465 California Street Suite 210 

## •

San Francisco California 94104 

## •
(415) 421-2500 Fax (415) 421-2560

www.avialex.com law@avialex.com 

### Michael 

### L. Dworkin and Associates

# R E

# cE1 

# vED

. .! ' , Law Offices 

## JUN 2 8 2013 

## HEARING DOCKET

FEDEX: FederalAviationAdministration SOQ**Independe!!ce_Av~n11e** 

### S\fl/

_ Washington, DC 20591 Attn: HearingDocket Clerk, AGC-430 WilburWrightBuilding -Suite 2W1000

RE: MartinaireAviation, LLC FAA Case No. 2011SW700189 DMS No. FAA-2013-0040



### Dear HearingDocket Clerk: June 26, 

### 2013

Enclosedherewithfor filing arethe following documents:
MartinaireAviation, LLC's Response and Objectionsto Complainant's Motion for Decision andTransmittalofExhibits.

cc: The Honorable Richard C. Goodwin Administrative Law Judge

L 

### James Archier, Esq.

FAA,ASW-7 

### Very trulyyours,

Caitlin M. Miller Legal Assistant '·"

• J ',._..



### Michael 

### L. Dworkin (CA Bar# 64047) MICHAEL 

### L. DWORKIN and ASSOCIATES 465 California Street, Suite 210 SanFrancisco, CA 94104 Telephone: 415-421-2500 FAX: 415-421-2560 Email: law@avialex.com
Counsel for MARTINAIREAVIATION, LLC 

# RECEIVED JUN 2 82013 

# HEARING DOCKET

UNITED STATES OF AMERICA DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, D.C.



### Inthe Matter of:

MARTINAIRE AVIATION, LLC FAA CaseNo. 2011SW700189 DMS No. FAA-2013-0040
MARTINAIRE AVIATION, LLC'S RESPONSE AND OBJECTIONS TO COMPLAINANT'S MOTIONFOR DECISION


### Judge: The Honorable Richard C. Goodwin

TO THE DEPARTMENT OF TRANSPORTATION, THE HONORABLE RICHARD C. GOODWIN, ADMINISTRATIVE LAWJUDGE, AND TO THE ADMINISTRATOR, FEDERAL AVIATION ADMINISTRATION AND HIS ATTORNEYS OF RECORD: Respondent, MARTINAIRE AVIATION, LLC**(l!~reinafter** 

### "MARTINAIRE"), hereby responds and objects to Complainant'sMotion for
Decision as follows:

### INTRODUCTION
OnJune 17, 2013, Complainant filed and served a Motion for Decisioninthis

matter arguing that no genuine issues ofmaterial fact exist. MARTINAIRE disagrees and objects to Complainant's Motion as more specifically set forth below.

BACKGROUND
OnJanuary 15, 2013, Complainant filed its Complaint alleging that
MARTINAIRE violated Sections 175.33(a)(l), 175.33 (a)(l)(i) and 175.33 (a)(7) ofthe Department ofTransportation's Hazardous Materials Regulations ("HMR"), and seeking
the imposition ofa $206,550 civilpenalty. This civil penalty is unprecedented. Complainanthas alleged that during a comprehensive base inspection on July 8, 2011, it found twelveNotifications ofPilotin Command (NOPIC) to be incomplete or in

error. The NOPIC's are required by the above-cited HMR's, whichprovide:
§ 175.33 Notification ofpilot-in-COI!!ffiand. (a) Except as providedin §175.10, when a hazardous material subjectto the provisions ofthis subchapter is carried in an aircraft, the 

### operator of the aircraft must provide the pilot-in-command with accurate and legible written information as early as practicable before departure of the aircraft, which specifies at leastthe following: (1) The

### proper shipping name, hazard class and identification number ofthe material, including any remaining aboard from prior stops, as -specified in §172.1Ul-of this subchapter-or- the ICAO Technical

