# u.s. DEPARTMENT OF TRANSPORTATIOB

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# cFI

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In the matter of: PremierNail Source, Inc. OFFICE OF HEARINGS 

## NOV 

# 142016 WASHINGTON, D.C.


### ) ) ) ) 

## HEARING DOCKET
DocketNo. FAA-2016-4266 Case No. 2015S0700062

MOTION FOR SUMMARY JUDGMENT 

### Pursuant to 14 C.F.R. § 

### 13.218(±)(5), and Rule 56(c) of the Federal Rules of Civil Procedure, the FAA hereby moves for summaryjudgment in this matter. No genuine issue of material fact exists to be determined, and the FAA is entitled tojudgment as a matter oflaw. As grounds for the motion, the FAA states the following: STATEMENT OF THE CASE On February 22, 106, the FAA issued a Final Notice ofProposed Civil Penalty against Respondent. Respondent timely appealed, and the FAA filed a Complaint. The Complaint charged that, on November 28, 2014, Respondent improperly offered an undeclared shipment of hazardous materials for transportation by air. The Complaint alleged numerous violations relating to the packaging, marking, labeling, and shipping papers for the shipment. The Complaint also alleged that Respondent had not properly trained its agents and employees in hazardous materials shipping. Respondent filed an Answer, denying the training violations and disputing whether the sanction proposed was appropriate, but otherwise admitting the allegations in the Complaint. 

### See Complaint, Answer, Transcript ofJune 9, 2016 Conference Call at 28. The FAA later filed an Amended Complaint that withdrew the allegations pertaining to training, and removed that portion of the proposed penalty attributable to the alleged training violations.

1

### Accordingly, at this time the only issue is whether the proposed $57,500 penalty for the admitted violations is appropriate. STATEMENT OF THE FACTS As noted above, the facts in this case are identified in the Amended Complaint and are undisputed. As described in the Amended Complaint, Respondent offered to Federal Express a one-piece shipment containing hazardous materials for transportation by air. Amended Complaint '1[ 

### 1. The shipment contained six 2-ounce bottles of CND Shellac Nourishing Remover, a hazardous material in Hazard Class 3 (Flammable Liquids), Packaging Group II. Id. '1['1[ 

### 5(a), 6. The shipment also contained six 0.5-ounce bottles of Develop 10 Program, a hazardous material in Hazard Class 3 (Flammable Liquids), Packaging Group II. !d. '1['1[ 

### 5(b), 7. No Shipper's Certification or Declaration of Dangerous Goods was included with the shipment. !d. '1[ 

### 3, 10. There were no shipping papers containing a description ofthe hazardous materials contained in the shipment. !d. '1[ 

### 3, 9. The outer container of the shipment was not marked and labeled as required. !d. '1[ 

### 11. No emergency response information was made available with the shipment. !d. '1[ 

### 12-13. The hazardous materials shipment was not properly packaged. !d. '1[ 

### 8, 14. For purposes of summaryjudgment, the FAA does not dispute Respondent's contention that it did not willfully violate the hazardous materials regulations

- that, although Respondent's shipment was knowing, it was the result of human error, rather than willful intent. It 

### is undisputed that Respondent is a business that regularly offers, accepts, or transports hazardous materials. Exhibit A at Request to Admit '1[ 

### 3. It

### is undisputed that the hazardous materials in this

case fall within Category A, as that term is used in the FAA's sanction guidance. !d. '1[ 

### 1.



### 2

### m the shipment, with the three Categories (A, B, C) corresponding to the three weights (Maximum, Moderate, Minimum). !d. 

### at C-6, It

### is undisputed that the hazardous materials in this

case were Hazard Class 3 (flammable liquids), Packaging Group II, and it is undisputed that such hazardous materials are Category A. 

