOTION FOR JUDICIAL NOTICE
NOW COMES the Federal Aviation Administration (hereinafter "FAA") pursuant to Rule 205(5) of the Rules of Practice in FAA Civil Penalty Actions, 14 CFR § 

### 13.205(5). Complainant moves the Court for an Order granting Judicial Notice of the following: 1. U.S. Department of Transportation, Federal Aviation Administration National Policy, Order 2150.3B, 

### specifically Appendix C. Sanction Guidance Hazardous Materials Enforcement Section, pages C-1 to C-17. 2. Warning letter to Martinaire, on FAA Case No. 2009SW700185, dated June 9, 2009. 3. Order Assessing Civil Penalty, FAA Case No. 2009NM700058, dated 0une 19, 2009. 4. Order Assessing Civil Penalty, FAA Case No. 2011-GL-70-0205. 5. The Court has authority to take judicial notice of the foregoing documents which are generally known within the Court's jurisdiction under FRE 201, can be accurately and readily verified from sources whose accuracy cannot reasonably be questioned and constitute public records and reports under FRE 803 (8), 902 (4), (5) and 1005.

### Respectfully submitted this 

### 2nd day of June 

### 2014.

ERIC E. ANDERSON Regional Counsel Southwest Region



### 2

### CERTIFICATE OF SERVICE The undersigned hereby certifies that on this 2nd 

### day of June, 2014, a true and correct copy of the foregoing:
I hereby certify that on this date, I have sent via Federal Express an executed original and one copy of Complainant's Request for Judicial Notice the addressed as follows: Federal Aviation Administration Attention: Hearing Docket, AGC 430 800 Independence Avenue, SW 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 Request for Judicial Notice addressed as follows: The Honorable Richard C. Goodwin Administrative Law Judge Office of Hearings, M-20 U.S. Department of Transportation 1200 New Jersey Avenue, S.E. (E11-310) Washington, DC 20590 TEL: (202) 366-5121 Staff Assistant FAX: (202) 366-7536 (Federal Express)
I further certify that on this date, I have sent via Federal Express a true copy of the Complainant's Request for Judicial Notice addressed as follows:
Mr. Michael L. Dworkin Michael L. Dworkin & Associates Law Offices 465 California Street, Suite 210 San Francisco, California 94104-1808 (Federal Express) Telephone: (415) 421-2500 Facsimile: (415) 421-2560


### ' June 2, 2014 mes Archier, Agency Attorney

7) 222-5074


### 310/01/07

1. Background. Appendix C. Sanction Guidance Hazardous Materials Enforcement 2150.38

a. Legislation. Congress determined that the unregulated transportation ofhazardous materials constitutes a threat to public safety in all forms oftransportation. Congress addressed thatthreat in 1974 by enacting the Hazardous Materials Transportation Act (HMTA). By 1990, Congress determinedthat effective enforcement ofthe HMTArequired more severe action, and enactedthe Hazardous Materials Transportation Uniform Safety Act of 1990, Public LawNo. 101-615, 1990 U.S. Code Congress. & Admin. News 104 Stat. 4605. Theprimary effect ofthis 1990 revision ofthe HMTA was to raise the maximum civil penalty for violation ofany regulation enacted under the HMTAto $25,000, and, for the firsttime, to require a $250 minimum penalty for any suchviolation. The HMT A was recodified in 1994 and is now referred to as the "Federal hazardous material transportation law," 1994 U.S. Code Congress. & Admin. News 108 Stat. 759, codified at 49 U.S.C. §§ 5101-5127. Inthe 1994 recodification, Congress specifically stated thatthe recodification created no substantive change to the earlier form ofthe statute. In 2005, the Congress enacted and the President signed the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA- LU), Public Law 109-59, August I0, 2005. That legislation, among other things, modified the limitations on civil penalties that may be assessed for violations ofthe hazardous materials statute and regulations.
b. Civil Penalties. TheFederal Civil Penalties Inflation Adjustment Act of 1990,28 U.S.C. § 2461 (note), as amended by the DebtCollection Improvement Act of 1996, Public Law 104-134, April 26, 1996, provides a mechanism for adjustments for monetary civil penalties for inflation in order to maintainthe deterrent effect ofmonetary civil penalties and promote compliance with the law. Under the statute, the adjusted civil penalty maximums cannot be applied unless they are implementedbyregulation. The adjusted civil penalties are listed in part 13 ofTitle 14 ofthe CFR, subpart H.
Pursuantto SAFETEA- LU, the maximum civil penalty that may be assessed for a violation ofthe Federal hazardous material law or a hazardous material regulation is now $50,000; the minimum civil penalty is now $250. There are two exceptions to those limits. A maximum civil penalty of$100,000 may be assessed ifthe violation results in death, serious illness, or severe injury to anyperson, or substantial destruction ofproperty. The minimum civil penalty that may be assessed for a training violation is $450.

c. Enforcement Responsibility. Within the Department ofTransportation, the Pipeline & Hazardous Materials Safety Programs Administration (PHMSA), createdbythe Norman Y. Mineta Research and Special Programs ImprovementAct in 2004, adopts the Hazardous Materials Regulations (HMR), which govern the transportation ofhazardous materials (hazmat). TheFAA, under delegated authority, enforces the Federal hazardous material transportation law and the HMR, with particular emphasis on shipment ofhazmatby air. 49 C.F.R. § 1.470).

C-110/01/07 2150.38

d. Violation ofthe HMRs. The HMR setforth regulations for the transportation ofhazmat. A knowing violation ofthe statute or ofthe HMR can supportthe assessment ofa civil penalty between $250 and $100,000. A person acts knowingly when the personhas 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)(l)(A). The civil penalties authorized under the statute apply to each violation ofany regulation set forth in the HMR; they also apply to the violation ofan order, special permit, or approval issued by the Department. Moreover, under the statute, each continuing violation ofthe HMR can constitute a separate violation for each day a violation continues. In section 5124 ofthe statute, Congress prescribed criminal penalties for a willful violation ofthe Federalhazardous material transportation law orthe HMR; willful violations require evidence ofboth knowledge ofthe laws and regulations and intent to violate them.

e. Investigative and Enforcement Procedures. Part 13 ofthe Federal Aviation Regulations- Investigative and Enforcement Procedures (14 C.F.R. part 13) governs the procedures applicable to enforcement ofthe HMRbythe FAA. Hazmat violations occurring on or after August 2, 1990, may be dismissed by an administrative lawjudge (ALJ) ifa notice of proposed civil penaltyhas not been issued within 2 years ofthe violation, unless good cause for delay has been shown. 14 C.F.R. § 13.208(d). 2. Consideration ofStatutory Criteria. As a general matter, a sanction shouldbe imposed that is sufficiently deterrent butnot excessive, in order to comply with the underlying purposes ofthe Federalhazardous material transportation law andHMR. In determiningthe 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 ofthe violation; the degree ofculpability ofthe violator; the history ofpast violations (ifany); the ability to pay; the effect on the ability to continue to do business; and other matters asjustice requires. Some ofthese considerations already are factored to some extent 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 ofthe civil penaltywithinthe appropriate range, i.e., at the minimum, moderate, or maximum portion ofthe sanction range. The Matrixrecognizes that an even higher penalty couldbe warranted for a significantly aggravated case, consistent with the increased maximum penalty of$50,000 imposed by SAFETEA-LU. In addition, the Matrix reflects the potential $100,000 penalty, also imposedby SAFETEA-LU, for a violationthat results in death, serious illness, or severe injury to any person, or substantial destruction of property. 3. Consistency ofPenalty Sanctions. The Hazardous Materials Sanction Guidance is designed to promotebetter consistency so that similar penalties are imposed in similar cases. The specified Matrixranges (e.g., $250-$550, or $15,000-$32,500) are intended to reflect the nature, circumstances, extent, and gravity ofthe case as compared with other types ofcases. Each case, however, mustbe evaluated on its own facts. A sanction may differ from the specified Matrix ranges when the facts and circumstances ofa case support either a greater or lesser penalty. When a special agent believes that a penalty should exceed the specified Matrixranges, the agent should consult with legal counsel before further processing ofthe Enforcement Investigative Report (ETR). This consultation is not necessary in the case ofa recommended penalty that is