Instructions (IBR, see §171.7 ofthis subchapter). In the case ofClass 1 material, the compatibility group letter also must be shown. If a hazardous material is described by the proper shipping name, hazard class, and identificationnumber appearing in:

2 FAA CaseNo. 2011SW700189/FAA DocketNo. FAA-2013-0040 MARTINAIRE AVIATION, LLC'S RESPONSE AND OBJECTIONS TO ADMINISTRATOR'S MOTION FORDECISION(i) Section 172.101 ofthis subchapter, any additional description requirements provided in§§172.202 and 172.203 ofthis subchapter must also be shown inthe notification. (7) 

### The date oftheflight

....1 

### (emphasis added) OnFebruary 1, 2013, MARTINAIRE answeredthe Complaint admitting thatthe
NOPIC's for Flight 637 onJune 22, 2011 (Complaint, Par. 3 and 4), Flight 600 on June 6,
2011 (Complaint, Par. 5 and 6), Flight 682 onJune 6, 2011 (Complaint, Par. 7 and 8), Flight 806 onMay 26, 2011 (Complaint, Par. 9 and 10), Flight 666 on May 24, 2011(Complaint, Par. 11 and 12), Flight 601 onMay 19, 2011 (Complaint, Par. 13), Flight 700 onMay 14, 2011 (Complaint, Par. 14 and 15), Flight 688 onMay 13, 2011 (Complaint, Par. 16 and 17), Flight 637 onApril14, 2011 (Complaint, Par. 18, 19 and 20), Flight 685 on April12, 2011(Complaint, Par. 21 and 22), Flight 666 onApril1, 2011 (Complaint, Par. 23 and 24) contained errors?
Otherthan admitting thatthe twelve NOPIC's contained errors, MARTINAIRE
deniedthe allegations ofviolation ofthe cited HMR's and has asserted that a civil penalty inthe amount of$206,550.00 is excessive and unwarranted.

1As opposedto most large air carriers whichprepareNOPIC's and provide them to their flight crews, MARTINAIRE, as a small carrier, relies upon its pilots to prepare the NOPIC's. Essentially, the pilots prepare the notifications to themselves, based upon informationprovidedto them by UPS and DHL whenthe pilots accept a HazMat Shipment.

2 MARTINAIRE's admissions inits Answer are totally consistentwith its August 2, 2011 respon:se to the FAA's LetterofiJivestigation ("LOI"J(Complainant's Exhibit A). -As-

- - canbe seenby MARTINAIRE's letter, it "steppedup to the plate"-- fully investigating the FAA's findings, cooperating withtheFAA in the agency investigation, and implementing immediate and effective corrective action. Complainant does notdisagree withthe level ofcooperationthatMARTINAIRE provided to the FAA orthe swiftness, comprehensiveness and effectiveness ofMARTINAIRE's corrective actions. Please see transcripts ofdepositions ofComplainant's Paul Klimas ("Klimas Depo.") and Bryan Buchanan ("Buchanan Depo."), discussed ingreater detail, 

### infra. 3 FAA Case No. 2011SW700189/FAA DocketNo. FAA-2013-0040 MARTINAIRE AVIATION, LLC'S RESPONSE AND OBJECTIONS TO ADMINISTRATOR'S MOTION FORDECISION

### MARTINAIRE additionally asserted several affirmative defenses, specifically:
1. The sanction soughtby Complainant is unwarranted by the facts, safety
incommerce and the public interest and is not only excessive, but, far
exceeds policy, precedent and Complainant's own Sanction Guidance
Table. Further, the sanction is compounded, inviolation ofthe Complainant's own Sanction Guidance Table (First Affirmative Defense);
2. The Complainant's case, is unwarranted and withoutbasis or jurisdictionin law or fact (Second Affirmative Defense);
3. Any and all alleged discrepancies withthe requirements ofthe cited provisions of49 CFR 