### !d. 

### at C-6, C-16, Amended Complaint ,-r 5-7, Answer, Exhibit A at Requests to Admit ,-r 1. Where Category A hazardous materials are involved, a Maximum weight is assigned. FAA Order 2150.3B <.t C-6. In this case, other factors present do not alter this assignment of weight. There is no aggravation based on quantity of hazardous materials. See 

### FAA Order 2150.3B at C-6 (aggravating factor for exceeding quantity limitations). There is no aggravation for causing damage to persons or property. !d.

### at C-7 (aggravating factor for damage or harm to persons or property, or interference with commerce). There is no aggravation for being the manufacturer of the products. 

### !d. at C-7. There is no mitigation for some person other than the violator preparing the shipment. !d. 

### at C-7; Exhibit A at Request to Admit ,-r 2 (Respondent personally prepared the shipment). The violator did not rely on incorrect information from another source. FAA Order 2150.3B at C-7; see also 

### Answer, Part III, ,-r 3 (Respondent asserts a clerical error caused the violation, but does not assert any reliance on incorrect information); Exhibit A ,-r,-r 6, 9 (discussing Respondent's reasons for disputing the penalty, with no reference to reliance on incorrect information). There is no aggravation for a previous history of hazardous materials violations. FAA Order 2150.3B at C-8. No other mitigating factors have been identified. See 

### id.

### at C-8 (allowing for mitigation or aggravation based on other factors). It 

### may be worth noting that the fact that violations were unintentional (the result of a mistake), rather than deliberate, is not 

### a mitigating factor in the FAA's sanction determinations. Rather, it is presumed that a violation is unintentional. Where a violation is deliberate or

4

### intentional, this is applied later 

### in the process, not as a simple aggravated factor, but 

### in the form of an increased penalty range. See 

### Appendix C at C-12, C-13. The unintentionality of Respondent's violations is taken into account by the FAA's selection ofsanction, but it is taken into account through the non-application ofthis enhanced penalty range, rather than through the application ofa mitigating factor. 1 

### Accordingly, the Maximum weight resulting from the presence ofCategory A hazardous materials remains appropriate in this case. Therefore, for whatever range is identified in the matrix, apenalty in the upper third ofthat range will be appropriate. See National Power Corp., 

### FAA Order 2016-3 at 14 (dividing the penalty ranges m thirds for Minimum/Moderate/Maximumpenalties). The hazardous materials sanction matrix is identified as Figure C-1, on page C-12 and C13 ofAppendix C ofFAA order 2150.3B. This matrix broadly identifies the appropriate penalty ranges for hazardous materials violations, depending on the nature ofthe Respondent and the nature of the violations. Higher penalties are imposed on businesses that regularly transport hazardous materials than onbusiness that do not, or onindividuals. Higher penalties are imposed for shipments that present more striking safety hazards because they are undeclared, or because they involve hazardous materials that are notpermitted at all on aircraft. In this case, the violations fall within section D-II on the matrix. As Respondent has admitted, it is a business that regularly offers, accepts, or transports hazardous materials. See 

### Exhibit A at Request to Admit #3. This places it in colunm D ofthe matrix, the category of violator generally subject to the most severe sanctions. See 

### FAA Order 2150.3B at C-12. The shipment was undeclared, but it was within quantity limitations, so the shipment falls within row

1Additionally, knowing orwillful violations oftheHazardousMaterials Regulations maybe subjectto criminal penalties. See 49 U.S.C. §5124.


### 5

### providing for a higher penalty range for such a business. It is undisputed that the undeclared shipment involved inthis case was within quantity limits, with FAA sanction guidance providing for a lower penalty range for such an undeclared shipment. These driving factors produce a penalty range of approximately $10,000 to $13,000 per category, with five categories of violation (shipping papers, marking, labeling, packaging, and emergency response). The FAA selected sanction of $57,500 is consistent with its sanction guidance, and appropriate in the circumstances.

WHEREFORE, the FAA respectfully requests thatthe Judge grant SummaryJudgment and affirm the Amended Complaint in its entirety. 