### C-210/01/07 2150.38

less than that provided in the Matrix. In either situation, the basis for the decision to go outside the ranges should be explained in detail.
4. Part 175 Violations. Violations ofpart 175 ofthe HMR, which establish particular requirements for air carriers and other aircraft operators, are contained in a separate matrix. However, such operators often offer hazardous materials for air transportation, as well as accept and transport them. For this reason, such operators may be liable for violations both as a business entity within the Hazardous Materials Sanction Guidance Matrix, as well as for specific air carrier violations.

5. Violation Committedby Small Business Entity. To meet statistics-gathering requirements, the investigating special agentmust determine whetherthe alleged violator qualifies as a small business concern under the SmallBusiness Regulatory Enforcement Fairness Act of 1996 (SBREFA). For an extensive discussion ofhow to make that determination, see Part OneAbbreviations and Definitions, in Appendix B ofthis order. Ifinvestigating special agents are unable to obtain independently information to determine whether an alleged violator is a small business concern, they request such information in the letter ofinvestigation. See sample letter ofinvestigation in Figure A-1 ofAppendix A. Because violations ofTitle 49 ofthe U.S. Code and the HMR may be committedby entities in addition to those normally regulated by the FAA, the investigating agent may need to refer to the SBA's complete table ofsize standards to find the correct size limit for an alleged violator.

a. EnforcementPolicy under SBREFA. Chapter 7, Paragraph 10, ofthis order generally outlines the FAA's enforcement policy under SBREFA. In determining whether and how to provide for the reduction or waiver ofcivil penalties for statutory or regulatory violations by small entities, the FAA's policy may contain certain conditions. Those conditions may allow for excluding from such a reduction or waiver: a small entity that has been subjectto multiple enforcement actions by the agency, a violation involving willful or criminal conduct, a violation that results whenthere has not been a good faith attemptto comply withthe requirements, and a violation that poses a serious health, safety or environmental threat. With respectto air carriers and other aircraft operators, the FAAtakes into consideration company size in determining the appropriate amount ofcivil penalty. See the Matrix, Figure C-1, below.
b. Information Sheet for Complaints by Small Business Concerns. Each FAA employee who conducts an inspection ofa small business concern that is regulated by the FAA provides the small business concern with an information sheet. The information sheet informs that entity that it may submit complaints orcomments regarding unfair FAAregulatory enforcement to the National Ombudsman. FAA special agents may obtain a copy ofthe information sheet for hazardous materials inspections and additional guidance for distributing it from the ASH regional offices.

c. Reduction or Waiver ofPenalty. The FAA does not reduce orwaive the penalty ofan alleged violator solely because it is a small business entity. This is because a violation ofthe hazmat statutes or HMRtypically poses a serious health, safety, or environmental threat (and may involve one ofthe other reasons for exclusion). Accordingly, the FAA will usually reduce

C-310/01/07 2150.38

or waive a penalty only ifthe small business entity provides evidence to demonstrate its inability to pay or that the proposed penalty would prevent the entity from continuing in business. 

### d. Enforcement Actions Other than Civil Penalties. The FAA may, in limited circumstances, announce policies to provide for hazmat enforcement actions less onerous than civil penalties, 

### that is, administrative actions. Such policies may apply to small business entities orto others, and will be announced as Compliance and Enforcement Bulletins in this order. 

### 6. Use ofthe Sanction Guidance. This guidance provides agency personnel with a systematic way to evaluate a case and arrive at an appropriate penalty, considering all the relevant statutory criteria including mitigating and aggravating circumstances, ifany. Statutory considerations have been factored into the various ranges within the Sanction Guidance Matrix. Determination ofwhere a sanction lies within these ranges is aided by a series ofweighting questions that probe the various aggravating and mitigating factors that may exist in a case.



### a. Weight Analysis. First, tbe weighting analysis is performed. Agency personnel respond to a series ofquestions to determine the aggregate weight ofthe case. The aggregate weight of the case helps determine the sanction amount for each violation group within the established ranges ofthe Matrix. 

### b. Determination ofSanction. Itis important to note that determination ofwhere the sanction lies within the Matrix is notthe result ofa mathematical computation. Evaluation ofthe case is based on the totality oftbe facts and circumstances. Generally, ifthe answer to a particular question represents a more significant aspect ofa case, greater consideration should be given to that answer. For example, violations involving an extremely dangerous substance, even in minute quantities, might warrant a penalty at the maximum end ofthe range or even a penalty exceeding the Matrix ranges (ifnot already at the statutory maximum).



### c. Determination ofCategory. Under the Sanction Guidance Matrix, agency personnel determine the category ofviolatorthe person falls within (jar example, business entitythat regularly offers, accepts, or transports hazmat) and tbe offense category (jar example, undeclared shipmentwithin hazmat quantity limitations). The sanction ranges under the various violator categories take into account tbe relative culpability oftbe violator. Similarly, tbe offense categories address the nature, circumstances, and gravity ofthe particular offense. After determining the appropriate categories and intersecting boxoftbe Matrix, agency personnel then determine which subcategories ofoffenses (jar example, shipping papers) are alleged to have been violated. Based onthe weighting analysis performed in subparagraphs 8.a.-e., an appropriate penalty is assigned for each ofthe applicable violation groups. The penalty amount for each relevant violation group is added together to reach the recommended sanction. 

### d. Other Relevant Sanction Factors. Under subparagraph 8.g., the special agent then considers other relevant factors, including evidence ofcorrective action. A recommended sanction may be reduced prior to the issuance ofa notice ofproposed civil penalty when there is adequate reliable information concerning the corrective actions taken by a respondent. Corrective actions thatjustifY reduction ofthe recommended penalty must exceed the minimum



### C-410/01/07 2150.38 legal requirements. The special agent also attempts to provide information concerning the alleged violator's size, financial condition, and ability to pay a recommended sanction.
7. FAA Legal CounselReview. When an EIR is forwarded to legal counsel for enforcement action, counsel will give appropriate consideration to the recommended sanction. FAA legal counsel will also review the factors, analysis, and determinations underthe Hazardous Materials Sanction Guidance. The basis for deviating from the recommended sanction, ifany, should be explained to, and discussed with, the investigating special agent. Final determination ofthe sanction amountproposed in the notice ofproposed civil penalty is ordinarily a product of joint decisionmaking and approval ofthe investigating agent and the legal office.