### §175.33 are the product ofsimple human error by non-management employees ofMARTINAIRE inviolation of
MARTINAIRE's ownpolicies and procedures, and contrary to the training and guidance thatthe employees were provided by
MARTINAIRE and are inno way indicative ofMARTINAIRE's regulatory compliance disposition. The majority ofthe employees involved were MARTINAIRE pilots, who themselves prepared the NOPIC's, based upon information given to themby thirdparties. In

essence, the pilots were preparing the notifications to themselves. The employees involved, although adequately trained and qualified under
MARTINAIRE's then-FAA-approved training program, including but

not limited to MARTINAIRE's HAZMAT Training Program, have 4 FAA CaseNo. 2011SW700189/FAA DocketNo. FAA-2013-0040 MARTINAIRE AVIATION, LLC'S RESPONSE AND OBJECTIONS TO ADMINISTRATOR'S MOTION FORDECISION

### since received additional training. Moreover, MARTINAIRE, inan immediate response to the matters giving rise to this case, revised and updated its HAZMAT Training Program, revised its standardNOPIC
Formto be more "userfriendly", mandated additional training not only
for the personnel involved in these alleged incidents, but all flight operations, pilot and dispatch personnel, and implemented a program of
internal daily audits ofall NOPIC's. Subsequent internal audits have
shownthat compliance has been achieved (ThirdAffirmative Defense);
4. MARTINAIRE has proactively mitigated any and all damage suchthat
this action is unwarranted by policy orthe need for safety. Specifically,
MARTINAIRE counseled all pilots involved in incidents alleged in the Complaint; counseled all flight department and dispatchpersonnel in
the interests ofpreventing recurrence ofsuch incidents; revised its
HAZMAT Training Programto specifically address saidproblems and

ensure future compliance; revised the NOPIC Formto make itmore

user friendly; provided its personnel with additional HAZMA T training

so as to preventrecurrence ofsuch incidents, including: Hazardous
MaterialRecognition; Acceptance and Transport ofDangerous Goods;
and Proper Completion ofthe revisedNOPIC Form;3 

### and implemented

a program ofdaily audits ofall NOPIC's whichhave since shownthat compliance has been achieved (Fourth Affirmative Defense);

3 The ALJ in The Matter of Seven's Paint & Wallpaper Co., FAA OrderNo. 2001-6 (May 16, 2001) believed that training constituted a mitigating factor. 5 FAA CaseNo. 2011SW700189/FAA DocketNo. FAA-2013-0040 MARTINAIRE AVIATION, LLC'S RESPONSE AND OBJECTIONS TO ADMINISTRATOR'S MOTION FORDECISION

### 5. MAR TINAIRE has taken all necessary corrective actions to avoid repeated mishaps suchthatpenalties are redundant and will notresult
in any increase in safety (Fifth Affirmative Defense).
6.

. To the extentthat the Complainanthas relied upon FAA Order
2150.3B in determining the sanction inthis case, Complainant has compounded the alleged violations and sanctions in contrave,ntion of
said Order; Complainant seeks civil penalties 

### inexcess ofthose suggested in said Order's Appendix C, Figure C-1. In further
contravention ofsaid Order; Complainant has failed to take into
consideration the considerable corrective action that was immediately
thereafter takenby MARTINAIRE. Said Order, to the extentthat it

treats MARTINAIRE as a Group II carrier, is arbitrary, capricious and
unenforceable. Specifically, Figure C-1 ofthe Sanction Guidance
Table contained within said Order mandates that MAR TINAIRE be
treated as a Group II carrier and accordingly be subjectedto higher penalties than Group III or IV carriers. The sole reason for this is the
number ofaircraft that MARTINAIRE operates (39, including 24 owned and 15 leased aircraft)4

, 

### all ofwhichhave a maximum gross takeoffweight ofless than 12,500 pounds5

. 