## r-J\ Respectfully submitted this 

# t'f day ofNovember, 2016.



# d~ CHRISTOPHER R. 

### STEVENSON Attorney FAA Office ofthe ChiefCounsel Enforcement Division

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**.SCLi~Lit?,'·; ~'·i**  , 1. Daniel Kerzner- Operations Manager and oversee all operations on w'arehouse including all international shipments. Has first hand knowledge ofthis shipment. Jorge Menendez- Trainer for all hazardous materials handling within premier nail source. No first hand knowledge ofthis shipment. 2. I have and will provide all documents that pertain to the hazardous materials training for all members ofourwarehouse team that touch any orders. To show that we are properly trained on handling ofsuch material. 3. Daniel Kerzner- Helped package and printed labels for this said package. 4. Daniel Kerzner -I have proved previously the certifaction that was from Aug. 2014 through Aug 2016 and mr. Menedez has provided the 2 daytraining class at our location for me. I am approved to ship by Faa and the doc both and have been signed off by both at ourfacility. I will provide the matieral that was used otherthan the lata book which has the lists of packing groups and the names ofthe materials lists. 5. I am disputingthe fact that we are properly trained

. 6. I do not believe that this penalty is justified based on the fact that we are afully trained facility and just made a shipping mistake to the wrong address

.this shipment was not packed to go anywhere but Miami. 7. Daniel Kerzner- First hand knowledge ofthe packing ofthis shipment and the details. Jorge Menendez- First hand knowledge ofall thetraining for all employees at premier nail source 8. No expert witnesses 9. I assert that we are fully trained and everyone that handled this shipment is fully trained to ship hazardous shipments and thatthere should not be a penlty for not being trained 10. Not asserting the inabilityto pay 11. Daniel Kerzner is the George Menendez helped in all papers and answers 12. No denial of requests ofAdmission 

## Request to admit
1 I admit The hazardous materials shipped in this case are in Category A. 2 I admit I perpared this shipment 3 I admitthat we are a business that regularly offers, accepts, ortransports Hazardous materials with correct paperwork and labeling.



### GOVERNMENT EXHIBIT 

# 4

### 10/01/07

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

### 2150.38

a. Legislation. Congress determinedthatthe unregulated transportation ofhazardous materials constitutes a threatto 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 enacted the Hazardous Materials TransportationUniform Safety Act of 1990, Public LawNo. 101-615, 1990 U.S. Code Congress. & Admin. News 104 Stat. 4605. Theprimary effect ofthis 1990 revision ofthe HMTAwasto raise the maximum civil penalty for violation ofany regulation enacted under the HMTAto $25,000, and, for the first time, to require a $250 minimum penalty for any such violation. The HMTA was recodified in 1994 and is now referred to as the "Federalhazardous materialtransportation 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 that the recodification created no substantive change to the earlier form ofthe statute. In2005, the Congress enacted and the President signedthe Safe, Accountable, Flexible, Efficient Transportation EquityAct: A Legacy for Users (SAFETEA- LU), PublicLaw 109-59, August 10,2005. That legislation, among other things, modifiedthe limitations on civil penalties thatmay be assessed for violations ofthe hazardous materials statute and regulations.
b. Civil Penalties. TheFederalCivil Penalties Inflation AdjustmentAct of 1990, 28 U.S.C. § 2461 (note), as amended by the Debt Collection Improvement Actof 1996, Public Law 104-134, April 26, 1996, provides a mechanism for adjustments for monetary civilpenalties for inflation in order to maintainthe deterrent effect ofmonetary civilpenalties and promote compliance with the law. Under the statute, the adjusted civil penaltymaximums carmot be applied unless they are implementedby regulation. The adjusted civil penalties are listed in part 13 ofTitle 14 ofthe CFR, subpart H. Pursuant

### to SAFETEA- LU, the maximum civil penalty that may be assessed for a violation ofthe Federalhazardous 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 any person, or substantial destruction ofproperty. Theminimum civil penaltythatmay be assessed for a training violation is $450.

c. Enforcement Responsibility. Within the Department ofTransportation, the Pipeline & Hazardous Materials Safety Programs Administration (PHMSA), created bythe Norman Y. Mineta Research and Special Programs Improvement Act in 2004, adopts theHazardous Materials Regulations (HMR), which govern the transportation ofhazardous materials (hazmat). TheFAA, under delegated authority, enforces the Federalhazardous material transportation law and the HMR, with particular emphasis on shipment ofhazmatby air. 49 C.P.R. 