8. FederalAviation Administration Hazardous Materials Sanction Guidance. This Sanction Guidance is divided into three sections: case analysis; utilization ofthe Sanction Guidance Matrix (Matrix); and consideration ofother statutory factors. The Sanction Guidance Matrix is contained in Figure C-1 andthe Risk Categories are contained in Figure C-2.

a. Case Analysis (Evaluation ofStatutoryAssessmentFactors). 

### (1) This section contains a series ofquestions to assist a special agent in evaluating a case and recommending a sanction. It also assists an attorney in evaluating a case file prior to initiation, and after additional information is received in response to a notice ofproposed civil penalty. The questions review factors involving the nature, circumstances, extent and gravity of the violation, the violator's degree ofculpability, andthe violator's history ofprior violations. Some ofthese factors are already considered to some extent within the various categories ofthe Sanction Guidance Matrix. The questions in this section provide additional consideration ofthe statutory factors and examine the existence ofaggravating and mitigating factors in a case. (2) The agent answers each question in Section I and determines ifa relative weight of minimum, moderate, or maximum should be assigned based on the response to the question. With the exception ofQuestion (I)( a), not all questions will necessarily apply to a given fact situation. Question (I)(a) addresses the nature ofthe hazardous material(s) involved, and the evidence will indicate the risk category and, therefore, the weight. The aggravating or mitigating factors addressed in the other questions only apply to the case when the question receives ayes response. Questions receiving a no response do not affect the weighting ofthe case and are not considered. For example, that the violation did notresult in injury or damage is not a mitigating factor, and should not result in penalty mitigation. In many instances, the answers to most or all ofthe questions will be no and the only relevant weighting factor in this section will be the risk category ofthe material identified in Question (l)(a). (3) In determining the final aggregate weight ofthe case, the responses to each ofthe questions do not have to be equally considered. Determination ofwhether the overall case should have a minimum, moderate, ormaximum weight cannot be determined withmathematical certainty. Generally, ifthe answerto a question demonstrates that the factor at issue represents a more significant aspect ofthe case, greater consideration is given to that factor. The final aggregate weight is based on the totality ofthe facts and circumstances ofthe case. Once

C-5. 10/01/07 2150.3B
determined, the final aggregate weight is then utilized to arrive at the recommended sanction for each applicable violation group on the Sanction Guidance Matrix (See, Figure C-1). b. The Nature, Circumstances, Extent, and Gravity ofthe Violation (Factors Concerning the Shipment): (1) What material(s) was offered, transported, or accepted for air transportation? Figure C-2 divides hazardous materials ofparticular classes, divisions, and packing groups into three risk categories: Category A, Category B, and Category C. Find the material offered, transported, or accepted, in Figure C-2 and answerthe questions below.

• Ifthe material(s) is in CategoryA, assign aMaximum weight. • Ifthe material(s) is in Category B, assign aModerate weight. • Ifthe material(s) is in Category C, assign aMinimum weight. Guidance Note: The categories in Figure C-2 represent the inherent riskof danger to air transportationposedby the material. 

## If there is more than one type of hazardous material involved in the shipment, use the hazardous material in the highest riskcategory. (2) What quantity ofthe material(s) was offered, transported, or accepted for air transportation?

• Didthe package(s) exceed the authorized quantity limitations by a significant amount? If yes, consider aModerate orMaximum weight depending on the degree to which the limitationwas exceeded. Guidance Example: The quantity limitation for gasoline on apassengerplane is 5 litersper package. 

## If a violator offers 30 liters in a singlepackage on apassengerplane, assign a maximum weight for thisfactor.

• Didthe package contain a forbidden material? If yes, assign aMaximum weight.

• Were there multiple packages inthe shipment? Ifyes, consider a Moderate or Maximum weight, depending on the number ofpackages and total amount ofhazardous material beingtransported in violation. Guidance Note: A package means a packaging plus its contents. There may be multiple packages in one shipmentor overpack. Multiplepackages often representmultiple violations. Under the Sanction Guidance, thisfact is consideredan aggravatingcircumstance rather than a direct multiplier of the sanction for each violation. Each case, however, must be evaluatedon its particular facts. A very large number of packages may result in such an egregious case that the overall weight of the case is so high that apenalty beyondthe maximumpoint in the range is warranted An investigation will occasionally reveal sufficient evidence of severalshipments from the same offeror over aperiodof several days, all of which involve violations of the HMR. These independent acts of offering usually are consolidated into one EIR andaddressed in one notice
C-610/01/07 2150.38
of proposedcivilpenalty. However,forpurposes of determining the appropriate sanction, each separate shipmentwith separate air waybill orshippingpapers, separate destination, and/or other evidence establishing it as a separate shipment, is ordinarily consideredas a separate incident forpurposes of applying the sanction guidance analysis. It is suggestedthat the separate shipments be treatedas individual counts in the EIR andthe notice of proposedcivil penalty, with each count having its own sanction derived from application of this guidance. (3) Didthe shipment cause some damage or harm to persons or property or interfere with commerce? Ifyes, consider aModerate orMaximum weight. Guidance Note: Thefact that no damage occurredas a result of the shipment is not a mitigating factor. However, damage or harm mayaggravate the nature, circumstances, extent, andgravity of the violation. Dependingon the degree**~f**damage caused by the shipmentand/or the existence of other aggravatingfactors, departurefrom the ranges may bejustified. It is important to note thatdeath, serious illness, orsevere injury to anyperson, orsubstantial destruction of property, warrants additional consideration of aggravation of the totalpenalty.

c. Violator's Degree ofCulpability. The Matrix, Figure C-1, considers the relative culpability ofthe violator. This section ofthe analysis further evaluates the degree ofculpability ofthe violator. (1) Is the violator the manufacturer ofthe hazardous material? If yes, consider a Maximum weight. Guidance Note: A manufacturer of a hazardous material is expectedto have complete knowledge of the nature of the hazardous material itmanufactures or uses; thus, a high degree of culpability will ordinarily be imputedto it. (2) Did someone other than the violator prepare the shipment for transportation? Ifyes, consider aMinimum orModerate weight. Guidance Note: Facts supporting an affirmative answer to this question may be cause to mitigate culpability and/orpursue a separate enforcementaction against other responsible parties who handledthe shipment. A shipper that reships materials received from another person in the samepackaging is independently responsible for ensuring the shipment complies with the HMR. Nevertheless, the reshipper is generally consideredto have a lesser degree of culpability for compliance of thepackage as received. However, 

## if the reshipper unpacks and/or repackages the shipment, the reshipper remains as culpable as the originalshipper and generally is notaccordedmitigation under this weighting factor. (Forpurposes of this section, a "reshipper" refers to aperson, other than the original offeror, who offers a shipment of hazardous material for transportation.) (3) Did the violator reasonably rely on incorrect information from another source? If yes, consider a Minimum weight.