### Howeverthe Order and
Table fail to account for the size ofthe aircraft ortheir payloads.

4 

### As ofthe date ofthis response, MARTINAIRE operates 38 aircraft.

5 

### MARTINAIRE'spresent fleet includes three aircraft (BE-1900's) whichhave a gross takeoffweight of 16,600 pounds. However, the entire MARTINAIRE fleet operates under FARPart 135. 6 FAA CaseNo. 2011SW700189/FAA DocketNo. FAA-2013-0040 MARTINAIRE AVIATION, LLC'S RESPONSE AND OBJECTIONS TO ADMINISTRATOR'S MOTION FORDECISION

### Under the Order andTable, a carrier operating fewer, but larger, aircraft, carrying far greaterpayloads, and far greater numbers of
hazardous materials shipments and generating substantially greater

revenues, couldbe treated as a smaller carrier and be subjectto lesser penalties (Sixth Affirmative Defense); and
7. Complainant's case is devoid ofany sense ofproportion, as during the period oftime covered bythe Complaint, MARTINAIRE carried some 500-600 HAZMAT shipments, all without incident; the NOPIC's
examinedby the FAA inspectionteam onJuly 8, 2011, which gives
rise to this case, covered a period of90 days. The total number of
NOPIC's examined by the FAA was 500-600. Ofthistotal number, only 12 were observedto have any discrepancies; as a small company (and a small business) that operates only small aircraft with less than
100 employees, the burden onMARTINAIRE caused by a $206,550.00 penalty would be insurmountable (SeventhAffirmative Defense).

ALL FACTS ARENOT UNDISPUTED Complainantpaints "undisputed facts" with a very, very broadbrush, asserting
thatthere are absolutely no undisputed facts and thatthis matter is ripe for decision affirming the imposition ofthe $206,550.00 civil penalty:

...there are no genuine issues ofmaterial fact in this case that need to be decided by a fact finder and motionfor decision shouldbe granted in favor ofthe

... FAA (Motion at2).

7 FAA Case No. 2011SW700189/FAA DocketNo. FAA-2013-0040 MARTINAIRE AVIATION,LLC'S RESPONSE AND OBJECTIONS TO ADMINISTRATOR'S MOTION FORDECISION

### While MARTINAIRE's has admitted the NOPIC errors alleged inParagraphs 3 through 24 ofthe Complaint, all allegations of(1) regulatory violation and (2) the appropriateness and size ofthe civil penalty have been specifically denied andremain at issue. Moreover, MARTINAIRE's affirmative defenses6

, 

### remain at issue, all ofwhich
constitute material facts and which compel against the granting ofa Motion for Decision disposing ofthis matter in its entirety.
While Complainant also cites certain facts to which there is no genuine dispute (Motion, at 2-3):
1. MARTINAIRE is a "small business entity", as thatterm is utilized in Order 2150.3B, and particularly Sanction Guidance Hazardous Materials Enforcement, Paragraph 5. MARTINAIRE agrees that it is a small business entity. Infact, as its Assistant ChiefPilottestified atdeposition,
MARTINAIRE operates only 38 aircraft (Deposition ofCory Smith ["Smith Depo."] at 30:9) (The SmithDepo. is submitted herewith as part ofthis Response and Objections as ExhibitA);
2. In2012, MARTINAIRE was assessed a civilpenalty in CaseNo.
2011GL700205 for transporting an undeclared hazardous material. While this
may betechnically true, the assessment and finding by the FAA occurred after
the instant case arose. Moreover, the act giving rise to this case was that ofa MARTINAIREpilot acting beyondthe course and scope ofhis employment,

6 It

### is very telling that while Complainanthas gone through great efforts inits Motion discussing the factual allegations ofParagraphs 3-24 ofits Complaint (which MARTINAIRE for the most parthas admitted), other than its conclusory assertion that the "