### § 1.47G).

C-1 **~GOVERNMENT** 

# j EXHIBIT 

# i 

# 6 :110/01/07 2150.38

less than that provided inthe Matrix. In either situation, thebasis for the decision to go outside the ranges should be explained in detail. 

### 4. Part 175 Violations. Violations ofpart 175 ofthe HMR, whichestablishparticular 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 transportthem. Forthis reason, suchoperators may be liable for violationsboth as a business entity within the Hazardous Materials Sanction GuidanceMatrix, as well as for specific air carrier violations.



### 5. Violation Committed by Small Business Entity. Tomeet statistics-gathering requirements, the investigating special agentmust determine whetherthe alleged violator qualifies as a small business concern underthe Small BusinessRegulatory EnforcementFairnessAct of 1996 (SBREFA). For an extensive discussion ofhow to make that determination, see Part OneAbbreviations and Definitions, in AppendixB ofthis order. Ifinvestigating special agents are unable to obtain independently information to determine whether an alleged violator is a small business concern, theyrequest such information in the letter ofinvestigation. See sample letter ofinvestigation in Figure A-1 ofAppendix A. Because violations ofTitle 49 ofthe U.S. Code andthe HMR may be committedby entities in additionto those normally regulatedbythe FAA, the investigating agent may need to referto the SBA's completetable ofsize standards to find the correct size limit for an alleged violator.



### a. Enforcement Policy under SBREFA. Chapter 7, Paragraph 10, ofthis order generally outlines the FAA's enforcementpolicyunder SBREFA. In determining whether and how to provide for the reduction or waiver ofcivil penalties for statutory orregulatory violations by small entities, the FAA'spolicy may contain certain conditions. Those conditions may allow for excluding from such a reduction or waiver: a small entity thathas been subjectto multiple enforcement actions bythe agency, a violation involving willful orcriminal conduct, a violation that results whenthere has notbeen a good faith attemptto comply withtherequirements, 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 regulatedbythe FAAprovides the small business concernwith an information sheet. The information sheet informs that entity that it may submit complaints or comments regarding unfair FAAregulatory enforcementto 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. TheFAA does notreduce or waivethe penalty ofan alleged violator solely because it is a smallbusiness entity. This is because a violation ofthe hazmat statutes or HMRtypically poses a serious health, safety, or environmentalthreat (and may involve oneofthe otherreasons for exclusion). Accordingly, the FAAwill usually reduce

C-310/01/07 2150.3B 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 EIRis forwarded to legal counsel for enforcement action, counsel will give appropriate considerationto the recommended sanction. FAA legal counsel will also review the factors, analysis, and determinations under the Hazardous Materials Sanction Guidance. The basis for deviating from the recommended sanction, ifany, should be explained to, and discussedwHh, the investigating special agent. Final determination ofthe sanction amount proposed in the notice ofproposed civil penalty is ordinarily a product of joint decisionmaking and approval ofthe investigating agent and the legal office.