### C-710/01/07 2150.38

Guidance Note: Detrimental, reasonable reliance on anotherparty may be a mitigating factor when considering the violator's degree of culpability. For example, reliance on an inaccurate Material Safety Data Sheet (MSDS) wouldbe mitigating. (4) Does the violator have a history ofprevious HMR violations? If yes, consider a Moderate or Maximum weight. Guidance Note: To establish a violation history, apriorviolation must be an actual finding of violationpursuant to a legal enforcement action. Special agents shouldattempt to determine the corporate structure of the violator andwhether other business entities ornames are or have been usedby the entity in order to obtain a complete violation history. The number andage of violations shouldbe considered. Ordinarily,findings of violation more than 5years oldcarry less weight, unless a continuingpattern of violation exists.



### d. Other Factors. (I) Each case must be evaluated on its particular facts. As such, many cases may present unique scenarios and aggravating or mitigating factors that are not routinely seen. Ifan aggravating or mitigating circumstance exists that is not adequately addressed elsewhere in the sanction guidance, it may be included and assigned a weight under this section. The factor should be clearly identified and explained in the analysis portion ofthe EIR and carefully scrutinized by legal counsel. Guidance Note: For example, a shipment of a singlepackage containingseveraldifferent hazardous materials maypresentan aggravating factor. The degree of seriousness of this factor will increase 

## if the hazardous materials are incompatible with each other and, therefore, create an increasedrisk. Mitigating factors may also exist that have not been adequately considered. Forexample, a shipment containing a de minimis quantity of material oran amount thatwouldhave qualified under the small quantity exception of 49 C.F.R. § 173.4 maypresenta mitigating factor 

## if as a result there was a reducedriskto safety in transportation. That the material couldhave been shippedas a consumer commodity can also be a mitigating factor.



### e. Determine theFinalAggregate Weight ofthe Case. (I) All the responses/weights are evaluated to determine a final aggregate weight for the case (Minimum, Moderate, andMaximum.). Questions receiving a no response will not be included inthis evaluation. To determine the final aggregate weight, the agent or attorney must exercise his or her discretion in light ofthe statutory factors and knowledge ofthe particular facts ofthe case. The facts ofthe particular case will dictate the relative importance ofeach of the weighting factors in reaching the final aggregate weight. The fmal aggregate weight should be decided as a result ofcareful analysis, not a mathematical averaging. Itis possible that a single weighting factor may outweigh all others. The agent or attorney's analysis should always be explained in this regard.

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Guidance Example: A case involvinga hazardous material in the lowest riskcategory may be evaluatedto have a maximum weight because of the large quantity shippedor the damage resulting from the shipment. f. Utilize the Matrix (Figure C-1). (I) The sanction ranges under the offeror and offense categories ofthe Sanction Guidance Matrixreflectthe relative culpability ofthe violator and the nature, circumstances, extent, and gravity ofcases for the majority ofviolations. Consideration ofthese particular statutory factors under the Federal hazardous material transportation law is built into the Matrix. Further analysis ofthe statutory factors is required to determine the appropriate sanctionwithin the ranges established under the Matrix. This analysis is performed in subparagraphs 8.a.-e. After determining the final aggregate weight ofthe case under subparagraphs 8.a.-e., that weight is applied to the appropriate Matrix range to identifY the recommended sanction amount for each ofthe relevant violation groups and for the case as a whole. Although the notice ofproposed civil penalty may cite numerous violations ofa particular part or subpart ofthe HMR, unless upward departure isjustified, a single penalty amount for each violation group is ordinarily used to reach the full sanction. (2) Instructions.

• IdentifY the appropriate category for the type ofentity and the nature ofthe offense involved in the case. Refer to the Definitions Section that follows the Matrix in Figure C-1 for guidance. Go to the intersecting box and identifY the applicable sanction range for each violation group.

• Apply the conclusion reached in the subparagraphs 8.a.-e. weighting analysis to assign a sanction amount within the minimum, moderate, or maximum portion ofthe sanction range for each relevant violation group. The recommended civil penalty atthis stage is the sum ofthe sanctions for each ofthe applicable violation groups. A sanction should not be assessed for a violation group ifthere have been no violations ofthat part or subpart ofthe HMR The sanction amount for each violation group need not be identical but ordinarily is within the portion ofthe particular sanction range that represents the overall weight ofthe case. (3) Departure from the Matrix ranges. The ranges ofpenalties specified in the Matrix (e.g., $250-$550) are intended to cover the majority ofcases involving violations ofthe HMR. The facts and circumstances ofa particular case, however, mayjustifY either an upward or downward departure from the specified Matrixranges. This sanction guidance anticipates departure from the specified Matrix ranges whenjustified. A case involving violations in which the nature, circumstances, extent, and gravity ofthe incident are particularly severe or egregious, mayjustify upward departure from the specified ranges. Ifthe investigating agent believes, based upon the facts ofa case, that a penalty should exceed the specified Matrix ranges, the agent should consult with legal counsel before further processing ofthe ElR. (However, in no case may the civil penalty per violation exceed the maximum allowed by law.) Conversely, the investigating agent may believe that mitigating factorsjustifY a downward departure from the



### C-910/01/07 2150.38

Matrixrange. Consultation with legal counsel is not necessary in the case ofa recommended penalty that is less than that provided in the Matrix. (However, in no case may the civil penalty per violation be less than the minimum allowed by law.) In either situation, however, the agent is to provide a detailed explanation ofthe basis for the decision to go outside the ranges. (4) Violations ofpart 175 regulations, which establish particular requirements for air carriers and other aircraft operators, are contained in a separate matrix. However, such operators often offer hazmat for air transportation as well as accept and transport it. As such, the operator maybe liable for violations as a business entity within the main Matrix as well as for the specific part 175 violations.
g. Impact ofOther Statutory Factors. The Federal hazardous material transportation law also requires consideration ofa violator's ability to pay a civil penalty, the impact ofthe civil penalty onthe violator's ability to continue to do business, and other matters thatjustice requires. Consideration ofthese factors may result in adjustment ofthe recommended civil penalty calculated in subparagraph 8.f. In situations where the agent or attorney is in possession ofmitigating information, such an inability to pay the recommended civil penalty or corrective action taken, reduction ofthe recommended penalty may be appropriate. Mitigating information should be sufficiently reliable, uncontroverted, and documented in order to support reduction of the recommended civil penalty prior to issuing the notice ofproposed civil penalty. (1) Ability to payor continue in business. Historically, the FAA has considered these factors after the issuance ofthe notice ofproposed civil penalty due to the absence ofreliable financial information on which to base a reduction priorto the issuance ofa notice. This Sanction Guidance recommends that the special agent make efforts to obtain reliable information regarding the violator's size and financial condition for review prior to the issuance ofa notice. This informationwill be transmitted to the legal office for consideration. Itis recognized that it may not always be possible for the special agent and/or attorney to obtain reliable financial information on a particularrespondent, that financial circumstances change, and that information may be provided after the issuance ofthe notice that may warrant further consideration ofa respondent's ability to pay.

• The investigating agent will attemptto include financial information as an exhibit in the EIR. It is anticipated thatthis information, ifavailable, will be obtained from reliable financial data bases. Financial documentation should include, but need not be limited to, information concerning the violator's corporate structure, business address, officers, number of employees, and gross revenues.

• The investigating agent provides a statement or comment with respect to the financial information obtained but ordinarily does not evaluate the fmancial condition ofa respondent with respect to its abilityto pay a proposed civil penalty. The investigating agent's statement should encompass areas like the number ofemployees, gross revenues, and nature of business ofthe violator.