...seven affirmative defenses raise no issue offact" (Motion at 9), Complainant has given no substantivereasons or arguments in support ofthis assertion. 8 FAA Case No. 2011SW700189/FAA DocketNo. FAA-2013-0040 MARTINAIRE AVIATION, LLC'S RESPONSE AND OBJECTIONS TO ADMINISTRATOR'SMOTION FORDECISION

### contrary to the training that he was given and withoutthe knowledge or
consent ofMARTINAIRE.7 It

### is also highly noteworthy that the 2012 case did not involve NOPIC's orthe regulations and thatthe matter was settled
with Complainant's acknowledgmentthat the settlementby MARTINAIRE

was without admission ofliability, wrongdoing or violation. Please see Exhibit 7 to Klimas Depo. (Exhibit B hereto);
3. In2009, MARTINAIRE was assessed a civilpenalty in CaseNo.
2011GL700205 for a NOPIC-relatedviolation. While this may be technically
correct, the case arose as a result ofa pilot's noncompliance with
MARTINAIRE's policies and procedures, contrary to the training thathe had
been given and withouttheknowledge or consent ofMARTINAIRE. 8 It

### is
also noteworthy thatthe 2009 matter was settled with Complainant's acknowledgment that the settlementby MARTINAIRE was without
admission ofliability, wrongdoing or violation. Please see Exhibit 6 to Klimas Depo. (Exhibit C hereto). While relevant in considering the appropriateness ofthe proposed sanction, these "undisputed" facts are not material to the resolution ofthis matter in its entirety.

7 

### As MARTINAIRE's ChiefOperating Officertestified at deposition, a pilot, in preparation for his washing an airplane, purchased some "Purple Power" degreaser at a retail store and put it onboard his aircraft (Deposition ofAlan Rusinowitz ["Rusinowitz Depo."] at 33:25-38:15.

8 

### Mr. Rusinowitztestified to this prior incident inwhich a pilot apparently ran out of blankNOPIC forms, and rather thanremoving the exemplar form from the General Operating Manual carried onthe aircraft, made some handwrittennotes containing NOPIC-mandated information ona blank sheet ofpaper (RusinowitzDepo at 41:2- 42:16). 9 FAA Case No. 2011SW700189/FAA Docket No. FAA-2013-0040 MARTINAIRE AVIATION, LLC'S RESPONSE AND OBJECTIONS TO ADMINISTRATOR'S MOTION FORDECISION

### Complainant also considered two prior administrative actions (Warning Notice in
2008 and Letter ofWarning in2009 [Motion at 11]) in its determination ofsanction.
That Complainanthas cited and/or relied uponthese old administrative actions is truly astonishing as its own Compliance andEnforcementProgram, 

### Order 2150.3B, Chapter 5, Paragraph 4.a. clearly states "administrative actions are not adjudications. Neither a letter ofcorrectionnor a warning notice constitutes a finding ofviolation

....". Unappealable, nonlitigable administrative actions have absolutely no legal force or effect. They are tantamount to mere accusations.
Had Complainantconfined its Motion for Decisionto the allegations ofNOPIC

errors in Paragraphs 3 through 24 ofthe Complaint, MARTINAIRE would not oppose granting ofthe Motion for a partial decision confinedto those allegations. The NOPIC

errors discovered during the FAA's inspection, were fully acknowledged by
MARTINAIRE and served as the impetus for the substantial, comprehensive, swift and
immediate corrective actions that MARTINAIRE took, all to the satisfaction oftheFAA inspectionteam. 9 

### In fact, MARTINAIRE would welcome the Administrative LawJudge issuing a partial decision finding thatthe allegations contained in Paragraphs 3 through
24 ofthe Complaint are conclusive, and thus limiting the hearing to MARTINAIRE's
affirmative defenses and the issue ofsanction.

