u.s. DEPARTMENT OF TRANSPORTATIOB E c F I \I~ 0 

In the matter of: 

Premier Nail Source, Inc. 

OFFICE OF HEARINGS NOV 1 4 2016 

WASHINGTON, D.C. 

) 

) 

) 

) 

HEARING DOCKET 

Docket No. 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 summary judgment in this matter. No genuine issue of 

material fact exists to be determined, and the FAA is entitled to judgment as a matter of law. As 

grounds for the motion, the FAA states the following: 

STATEMENT OF THE CASE 

On February 22, 106, the FAA issued a Final Notice of Proposed 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 of June 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 of the 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 summary judgment, 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 of sanction, but it is taken 

into account through the non-application of this enhanced penalty range, rather than through the 

application of a mitigating factor. 1 

Accordingly, the Maximum weight resulting from the presence of Category A hazardous 

materials remains appropriate in this case. Therefore, for whatever range is identified in the 

matrix, a penalty in the upper third of that range will be appropriate. See National Power Corp., 

FAA Order 2016-3 at 14 (dividing the penalty ranges m thirds for 

Minimum/Moderate/Maximum penalties). 

The hazardous materials sanction matrix is identified as Figure C-1, on page C-12 and C13 of Appendix C of FAA order 2150.3B. This matrix broadly identifies the appropriate penalty 

ranges for hazardous materials violations, depending on the nature of the Respondent and the 

nature of the violations. Higher penalties are imposed on businesses that regularly transport 

hazardous materials than on business that do not, or on individuals. Higher penalties are imposed 

for shipments that present more striking safety hazards because they are undeclared, or because 

they involve hazardous materials that are not permitted 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 of the 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 

1 Additionally, knowing or willful violations ofthe Hazardous Materials Regulations may be subject to 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 in this 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 that the Judge grant Summary Judgment and 

affirm the Amended Complaint in its entirety. 

r-J\ 

Respectfully submitted this t'f day of November, 2016. 

CHRISTOPHER d~ R. STEVENSON 

Attorney 

FAA Office of the Chief Counsel 

Enforcement Division 

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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 of this shipment. 

2. I have and will provide all documents that pertain to the hazardous materials training 

for all members of our warehouse team that touch any orders. To show that we are 

properly trained on handling of such 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 day training 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 our facility. I will provide the matieral that was used other than the lata book which 

has the lists of packing groups and the names of the materials lists. 

5. I am disputing the fact that we are properly trained . 

6. I do not believe that this penalty is justified based on the fact that we are a fully 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 of all the training 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 that there should not be a penlty for not being trained 

10. Not asserting the inability to pay 

11. Daniel Kerzner is the George Menendez helped in all papers and answers 

12. No denial of requests of Admission 

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 admit that we are a business that regularly offers, accepts, or transports 

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 determined that the unregulated transportation of hazardous 

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

that threat in 1974 by enacting the Hazardous Materials Transportation Act (HMTA). By 1990, 

Congress determined that effective enforcement of the HMTA required more severe action, and 

enacted the Hazardous Materials Transportation Uniform Safety Act of 1990, Public Law No. 

101-615, 1990 U.S. Code Congress. & Admin. News 104 Stat. 4605. The primary effect of this 

1990 revision of the HMTA was to raise the maximum civil penalty for violation of any 

regulation enacted under the HMTA to $25,000, and, for the first time, to require a $250 

minimum penalty for any such violation. 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. In the 1994 recodification, Congress 

specifically stated that the recodification created no substantive change to the earlier form of the 

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 10,2005. That legislation, among other things, modified the limitations on civil 

penalties that may be assessed for violations of the hazardous materials statute and regulations. 

b. Civil Penalties. The Federal Civil Penalties Inflation Adjustment Act of 1990, 28 U.S.C. 

§ 2461 (note), as amended by the Debt Collection 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 maintain the deterrent effect of monetary civil penalties and promote 

compliance with the law. Under the statute, the adjusted civil penalty maximums carmot be 

applied unless they are implemented by regulation. The adjusted civil penalties are listed in part 

13 ofTitle 14 of the CFR, subpart H. 

Pursuant to SAFETEA- L U, the maximum civil penalty that may be assessed for a violation 

of the 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 if the violation results in death, serious illness, or severe 

injury to any person, or substantial destruction of property. The minimum civil penalty that may 

be assessed for a training violation is $450. 

c. Enforcement Responsibility. Within the Department of Transportation, the Pipeline & 

Hazardous Materials Safety Programs Administration (PHMSA), created by the Norman Y. 