• FAA legal counsel reviews the financial information provided in the EIR and evaluates its sufficiency and relevance to the recommended civil penalty. Legal counsel may
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determine ifmore current information exists concerning the financial condition ofa respondent and ifthat information substantially differs from the information available at the time of preparation ofthe EIR. Ifthere is a basis for determining that the recommended sanction is inappropriate based upon the financial information provided in the EIR, the recommended sanction is adjusted prior to issuance ofthe notice ofproposed civil penalty. This is a preliminary consideration ofa company's ability to pay. As such, pre-notice adjustment ofa recommended civil penalty does not preclude further consideration ofa respondent's financial claims after issuance ofthe notice. (2) Corrective Action.

• The most common other matter that the FAA takes into consideration is corrective action. Corrective action that results in mitigation is remedial action that exceeds the minimum legal requirements. The primary factors in determining the appropriate amount ofpenalty reduction are the extent and timing ofthe corrective action. In other words, mitigation is determined onthe basis ofhow much corrective action was taken and how quickly the action wastaken. Systemic change intendedto prevent future violations should be given greater consideration. Similarly, corrective action that commences upon the violator's first learning of the violations ordinarily is given greater credit than corrective action that commences only after the violator receives the letter ofinvestigation or the notice ofproposed civil penalty. Mitigation ofa recommended civil penalty based upon corrective action should be referenced inthe Notice ofProposed Civil Penalty so thatthe respondent is on notice that credit already has been given for such action. (2) Status ofviolator as a small business entity orconcern. See subparagraphs 5.a.-b. above.

C-1110/01/07

OFFENSE CATEGORIES I. Declared Shinment L Shipping Papers 2. Labels 3. Markings 4. Packaging 5. Training 6. Emerg. Response 7. Release into Environ. 8. Other II. Undeclared ShiQment Within Hazmat Quantity Limitations L Shipping Papers 2. Labels 3. Markings 4. Packaging 5. Training 6. Emerg. Response 7. Release into Environ. 8. Other III. Undeclared Shipment Hazmat Forbidden**on~** or exceeds g!Y limits**for~** Passenger Aircraft L Shipping Papers 2. Labels 3. Markings 4. Packaging 5. Training 6. Emerg. Response 7. Release into Environ. 8. Other IV. Undeclared Shipment Forbidden**on~** or exceeds g!Y 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 ofbusiness
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 1,500-8,200 2,500-11,000 250-1 '1 00 1,500-8,200 2,500-11,000 250-1,100 1,500-8,200 2,500-11,000 250-1 '1 00 1,500-8,200 2,500-11,000



## ------------- 1,500-8,200 2,500-11,000 250-1,100 1,500-8,200 2,500-11,000 250-1,100 1,500-8,200 2,500-11,000 250-1,100 1,500-8,200 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 I0,000-32,500 500-32,500 7,500-32,500 10,000-32,500 500-32,500 7,500-32,500 10,000-32,500 500-32,500 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 10,000-32,500 500-32,500 7,500-32,500 10,000-32,500

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 1,000-5,500 1,000-5,500 1,000-5,500

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

10,000-32,500 10,000-32,500 10,000-32,500 10,000-32,500 10,000-32,500 10,000-32,500 10,000-32,500 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

CONSULT10/01/07 2150.38

Deliberate**Violation~** or LEGAL- Up to LEGAL- Up to LEGAL- Up to LEGAL- Up to other significant 50,000 per offense 50,000 per offense 50,000 per offense 50,000 per offense aggravation category may be category may be category may be category may be assessed assessed assessed assessed VI. Violation results in CONSULT CONSULT CONSULT CONSULT**death~** serious**illness~** LEGAL- Up to LEGAL- Up to LEGAL- Up to LEGAL- Up to severe**injur~~** or 100,000 per 100,000 per I00,000 per offense 100,000 may be substantial destruction offense category offense category category may be assessed ofnronertv may be assessed may be assessed assessed h. *Sanctions applicable to air carrier and commercial operator passengers and crewmembers. Therange for the total civil penaltyto be assessed, absent mitigating or aggravating factors, is $250 (the statutory minimum) to $1,000.

E. Group I & II F. Group III & IV 

### AIR CARRIERAND OTHERAIRCRAFT Air Carriers and Air Carriers and 

### OPERATORVIOLATIONS Other Aircraft Other Aircraft Operators Operators Failure to comply with Parts 171, 172, or 173 Use main Matrix. Use main Matrix. requirements ofthe HMR as an offeror ofhazmat. Improper acceptance ofhazmat 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. §§ 175.30(a)(l)- (4) Failure to inspect hazmat shipment properly.

See 49 C.P.R.§§ 175.30(b), (c), (d), (e) 10,000-32,500 5,000-16,200 Improper storage/securing ofhazmat aboard aircraft. I0,000-32,500 5,000-16,200 Failure to provide hazmat training, maintain records of 10,000-32,500 5,000-16,200 training, ormeet minimum requirements for hazmat training ( 49 C.F.R.). Using untrained/improperly trained hazmatpersonnel, 10,000-32,500 5,000-16,200 failure to retain hazmat training records (49 C.P.R.) Failure to notify FAAproperly ofincident/discrepancies 5,000-16,200 1,000-5,500 in hazmat shipment. Failure to provide notice to the pilot-in-command. 5,000-16,200 I,000-5,500 Other Part 175 violations. 5,000-16,200 1,000-5,500 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 maybe assessed may be assessed Violation results in death, serious illness, severe injury, or CONSULT CONSULTLEGAL substantial destruction ofproperty. LEGAL- Up to

- Up to 100,000 per 100,000 per offense category offense category may be assessed may be assessed
C-1310/01/07 2150.38

9. Definitions: Note that these definitions are only for the purpose ofapplying the sanction guidance inthis appendix.

a. Air Carrier and OtherAircraft Operator Groups (I, II, III, IV)- Air carriers and other aircraft operators are divided into two categories for purposes ofdetermining an appropriate sanction. These categories track the air carrier groups established in Appendix B this order. For purposes ofhazmat sanction guidance, the FAA also includes other aircraft operators operating 

### in commerce that are ofsimilar size, 

### e.g, part 129 Foreign Air Carriers, part 125 Operators, andpart 91 Operators. (1) Group I is comprised ofair carriers with annual operatingrevenue of$100,000,000 or more. Other aircraft operators with annual operating revenue of$100,000,000 ormore are included in Group I for hazmat sanction guidance purposes. (2) Group IIis comprised ofair carriers and other commercial operators that have an annual operating revenue ofless than $100,000,000, and have 50 or more pilots and operate 25 or more aircraft. Other aircraft operators ofthe same size are included in Group II for hazmat sanction guidance purposes. (3) Group Ill is comprised ofair carriers and other aircraft operators that do not meet the criteria for Group II, that is, they have only 6 to 49 pilots, or only 6 to 24 aircraft. Other aircraft operators ofthe same size are included in Group III for hazmat sanction guidance purposes. (4) Group IV is comprised ofall other air carriers and commercial operators not meeting the criteria for Groups I, II, or III. Other aircraft operators ofthe same size are included in Group IV for hazmat sanction guidance purposes. b. Business Entity. A business, corporation, partnership, Sub-S Corporation, sole proprietor, association, or any type ofcommercial entity. An individual who offers a hazmat shipment in air transportation in the course ofhis or her self-ownedbusiness falls into this category. Itincludes a non-profit organization and all other entities defined under the HMR's defmition of person (49 C.P.R.§ 171.8), withthe exception ofan individual (as defined below).