9 

### See Depositions ofMARTINAIRE's ChiefPilot, Michael Bates (ExhibitD hereto), and ChiefOperating Officer and Director ofOperations, Alan Rusinowitz (ExhibitE hereto), as well as the Depositions ofF AApersonnel, Paul Klimas (Complainant's investigating inspector)(Exhibit F hereto) and Bryan Buchanan (Exhibit G hereto), discussed in greater detail, infra. 10 FAA Case No. 2011SW700189/FAA DocketNo. FAA-2013-0040 MARTINAIRE AVIATION, LLC'SRESPONSE AND OBJECTIONS TO ADMINISTRATOR'S MOTION FORDECISION

### ARGUMENT 1. 

### Standardfor Decision

a. Rules-ofPractice
As set forth in The Matter of WilliamA. Luker, Jr., FAA DocketNo.
CP09SW0008 (2010), a motion for decision under 14 CFR Section 13.218(f)(5) is comparable to a motionfor summaryjudgmentunder Rule 56( c) ofthe Federal Rules of
Civil Procedure ("FRCP"). The standard for deciding a summaryjudgmentmotionunder
the FRCP is governedby the Supreme Court's opinion in Celotex Corp. v. Catrett, 477
U.S. 317 (1986):
In our viewtheplainlanguage ofRule 56(c) mandates the entry of summaryjudgment, after adequate time for discovery and uponmotion, against a party who fails to make a showing sufficientto establish the existence ofan element essential to that party's case, and on whichthat party will bear the burden ofproofat trial. In such a situation, there canbe "no genuine issue as to any material fact," since a complete failure ofproof concerning an essential element ofthe nonmoving party's case necessarily renders all other facts immaterial.
On a motion for summaryjudgment, all evidence and inferences are to be viewed
in the lightmost favorable to the nonmoving party. However, "ifthe moving party's documentary presentation demonstrates that its version ofthe facts entitles ittojudgment

as a matter oflaw, the Celotex rule requires the party opposing the motion to come forward with documents (other thanthe pleadings) supporting a version ofthe facts that

11 FAA Case No. 2011SW700189/FAA DocketNo. FAA-2013-0040 MARTINAIRE AVIATION, LLC'S RESPONSEAND OBJECTIONS TO ADMINISTRATOR'S MOTION FORDECISIONwouldpreclude the grant ofsummaryjudgment." As can clearly be seenherein,
MARTINAIRE has done this.
Pursuantto 14 CFR 13.218(f)(5),

### Motionfor decision, the administrative law judge shall grant a party's motion only ifthe pleadings, depositions, answers to interrogatories, admissions, matters thatthe administrative lawjudgehas officially noticed, or evidence introduced during the hearing showthatthere is no genuine issue of
material fact and theparty making the motion is entitled to a decision as a matter oflaw.
While the NOPIC errors cited alleged in Paragraphs 3-24 ofthe Complaintmay have been established, Complainanthas notproduced any evidence refuting
MARTINAIRE's affirmative defenses and has notproduced evidence that its choice of
sanction is reasonable or appropriate and in accordance with established law and precedent.
b. AdministrativeLaw Judge is NotBoundby Choice ofSanction AnAdministrative LawJudge (ALJ) is not statutorily boundto follow Complainant's choice ofsanction. ALJ's make decisions independently, and the ALJ
determines whether a civil penalty is to be assessed, and ifso, inwhat amount. 10 The Complainant has chosento apply an excessive civil penalty contrary to its own guidelines. Moreover, as the record in this proceeding clearly reflects, Complainanthas
gone through great lengths to prevent disclosure ofany evidence relating to how it

10 NL Industries, Inc. v. Department of Transportation, 901 F.2d 141 (D.C. Cir. 1990); Federal AviationAdministration v. TexasArmyNational Guard, FAA DocketNo. CP09SOOO 14 (2011 FAALexis 246); FederalAviationAdministration v. FederalExpress, Inc., FAA DocketNo. CP09NMOO 10 (2011).
12 FAA CaseNo. 2011SW700189/FAA DocketNo. FAA-2013-0040 MARTINAIRE AVIATION, LLC'S RESPONSE AND OBJECTIONS TO ADMINISTRATOR'S MOTION FORDECISION

### computed this proposed penalty. 11 

### Complainant's heavy-handed sanction does not, in
any way, increase or otherwise promote safety in air transportation.