Mineta Research and Special Programs Improvement Act in 2004, adopts the Hazardous 

Materials Regulations (HMR), which govern the transportation of hazardous materials (hazmat). 

The FAA, under delegated authority, enforces the Federal hazardous material transportation law 

and the HMR, with particular emphasis on shipment ofhazmat by air. 49 C.P.R. § 1.47G). 

C-1 ~GOVERNMENT j EXHIBIT 

i 6 

:1 
10/01/07 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 of part 175 of the 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 Committed by Small Business Entity. To meet statistics-gathering requirements, 

the investigating special agent must determine whether the alleged violator qualifies as a small 

business concern under the Small Business Regulatory Enforcement Fairness Act of 1996 

(SBREFA). For an extensive discussion of how to make that determination, see Part OneAbbreviations and Definitions, in Appendix B of this order. If investigating 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 of investigation. See sample letter 

of investigation in Figure A-1 of Appendix A. Because violations of Title 49 of the U.S. Code 

and the HMR may be committed by entities in addition to those normally regulated by the FAA, 

the investigating agent may need to refer to the SBA' s complete table of size standards to find 

the correct size limit for an alleged violator. 

a. Enforcement Policy under SBREFA. Chapter 7, Paragraph 10, of this order generally 

outlines the FAA's enforcement policy under SBREFA. In determining whether and how to 

provide for the reduction or waiver of civil 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 subject to multiple 

enforcement actions by the agency, a violation involving willful or criminal conduct, a violation 

that results when there has not been a good faith attempt to comply with the requirements, and a 

violation that poses a serious health, safety or environmental threat. With respect to air carriers 

and other aircraft operators, the FAA takes into consideration company size in determining the 

appropriate amount of civil penalty. See the Matrix, Figure C-1, below. 

b. Information Sheet for Complaints by Small Business Concerns. Each FAA employee 

who conducts an inspection of a 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 or comments regarding unfair FAA regulatory enforcement to the 

National Ombudsman. FAA special agents may obtain a copy of the information sheet for 

hazardous materials inspections and additional guidance for distributing it from the ASH 

regional offices. 

c. Reduction or Waiver of Penalty. The FAA does not reduce or waive the penalty of an 

alleged violator solely because it is a small business entity. This is because a violation of the 

hazmat statutes or HMR typically poses a serious health, safety, or environmental threat (and 

may involve one of the other reasons for exclusion). Accordingly, the FAA will usually reduce 

C-3 
10/01/07 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 Counsel Review. 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 under the Hazardous Materials 

Sanction Guidance. The basis for deviating from the recommended sanction, if any, should be 

explained to, and discussed wHh, the investigating special agent. Final determination of the 

sanction amount proposed in the notice of proposed civil penalty is ordinarily a product of joint 

decisionmaking and approval of the investigating agent and the legal office. 

8. Federal Aviation Administration Hazardous Materials Sanction Guidance. This 

Sanction Guidance is divided into three sections: case analysis; utilization ofthe Sanction 

Guidance Matrix (Matrix); and consideration of other statutory factors. The Sanction Guidance 

Matrix is contained in Figure C-1 and the Risk Categories are contained in Figure C-2. 

a. Case Analysis (Evaluation of Statutory Assessment Factors). 

( 1) This section contains a series of questions 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 of proposed civil 

penalty. The questions review factors involving the nature, circumstances, extent and gravity of 

the violation, the violator's degree of culpability, and the violator's history of prior violations. 

Some of these factors are already considered to some extent within the various categories of the 

Sanction Guidance Matrix. The questions in this section provide additional consideration of the 

statutory factors and examine the existence of aggravating and mitigating factors in a case. 

(2) The agent answers each question in Section I and determines if a relative weight of 

minimum, moderate, or maximum should be assigned based on the response 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 of the 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 a yes 

response. Questions receiving a no response do not affect the weighting of the case and are not 

considered. For example, that the violation did not result 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 

of the questions will be no and the only relevant weighting factor in this section will be the risk 

category of the material identified in Question (l)(a). 