c. Business Entity thatRegularly Offers, Accepts, or Transports Hazardous Materials in the Course oflts Business. A business entity that offers hazmat with some anticipated frequency, or purports to do so, regularly offers hazmat. For example, a catalogue company that offers hazardous material to its customers would fall into this category, even though its actual sale or transportation ofthe hazmat is infrequent or limited. This category includes manufacturer or distributor ofhazmat and a freight forwarder.
d. Business Entitythat Uses, Handles Hazmat in the Course ofIts Business. This category encompasses the business that utilizes hazmat in its business but does notoffer it for transportation on a regular basis, as described above. For example, a manufacturer ofa nonhazmat productthat uses hazmat in the manufacturing process could fall into this category. It mustbe established thatthe company ordinarily does not offerthe hazmat it utilizes for transportation, and the shipment in this instance represents an isolated incident. Thistype of business is held to a higher standard than the business entity that has no regular involvement C-1410/01/07 2150.38

with hazmat The described business entity receives the subject hazardous material in transportation and uses it in its business; thus, it is clearly on notice ofthe hazardous nature of the material and the regulatory requirements to whichthe hazmat is subject

e. Declared Shipment. Forpurposes ofthis sanction guidance, a declared shipmenthas at least one ofthe following communicative indicia---markings, labels, and/or shipping papers that meetthe communicative requirements ofthe HMR. A package that has shipping papers that declare the contents as hazardous material, but is otherwise not marked or labeled, falls into this category. Forpurposes ofthis defmition, a shipping paper is any document to whichhandlers refer in the normal course oftransportation andthat complies with one or more ofthe communicative requirements in the HMR for shipping papers. Similarly, a properly marked and labeled packagethat lacks shipping papers also falls into this category. An example ofa shipment that would not meet this definition is one where the offeror states that the shipment contains hazmat, but onlyin paperworkto which the handlers do notrefer in the normal course oftransportation.
f. Hazmat- A hazardous material, as defined in 49 C.F.R. 

### § 171.8, includes and is interchangeable with the term dangerous goods, as used in the International Civil Aviation Organization (ICAO) Technical Instructions.
g. Individual- A human who offers a shipment ofhazardous material in his orher personal capacity, without any business purpose and not as part ofa commercial enterprise.
h. Intentional orDeliberateViolation- A violation falls into this category when the offeror, acceptor, air carrier, or aircraft operator has knowledge ofthe requirements ofthe HMR, and willfully circumvents or attempts to circumvent those requirements. Forexample, an offeror who places a properly marked and labeled hazmat shipment along with properly completed shippingpapers, into an overpack marked asprintedmaterial, has committed an intentional or deliberate violation.
i. Undeclared Shipment- Ifa shipment does not meetthe definition ofdeclaredshipment, it is an undeclared shipment j. Undeclared ShipmentHazmatExceeds QuantityLimits for All Aircraft- An undeclared shipmentthat is offered for transportation on ortransported on any aircraft and the quantity ofhazardous material exceeds the limit, perpackage, for transportation on cargo aircraft, as established in the 49 C.F.R. § 172.101 Table.
k. Undeclared ShipmentHazmat Exceeds Quantity Limits for PassengerAircraft- An undeclared shipment that is offered for transportation on ortransported on a passenger aircraft, and the quantity ofhazardous material exceeds the limitation, per package, for transportation on passenger aircraft (but not for transportation on cargo aircraft), as established in the 49 C.F.R. § 172.101 Table. I. Undeclared ShipmentHazmatForbidden on All Aircraft- An undeclared shipment that is offered for transportation on ortransported on any aircraft and the hazardous material is forbidden in air transportation on cargo aircraft, as established in the 49 C.F.R. § 172.101 Table. C-1510/01/07 2150.38

m. Undeclared Shipment Hazmat Forbidden on Passenger Aircraft- An undeclared shipment that is offered for transportation on or transported on a passenger aircraft, and the hazardous material is forbidden in air transportation on passenger aircraft (but not in air transportation on cargo aircraft), as established in the 49 C.F.R. § 172.101 Table.

n. Undeclared Shipment Within Hazmat Quantity Limitations. (I) Ifthe undeclared shipment is offered for transportation on or transported on a passenger aircraft, the quantity ofhazardous material must be within the limitation, perpackage, for transportation onpassenger aircraft, as established in the 49 C.F.R. § 172.101 Table. (2) Ifthe undeclared shipment is offered for transportation on a cargo aircraft, but not transported, the quantity ofhazardous material must be within the limitation, per package, for transportation on passenger aircraft, as established inthe 49 C.F.R. § 172.101 Table. (3) Ifthe undeclared shipment is offered for transportation on and transported on a cargo aircraft, the quantity ofhazardous material must be within the limitation, per package, for transportation on cargo aircraft, as established in the 49 C.P.R.§ 172.101 Table.
All other undeclared shipments fit within the definitions for UndeclaredShipmentHazmat Exceeds QuantityLimitsjor

...Aircrafl, or UndeclaredShipmentHazmatForbidden on...Aircrafl, see above.

C-1610/01/07



### CATEGORY "A" {Maximum Weight} 

### RISK CATEGORIES (Figure C-2) 2150.38

Category "A" materials are materials that when released in the confines of an aircraft can potentially have a catastrophic effect on an aircraft's ability to continue safe flight, resulting in a crash or emergency landing causing injury or death to passengers and flightcrew, as well as persons on the ground. Class 1 Class 2 Class 3 Explosives: Division 1.1, 1.2, 1.3, Compressed Gases All2.1, 2.2 with Subsidiary Risk 5.1 and All2.3 PIH Zones A-D Flammable Liquids PG I, II, and (PIH) Class 4 Division 4.1 Flammable Solids PG I, & (Matches) Division 4.2 Spontaneously Combustible Materials PG I (Pyrophoric) Division 4.3 Dangerous When Wet PG I Class 5 Division 5.1 Oxidizing Liquids and Solids PG I, II, e.g., "Chemical Oxygen Generators" Division 5.2 Organic Peroxides PG II (Type A,B,C,D) Class 6 Division 6.1 Toxic/Poisonous Materials PG I (PIH) Class 7 Cargo Aircraft Only Quantities on Passenger Aircraft Class 8 Corrosive Material Liquid PG I and (PIH) Forbidden Materials (See 49 C.F.R. § 173.21 & ICAO Technical Instructions) Forbidden Hazmat listed in Dangerous Goods Table 49 C.F.R. § 172.101 

### CATEGORY "B" {Moderate Weight} The materials listed in Category "B" are materials that may not pose an immediate threat to the safety of a flight, but can cause death or injuryto persons due to unintended releases in aircraft cabin areas, and potential damage to aircraft structures over a longer period oftime due to undiscovered releases on aircraft structural components. Class 1 Class 3 Class4