### 2. Sanction

a. Standard Complainant correctly states the considerations listed in 49 U.S.C. Sec. 5123(c):
Nature and circumstances ofthe violation;
Extent and gravity ofthe violation; Degree ofculpability; History ofprior violations; Ability to pay the civil penalty;
Effect onthe person's ability to stay in

### business; and
Other matters asjustice may require. \ 

### However, these sanction guidance factors, as well as Complainant's own precedent, demand mitigation and substantialreduction ofComplainant's outrageously
excessive proposedpenalty.
Nature and Circumstances 

### Without understating the importance ofcompliance withthe HMR's 12

, 

### and the
citedregulations, notwithstanding theNOPIC errors, were there evenviolations? There is

11 

### Please see Complainant's Motion for Protective Order, dated April4, 2012, Complainant's Reply to Respondent's Response to Motion for Protective Order, dated April17, 2012, BuchananDepo. at 12:19-13:2, Klimas Depo. at 20:6-23:2.

12 

### MARTINAIRE's Mr. Rusinowitz testified about MARTINAIRE's compliance philosophy: 13 FAA Case No. 2011SW700189/FAA DocketNo. FAA-2013-0040 MARTINAIRE AVIATION, LLC'S RESPONSE AND OBJECTIONS TO ADMINISTRATOR'S MOTION FORDECISION

### no dispute that HMR Section 175.33 provides that the operatormustprovide the pilot in
command with certain accurate and legible written information. As is not the case with

most air carriers, inwhichpersons within the air carrier organization (other thanpilots)
prepareNOPIC's and provide them to the flight crews, 13 

### MARTINAIRE'spilotsprepare their ownNOPIC's-a "memo to self'. Moreover, in completing theNOPIC form,
MARTINAIRE pilots are essentially copying ortranscribing the contents ofthe shipping
documents providedto thembyUPS and DHL, which containthe very same information
mandated by Section 175.33(a)(1). 14 

### To the extentthatthe pilots are inpossession ofthe
UPS and DHL documents, they already have notification ofthe proper shipping name, hazard class and identificationnumber ofthe material. And presumably, the pilots know
the date ofthe flight.
Even iftheNOPIC errors constituted HMRviolations, the extent and gravity of
the alleged violations are low as the pilots already had possession ofall HMR-required
informationby virtue ofthe UPS or DHL documentation (including a "coupon"

"I wantto be safe. I want to be in compliance, and ifl'mnot, let's fix it." (Rusinowitz Depo. at 38:23-24).


### "

.. .I understand compliance. Youknow, ifairlines would realize it's much easier and cheaperto comply that it is to try notto comply and get away with something, it would be a lot easier for everybody. Butitis easierto comply·. "And ifyou have a question, call and ask.... I think ofnothing picking up the phone and calling Mr. Klimas iflhaveto. I'll do it with the drug division, I'll do it with my POI, PAI, PMI. Ifyou've got a question, ask

..... (RusinowitzDepo. at 39:23-40:9).

13 

### Klimas Depo. at 10:18-12:23.

14 

### Smith Depo. at 33:19-13:24,47:18-48:4 14 FAA CaseNo. 2011SW700189/FAA DocketNo. FAA-2013-0040 MARTINAIRE AVIATION, LLC'S RESPONSE AND OBJECTIONS TO ADMINISTRATOR'S MOTION FORDECISION

### containing all the informationrequired by Section 175.33(a)(1))thatis givento them
whenthey pickup and accept the HazMatitem and load it onto their aircraft. Extent, Gravity and Culpability