(3) In determining the final aggregate weight of the case, the responses to each of the 

questions do not have to be equally considered. Determination of whether the overall case 

should have a minimum, moderate, or maximum weight cannot be determined with mathematical 

certainty. Generally, if the answer to a question demonstrates that the factor at issue represents a 

more significant aspect of the case, greater consideration is given to that factor. The final 

aggregate weight is based on the totality of the facts and circumstances of the case. Once 

C-5 
10/01/07 2150.38 

of proposed civil penalty. However, for purposes of determining the appropriate sanction, each 

separate shipment with separate air waybill or shipping papers, separate destination, and/or 

other evidence establishing it as a separate shipment, is ordinarily considered as a separate 

incident for purposes of applying the sanction guidance analysis. It is suggested that the 

separate shipments be treated as individual counts in the EIR and the notice of proposed civil 

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 or Maximum weight. 

Guidance Note: The fact that no damage occurred as a result of the shipment is not a mitigating 

factor. However, damage or harm may aggravate the nature, circumstances, extent, and gravity 

of the violation. Depending on the degree of damage caused by the shipment and/or the 

existence of other aggravating factors, departure from the ranges may be justified It is 

important to note that death, serious illness, or severe injury to any person, or substantial 

destruction of property, warrants additional consideration of aggravation of the total penalty. 

c. Violator's Degree of Culpability. The Matrix, Figure C-1, considers the relative 

culpability of the violator. This section of the analysis further evaluates the degree of culpability 

of the violator. 

(1) Is the violator the manufacturer of the hazardous material? If yes, consider a 

Maximum weight. 

Guidance Note: A manufacturer of a hazardous material is expected to have complete 

knowledge of the nature of the hazardous material it manufactures or uses; thus, a high degree 

of culpability will ordinarily be imputed to it. 

(2) Did someone other than the violator prepare the shipment for transportation? If yes, 

consider a Minimum or Moderate weight. 

Guidance Note: Facts supporting an affirmative answer to this question may be cause to 

mitigate culpability and/or pursue a separate eriforcement action against other responsible 

parties who handled the shipment. A shipper that reships materials received from another 

person in the same packaging is independently responsible for ensuring the shipment complies 

with the HMR. Nevertheless, the reshipper is generally considered to have a lesser degree of 

culpability for compliance of the package as received However, if the reshipper unpacks and/or 

repackages the shipment, the reshipper remains as culpable as the original shipper and 

generally is not accorded mitigation under this weighting factor. (For purposes of this section, a 

"reshipper" refers to a person, 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-7 
10/01/07 2150.38 

Guidance Example: A case involving a hazardous material in the lowest risk category may be 

evaluated to have a maximum weight because of the large quantity shipped or the damage 

resulting from the shipment. 

f. Utilize the Matrix (Figure C-1 ). 

(1) The sanction ranges under the offeror and offense categories of the Sanction 

Guidance Matrix reflect the relative culpability of the violator and the nature, circumstances, 

extent, and gravity of cases for the majority of violations. Consideration of these particular 

statutory factors under the Federal hazardous material transportation law is built into the Matrix. 

Further analysis of the statutory factors is required to determine the appropriate sanction within 

the ranges established under the Matrix. This analysis is performed in subparagraphs 8.a.-e. 

After determining the final aggregate weight of the case under subparagraphs 8.a.-e., that weight 

is applied to the appropriate Matrix range to identify the recommended sanction amount for each 

of the relevant violation groups and for the case as a whole. Although the notice of proposed 

civil penalty may cite numerous violations of a particular part or subpart of the HMR, unless 

upward departure is justified, 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 of entity and the nature of the 

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 of the sanction 

range for each relevant violation group. The recommended civil penalty at this stage is the sum 

ofthe sanctions for each of the applicable violation groups. A sanction should not be assessed 

for a violation group if there have been no violations of that part or subpart of the HMR. The 

sanction amount for each violation group need not be identical but ordinarily is within the 

portion of the particular sanction range that represents the overall weight of the case. 

(3) Departure from the Matrix ranges. The ranges of penalties specified in the Matrix 

(e.g., $250-$550) are intended to cover the majority of cases involving violations of the HMR. 