Class 5 Class 6 Class 7 Class 8 Division 1.4, 1.5, 1.6, All Compatibility Groups PG Ill Flammable Liquids Division 4.1 Flammable Solids PG II, Ill Division 4.2 Spontaneously Combustible Materials PG II, Ill Division 4.3 Dangerous When Wet PG II, Ill Division 5.1 Oxidizing Liquids or Solids PG Ill Division 5.2 Organic Peroxides (Type E,F,G) Division 6.1 Toxic/Poisonous Materials PG I, II ( NON- PIH ) Division 6.2 Infectious Substances Radioactive Materials, yellow label II, white Iabell Liquids PG II, Ill Solids PG I, II, Ill 

### Category "C" {Minimum Weight} The materials listed in Category "C" are materials that present the least amount of risk to the transportation system. Class 2 Class 6 Class 7 Class 9 2.2 Nonflammable Gas Division 6.1 Toxic/Poisonous Materials PG Ill All other RAM (LSA, LTD QTY, Instruments, and Articles) Miscellaneous Dangerous Goods {ORM-D and Consumer Commodity}

NOTE: This guidance is not intended to replace the experienced judgment of a special agentwho is convinced, based on the evidence and facts ofa case, that the failure of an air carrier, shipper, freight forwarder, or passengerto follow established regulations has posed a risk to aviation safety. C-17

### June 9, 2009
Mr. AlanRusinowitz, Vice President Martinaire Aviation, LLC (MT9A) 4745 FrankLuke Drive Addison, Texas 75001
DearMr. Rusinowitz:
EIR: 2009SVV700185 This letter is to inform youthat the Federal Aviation Administration (FAA) has concluded its investigation surrounding violations ofthe Hazardous Material Regulations (HMR) codified in Title 49 Code ofFederal Regulations (CPR) Parts 100 through 185 and/orthe International Civil Aviation Organization (ICAO) Technical Instructions for the Safe Transport ofDangerous Goods by Air by your organization. The violations were noted during a comprehensive hazardous material inspection conducted onApril 15, 2009, atDallas/Fort VVorth International Airport (DFVV), Texas and at your corporate offices at the Addison Airport, Addison, Texas. Notification ofPilot-In-Command (NOPIC) forms on file for MT9A flights were notproperly completed andhazardous materials training was notprovidedto employees responsible for completingthese forms as required. The FAA is inreceipt ofyour letters dated May 14, 2009 and May 29, 2009, outlining the corrective actiontaken byyour company. VVith regard to this information, we have concluded thatthe above violation does not warrant legal action. Inlieu ofsuch action we are issuing this VVarning Letter which will be made a matter ofrecord. Inthe future, we will expect your full compliance withthe HMR. Sincerely,

BryanE. Buchanan Manager, Hazardous Materials Section

### U.S. Department OfTransportation Federal Aviation Administration Office ofRegional Counsel NorthwestMountain Region Colorado, Idaho, Montana Oregon, Utah, Washington Wyoming 1601 Lind Avenue S.W. Renton, Washington 98057 Tel: (425) 227-2007 Fax: (425) 227-1007

June 19, 2009 FAA Case No. 2009NM700058
SERVED: CERTIFIED MAIL- RETURN RECEIPT REQUESTED
TO: President Martinaire Aviation, LLC 4745 Frank Luke Drive Addison, TX 75001 

### ORDERASSESSING CIVIL PENALTY
On April20, 2009, Martinaire Aviation, LLC was advised through a Notice ofProposed Civil Penaltythat the FAAproposedto assess a civil penalty inthe amount of$32,400.
After consideration ofall the available information, including the informationMartinaire Aviation, LLC presentedfollowing issuance ofthe Notice, ithas been determined that:
1. Martinaire Aviation, LLC (hereafter Martinaire) is a business entity that regularly offers, accepts, or transports hazardous material (HAZMAT). 2. Martinaire is also an air carrier with more than sixpilots. 3. On or about February 3, 2009, Martinaire accepted and transported two shipments for transport in air commerce. 4. One shipment was offered by BWTechnologies at Honeywell ofArlington, Texas. 5. This shipment was destined for PortAngeles, Washington. 6. This shipment was beingtransported by use ofUnited Parcel Service tracking number 1Z 6A5 69R 01 5763 2618.
7. This package was a declared HAZMAT and the shipping papers identifiedthe shipment as a Compressed gas, n.o.s. (nitrogen hydrogen sulfide), Class 2.2, UN1956. 8. The second shipment was offered byPML Microbiologicals, on or about February 2, 2009, at ornear Wilsonville, Oregon. 9. This shipment was beingtransported by use ofUnitedParcel Service tracking number 1Z 947 141 01 5165 1333.

### Martinaire Aviation, LLC- 2009NM700058 

### June 19, 2009 

### Page 2
10. This shipment was destined for PortAngeles, Washington. 11. OnFebruary 3, 2009, both ofthe above shipments were intransit and being loaded onto Martinaire flight 690 at Boeing Field in Seattle, Washington. 12. Priorto flight 690's departure, a Federal AviationAdministration (FAA) Hazardous Material Agentrequested that the pilotproduce the notificationto pilot in command for hazardous materials (NOPIC) for that flight. 13. The pilot was unable to productthe NOPIC and departed for Port Townsend, Washington knowing that these hazardous materials were aboard. 14. The pilot departed without the benefit ofa copy ofthe written notification to the pilot, to include the emergency response information during transport ofthe HAZMA T aboard the aircraft while in flight. 15. The FAAHazardous Material Agent thenrequested from Martinaire the NOPICs for the previous 90 days. 16. The following Martinaire NOPIC documents retained at Martinaire's principal place business were determined to be defective:
Date Flight# Aircraft Tail # PIC Employee # 11/7/08 690 N1324G 4242 12/5/08 690 N1324G 4242 1/29/09 690 Nl324G 4242 2/3/09 690 Nl324G 4242 2/3/09 690 N1324G 4242

17. Specifically, each ofthe above Martinaire NO PIC documents failed to:

a. List the hazard class, packing group, ortotal number ofpackages; b. confirmthat no damage or leaking packages have been loaded onthe aircraft;

c. confirmthat the package must be carried onlyon cargo aircraft ifits transportation aboard passenger-carrying aircraft is forbidden; or, d. indicate when applicable that a hazardous material was being carriedunder terms ofa specialpermit.