8. Federal Aviation AdministrationHazardousMaterials 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 and the Risk Categories are contained inFigure C-2.

a. CaseAnalysis (Evaluation ofStatutoryAssessmentFactors). (1) This section contains a series ofquestions to assist a special agent in evaluating a case and recommending a sanction. Italso 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, and the violator'shistory ofprior violations. Some ofthese factors are already consideredto 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, ormaximum should be assigned based ontheresponse to the question. With the exception of

### Question (l)(a), not all questions will necessarily apply to a given fact situation. 

### Question (l)(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 questionreceives a

### yes response. Questions receiving a 

### no response do not affectthe 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 relevantweighting factor inthis section will bethe risk category ofthe material identified in 

### Question (l)(a). (3) In determining the final aggregate weight ofthe case, theresponses to each ofthe questions do nothave to be equally considered. Determination ofwhether the overall case should have a minimum, moderate, or maximum weight cannot be determinedwith mathematical certainty. Generally, ifthe answer to a question demonstrates that the factor at issue represents a more significant aspect ofthe case, greater consideration is given tothat factor. The final aggregate weight is based on the totality ofthe facts and circumstances ofthe case. Once

C-510/01/07 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) Did the shipment cause some damage or harm to persons or property or interfere with commerce? If yes, consider a Moderate orMaximum weight. Guidance Note: Thefact that no damage occurredas a result of the shipment is nota mitigating factor. However, damage orharm mayaggravate the nature, circumstances, extent, andgravity of the violation. Dependingon the degree of damage causedby the shipmentand/or the existence of other aggravating factors, 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 culpabilitywill ordinarily be imputedto it. (2) Did someone other than the violator prepare the shipment for transportation? Ifyes, consider aMinimum orModerate weight. GuidanceNote: Facts supportingan affirmative answer to this question may be cause to mitigate culpability and/orpursue a separate eriforcementaction against other responsible parties who handledthe shipment. A shipper that reships materials received from another person in the samepackaging is independently responsiblefor 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 original shipper 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) Didthe violator reasonably rely on incorrect information from another source? If yes, consider aMinimum weight.



### C-710/01/07 2150.38

Guidance Example: A case involving a 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). (1) 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 sanction within the ranges established underthe 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 identifythe recommended sanction amount for each ofthe relevant violation groups and for the case as a whole. Although the notice ofproposed civil penalty maycite numerous violations ofa particularpart 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.

• Applythe conclusion reached inthe 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 at this stage is the sum ofthe sanctions for each ofthe applicable violation groups. A sanction should notbe assessed for a violation group ifthere have been no violations ofthatpart or subpart ofthe HMR. The sanction amount for each violation group need not be identical but ordinarily is withinthe 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 circwnstances ofa particular case, however, mayjustify either an upward or downward departure from the specified Matrix ranges. This sanction guidance anticipates departure from the specified Matrixranges 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 Matrixranges, the agent should consult with legal counsel before further processing ofthe EIR. (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
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 determiningthat 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 abilityto pay. As such, pre-notice adjustment ofa recommended civil penalty does notpreclude further consideration ofa respondent's fmancial claims after issuance ofthe notice. (2) Corrective Action.

• The most common othermatterthatthe FAAtakes into consideration is corrective action. Corrective action that results in mitigation is remedial actionthat exceeds the minimum legal requirements. The primary factors in determiningthe appropriate amount ofpenalty reduction are the extent and timing ofthe corrective action. In other words, mitigation is determined on the basis ofhow much corrective action wastaken and how quickly the action was taken. Systemic change intended to prevent future violations should be given greater consideration. Similarly, corrective actionthat commences uponthe 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 orthe notice ofproposed civil penalty. Mitigation ofarecommended civil penalty based upon corrective action should be referenced in theNotice ofProposed Civil Penalty so that the respondent is on notice that credit already has been given for such action. (2) Status ofviolator as a small business entity or concern. See subparagraphs 5.a.-b. above.