The facts and circwnstances of a particular case, however, may justify either an upward or 

downward departure from the specified Matrix ranges. This sanction guidance anticipates 

departure from the specified Matrix ranges when justified. A case involving violations in which 

the nature, circumstances, extent, and gravity of the incident are particularly severe or egregious, 

may justify upward departure from the specified ranges. If the investigating agent believes, 

based upon the facts of a case, that a penalty should exceed the specified Matrix ranges, the 

agent should consult with legal counsel before further processing of the 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 factors justify a downward departure from the 

C-9 
10/01/07 2150.38 

determine if more current information exists concerning the financial condition of a respondent 

and if that information substantially differs from the information available at the time of 

preparation of the EIR. If there 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 of the notice of proposed civil penalty. This is a 

preliminary consideration of a company's ability to pay. As such, pre-notice adjustment of a 

recommended civil penalty does not preclude further consideration of a respondent's fmancial 

claims after issuance of the 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 of penalty 

reduction are the extent and timing of the corrective action. In other words, mitigation is 

determined on the basis of how much corrective action was taken and how quickly the action 

was taken. Systemic change intended to 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 of investigation or the notice of proposed civil penalty. 

Mitigation of a recommended civil penalty based upon corrective action should be 

referenced in the Notice of Proposed Civil Penalty so that the respondent is on notice that credit 

already has been given for such action. 

(2) Status of violator as a small business entity or concern. See subparagraphs 5.a.-b. 

above. 

C-11 
10/01/07 

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. 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 

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, 

All Aircraft 

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. Business Entity 

that uses or handles 

A. Individual* B. Business Entity hazmat in the 

course of business 

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

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

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

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

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

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

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

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

250-1,100 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 I 0,000-32,500 

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 I 0,000-32,500 

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 

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 

I 0,000-32,500 

I 0,000-32,500 

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 

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10/01/07 2150.38 

9. Definitions: Note that these defmitions are only for the purpose of applying the sanction 

guidance in this appendix. 

a. Air Carrier and Other Aircraft Operator Groups (I, II, III, IV) - Air carriers and 

other aircraft operators are divided into two categories for purposes of determining 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 of similar size, e.g., part 129 Foreign Air Carriers, part 

125 Operators, and part 91 Operators. 

(1) Group I is comprised of air carriers with annual operating revenue of$100,000,000 

or more. Other aircraft operators with armual operating revenue of $100,000,000 or more are 

included in Group I for hazmat sanction guidance purposes. 

(2) Group II is comprised of air carriers and other commercial operators that have an 

annual operating revenue of less than $100,000,000, and have 50 or more pilots and operate 25 

or more aircraft. Other aircraft operators of the same size are included in Group II for hazmat 

sanction guidance purposes. 

(3) Group III is comprised of air 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 of the same size are included in Group III for hazmat sanction guidance purposes. 

( 4) Group IV is comprised of all other air carriers and commercial operators not meeting 

the criteria for Groups I, II, or III. Other aircraft operators of the 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 any type of commercial entity. An individual who offers a hazmat 

shipment in air transportation in the course of his or her self-owned business falls into this 

category. It includes 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 of an individual (as defined below). 

c. Business Entity that Regularly Offers, Accepts, or Transports Hazardous Materials 

in the Course of Its 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 of the hazmat is infrequent or limited. This category includes 

manufacturer or distributor ofhazmat and a freight forwarder. 

d. Business Entity that Uses, Handles Hazmat in the Course of Its 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 of a nonhazmat product that uses hazmat in the manufacturing process could fall into this category. It 

must be established that the company ordinarily does not offer the hazmat it utilizes for 

transportation, and the 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 

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10/01/07 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. 

(1) If the undeclared shipment is offered for transportation on or transported on a passenger 

aircraft, the quantity of hazardous material must be within the limitation, per package, for 

transportation on passenger aircraft, as established in the 49 C.F.R. § 172.101 Table. 

(2) If the undeclared shipment is offered for transportation on a cargo aircraft, but not 

transported, the quantity of hazardous material must be within the limitation, per package, for 

transportation on passenger aircraft, as established in the 49 C.F.R. § 172.101 Table. 

(3) If the undeclared shipment is offered for transportation on and transported on a cargo 

aircraft, the quantity of hazardous material must be within the limitation, per package, for 

transportation on cargo aircraft, as established in the 49 C.F.R. § 172.101 Table. 

All other undeclared shipments fit within the definitions for Undeclared Shipment Hazmat 

Exceeds Quantity Limitsfor ... Aircraft, or Undeclared Shipment Hazmat Forbidden 

on ... Aircraft, see above. 

C-16