### Martinaire Aviation, LLC- 

### 2009NM700058 June 19,2009 Page 3 Byreason ofthe foregoing circumstances, Martinaire violated the following Department of Transportation Hazardous Materials Regulations (49 C.P.R.):

a. Section 175.33(b), it that it failed to have available to its pilot-in-command a copy ofthe written notificationto the pilot, to include the emergencyresponse information during transport ofthe hazardous material aboard the aircraft while in flight. b. Section 175.33(c)(2), inthat it failed to retain a copy ofeachnotification ofpilot-incommand for 90 days at the airport ofdeparture orthe operator's principal place of business.

c. Section 175.33(c)(3), in that it failed to havethe informationrequired to be retained under this paragraphreadily accessible at the airport ofdeparture andthe intended airport of arrival for the duration ofthe flight leg. d. Section 175.33(c)(4), inthat itfailed to make available, uponrequest, to an authorized official ofa Federal, State, or local agency at reasonable times and locations, the documents or informationrequired to be retainedby49 C.P.R. 175.33. NOW, THEREFORE, IT IS ORDERED, pursuantto Section 5123(a) ofTitle 49 ofthe United States Code (Transportation) [49 U.S.C. §5123(a)], Martinaire is assessed a civil penalty inthe amount of$20,000.
Martinaire's payment ofthe civil penaltypursuant to this Order does not constitute or imply admissions byMartinaire that it committed the violations found bythe FAA, orthatMartinaire agrees withthe facts averredbythe FAA. However, Martinaire acknowledges thatthis Order constitutes a finding bythe FAAofthe facts and regulatory violations containedherein.
We hereby acknowledge receipt ofMartinaire's check 

### inthe amount of$20,000 (CheckNo. 00039365, dated June 3, 2009, which we accept in full settlement ofthis matter. Martinaire may consider this matter closed. Regards,
DWIGHT S. WILLIAMS Regional Counsel

By: Scott R. Morris FAAAttorney
MC/mc

cc: Michael L. Dworkin, Esq.U.S. Department ofTransportation Great Lakes Region 2300 EastDevon Avenue Des Plaines, Illinois 60018 Federal Aviation Administration 

### May 18,2012
Inreply Referto: AGL-7B 2011-GL-70-0205 

### REGULARAND CERTIFIED MAIL

- RETURN RECEIPTREQUESTED
Mr. AlanRusinowitz Vice President Martinaire

### Aviation, LLC 4553 GlennCurtis Drive Addison, Texas 75001 

### ORDERASSESSING CIVILPENALTY
On

### December 19, 2011, youwere advisedtbroughaFinalNotice ofProposedCivilPenaltythatthe FAAproposedto assess a civilpenaltyinthe amount of$35,000.
Afterconsidering allthe evidence inthis matter, includingthe informationpresentedattheinformal conference, andpursuanttomutual agreement,the Administratorhas determinedthat: 1. On

### oraboutMay 11,2011,MartinaireAviation, LLC (MTA) transportedby

### airaone gallonofPurplePowerIndustrial StrengthCleaner/Degreaser, ahazardous material. 2. The above-describedcleaning liquidwas transported inaircraft N9505B from Cadillac, MI (CAD)to

### Ludington, MI (LDM) andthento Capital CityAirport (LAN) inLansing, MI, where itwas discoveredbyaFAA Special Agent (SA) during an inspectionofMTA's compliancewithhazardous materialtransportationlaws. 3. Inthe course ofthe investigation, an FAA special agent discovered that on or about May 11,2011, a MTA employee unlawfully transported hazardous material by air and therefore MT9A had notmet its employee hazardous material training requirements. 4. The material within the shipment is classified as hazardous materials under Section 172.101 ofthe Hazardous Materials Regulations. The proper shippingname for PurplePowerlndustrial Strength Cleaner/DegreaserisUN 1760, Corrosive LiquidN.O.S., Class 8, Packing Group II

. 5. Thishazardousmaterial shipmentwasnot declared, described, packaged, marked orlabeled as contaiuing hazardousmaterials orinthe properconditionfortransport accordingto the HazardousMaterialRegulations.
6. The shipmentwas notlabeled CARGO AIRCRAFT ONLY.

### 7. At all times mentioned herein, the shipment was not accompanied by a Shipper's Declaration for Dangerous Goods. 8. MTA transported the hazardous material above-describedby air without shipping papers containing the proper shipping name, without delineating the hazard class, without the prefix "UN" or "NA," as applicable; without the total quantity by weight orvolume ofhazardous material, and without a basic description ofthe hazardous material. 9. MTAtransported the above-described hazardous material by air without the proper packaging or labeling that would have indicatedthe hazardous nature ofthe liquid.
10. MTAtransported by air the above-described hazardous material without the proper shipping name, assigned identification number, orthe required markings in English. 11. MTA transported by air the above-described without properlypackaging the hazardous material in accordance with the Hazardous Material Regulations. 12. MTA did notmake emergencyresponse information, including the emergency response telephone number, available for use at all times the hazardous material was present. Byreason ofthe above, it appears that MTAviolatedthe following Department of TransportationHazardous Materials Regulations: a) 49 CFR 

### §171.2( e) inthat MT A transported by air hazardous material that was not properlypacked, classed, described, marked, labeled and was not in condition for shipment as required bythe Hazardous Material Regulations. b) 49 CFRPart 172.200(a), in that MTAtransported hazardous material by air and did not properly describe the material on shipping paper. c) 49 CFRPart 172.204(a), inthatMTAtransported hazardous material by air and did notproperly certifythat material in accordance withthe regulations. d) 49 CFR Part 172.301(a), in that MTA transported hazardous material by air in a non-bulk package and did not properly markthat material in accordance with the regulations. e) 49 CFRPart 172.400(a), inthat MTAtransported hazardous material by air anddid not properly label that material in accordance withthe regulations; f) 49 CFRPart 172.402(c), inthat MTAtransported by air hazardous material which is authorized on cargo aircraft ONLY ifthe package is labeled as CARGO AIRCRAFT ONLY as specified in49 CFRPart 172.448. g) 49 CFRPart 172.600(c)(2), in that MTAtransported hazardous material by air and did not provide emergency response informationin accordance withthe regulations;

2

### h) 49 CPR Part 172.702(a), in that MTA didnot ensure that employees involved in the handling ofhazardous materials were trained in accordance with subpart H ofpart 172;and i) 49 CPRPart 173.1(b), in thatMTAtransported hazardous material by air when that material was not prepared in accordance with the regulations.

THEREFORE, IT IS ORDERED under 49 U.S.C. §5123, and pursuant to the settlement agreement, thatyou are assessed a civilpenalty inthe amount of$15,000.00. This Order constitutes a finding bythe FAA ofthe facts and regulatory violations contained herein. The Order Assessing Civil Penalty and MTA's payment ofthe civil penalty do not constitute orimply admissions by MTAthat it committedthe violations found bythe FAA, or that MTA agrees with the facts averred to bythe FAA.
In order to satisfy payment ofthe civil penalty, you are hereby directed to make a payment of $15,000.00, by certified check ormoney order, on orbefore June 20, 2012 payableto the Federal AviationAdministration, to the Accounts Receivable Branch (AMZ-310-ACE/ AGL), P.O. Box 25082, Oklahoma City, OK 73125.
Inthe alternative, you may pay your civil penalty with a credit card, or a bank account debit, overthe Internet. To pay electronically, visit the web site at https://v,·,vw.pay.gov. Under the Search Public Forms option, type in "FGL-FINEl." Click on "Civil Penalty PaymentsGreat Lakes Region". You mustthen complete the requested information and click "Continue." You will thenbe directed to enter your credit card orbank account debit information. To use the bank account debit, you will need your bankrouting number, account number, and check number. Delinquent debts maybe reported to consumerreporting agencies or commercial credit bureaus, whichwould adversely affect your credit rating. Nonpayment ofthis debt may ultimatelyresult in a referral to a collection agency, the Internal Revenue Service, orto the United States Department ofJustice for enforced collection.

By:

Cc: Mr. Michael Dworkin Michael L. 

### Dworkin and Associates 465 California St., Suite 210 San Francisco, CA 94104

AGL-700 

### Jeffrey A. 

### Klang Regional Counsel

Kate Barber Attomey

3