C-1110/01/07

OFFENSE CATEGORIES
I. Declared Shinment I. Shipping Papers 2. Labels 3. Markings 4. Packaging 5. Training 6. Emerg. Response 7. Release into Environ. 8. Other II. Undeclared Shil!ment Within Hazmat Quanti!Y Limitations 1. ShippingPapers 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 I. 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 gty limits for, AllAircraft I. 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. BusinessEntity 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 2,500-11,000 250-1,100 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



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

CONSULT CONSULT CONSULT C-12 2150.38

D. Business Entity thatregularly offers, accepts, or transports hazmat 1,000-5,500 1,000-5,500 1,000-5,500 I,000-5,500 1,000-5,500 1,000-5,500 I,000-5,500 I,000-5,500

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

10,000-32,500 I0,000-32,500 I0,000-32,500 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

CONSULT

### 10/01/07 2150.38

9. Definitions: Note that these defmitions are only for the purpose ofapplying the sanction guidance in this 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. Forpurposes 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, and part 91 Operators. (1) Group I is comprised ofair carriers with annual operating revenue of$100,000,000 or more. Other aircraft operators with armual operatingrevenue of$100,000,000 or more are included in Group I for hazmat sanction guidance purposes. (2) Group 

### II is comprised ofair carriers and other commercial operators that have an annual operating revenue ofless than $100,000,000, and have 50 ormorepilots and operate 25 or more aircraft. Other aircraft operators ofthe same size are included in Group II for hazmat sanction guidance purposes. (3) Group III is comprised ofair carriers and other aircraft operators that do notmeet the criteria for Group II, thatis, 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 notmeeting the criteria for Groups I, II, or III. Other aircraft operators ofthe same size are included in Group TV for hazmat sanction guidance purposes. b. Business Entity. A business, corporation, partnership, Sub-S Corporation, sole proprietor, association, or anytype ofcommercial entity. An individual who offers a hazmat shipment in airtransportation in the course ofhis orher self-owned business falls into this category. Itincludes a non-profit organization and all other entities defined under the HMR's definition of person (49 

### C.P.R.§ 171.8), with the exception ofan individual (as defined below).



### c. BusinessEntity thatRegularly Offers, Accepts, orTransportsHazardous Materials in the Course ofIts Business. A business entity that offers hazmatwith some anticipated frequency, orpurports to do so, regularly offers hazmat. Forexample, a catalogue company that offers hazardous material to its customers would fall into this category, even though its actual sale ortransportation ofthe hazmat is infrequent or limited. This category includes manufacturer or distributor ofhazmat and a freight forwarder.
d. Business Entity thatUses, Handles Hazmatin the Course ofIts Business. This category encompasses the business that utilizes hazmat in its business but does not offer it for transportation on a regular basis, as described above. For example, a manufacturer ofa nonhazmat product that uses hazmat in the manufacturing process could fall into this category. It must be established thatthe company ordinarily does not offer the hazmat it utilizes for transportation, andthe shipment in this instance represents an isolated incident. This type of business is held to a higher standard than the business entity that has no regular involvement C-1410/01/07 2150.38

m. Undeclared Shipment Hazmat Forbidden on PassengerAircraft- Anundeclared shipmentthat is offered for transportation on ortransported on a passenger aircraft, and the hazardous material is forbidden 

### in airtransportation onpassenger aircraft (butnot in air transportation on cargo aircraft), as established in the 49 C.F.R. § 172.101 Table.

n. Undeclared ShipmentWithin Hazmat Quantity Limitations. (1) Ifthe undeclared shipment is offered for transportation on ortransported on a passenger aircraft, the quantity ofhazardous material mustbe within the limitation, perpackage, for transportation on passenger 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 bewithin the limitation, perpackage, for transportation on passenger aircraft, as established 

### inthe 49 C.F.R. § 172.101 Table. (3) Ifthe undeclared shipmentis offered for transportation on and transported on a cargo aircraft, the quantity ofhazardous material mustbe within the limitation, perpackage, for transportation on cargo aircraft, as established in the 49 C.F.R. § 172.101 Table. All other undeclared shipments fit withinthe definitions for UndeclaredShipmentHazmat Exceeds Quantity Limitsfor

...Aircraft, or UndeclaredShipmentHazmat Forbidden on...Aircraft, see above.

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