### As Complainant's Mr. Klimas testified, the July 8, 2011 inspection was not confinedto review ofNOPIC's. It

### was a full HazMatbase and compliance inspection,
conducted at DFW International Airport and at MARTINAIRE's headquarters in Addison, Texas. The FAA was looking attotal HMRcompliance-training, training records, pilotnotificationprocedures, aircraft loading, HazMat acceptance procedures--
and undertaking general surveillance ofMARTINAIRE's activities (Klimas Depo. at 12:24-14:9). With the exception ofthe subject 12 NOPIC errors 15

, 

### everything else was in
full compliance (Klimas Depo. at 14:15-19). These 12 discrepancies (out ofa sampling
ofseveral hundred NOPIC's) were isolated. Moreover, the manner in which the
NOPIC'shad been completed was contrary to MARTINAIRE's manuals, procedures and training 16

. 

### As Exhibit A to the Motion clearly reveals:
-MARTINAIRE's General Operating Manual (GOM) clearly provides that
NOPIC's be fully and accurately completed; and
-MARTINAIRE's FAA-approved HazMat Training Manual clearly provides that
NOPIC's be fully and accurately completed and directs that training be given in completion ofNOPIC's.

15 

### TheNOPIC'swere in MARTINAIRE's 90-day file, containing somewhere between 500 and 600 NOPIC's. In other words, only some 2-3% ofthe NOPIC'swere observed to contain errors.

16 It

### is worthy ofnote that MARTINAIREprovides yearly HazMattraining to its employees, althoughthe HMR'srequire only biennial training, something which Inspector Klimas described as a "goodthing" (Klimas Depo. at 14:23-15:7). 15 FAA CaseNo. 2011SW700189/FAA DocketNo. FAA-2013-0040 MARTINAIRE AVIATION, LLC'S RESPONSE AND OBJECTIONS TO ADMINISTRATOR'S MOTION FORDECISION

### In short, the NOPIC errors were in no way indicative ofMARTINAIRE's regulatory compliance disposition. All employees hadbeen appropriately and adequately
trained and qualified in accordance with MARTINAIRE's FAA-approvedHazMat Training Program. In an immediate response to the FAA inspection, all flight crews and dispatchpersonnelwere immediately retrained, and MARTINAIRE published and

-- -•-·- -- -- --- -•**~** ..-.**~ ~-**  ---r" ••··- •--
..---·--••• ·- -·•- - ·- •-•- ·- •- -··-• -- ••• -••- ------· ---·----- 

### disseminated a newmore user-friendly NOPIC form within 3 calendar days. Subsequent
company internal audits have shown 100% compliance. History of Prior Violations 

### Complainant freely admits thatthe sanction it seeksto impose inthis matter is in

excess ofthe established guidelines contained in its Sanction Guidance Table, due to whatit asserts is MARTINAIRE's history ofHazMatviolations (Motion at 11), citing

two priorwarnings and two civil penalty actions (one ofwhich, the "Purple Power"
matter, was not assessed until after the instant case arose and which did not involve the preparation ofNOPIC's, and which as Complainant's Mr. Klimas testified, he did not

evenconsider [Klimas Depo. at 30:7-30:23)]). As Complainant's BryanBuchanan testified, the average civil penalty soughtby Complainant's SouthwestRegion for
NOPIC violations is inthe $30,000 to $50,000 range (BuchananDepo. at 14:18-14:25),
and thatthe FAAhas never before sought a civil penalty for any NOPIC violation in

excess of$200,000 (!d. At 14:8-14:11)! Complainant'streatment ofMARTINAIRE's "violationhistory" as an "aggravating factor" (Motion at 11) is disingenuous. Aside from relying upontwo administrative actions (no legal finding, no right to appeal andbe heard, no rightto confront witnesses, no right to adduce evidence and no rightto have a full decision based 16 FAA Case No. 2011SW700189/FAA DocketNo. FAA-2013-0040 MARTINAIRE AVIATION, LLC'S RESPONSE AND OBJECTIONS TO ADMINISTRATOR'S MOTION FORDECISION

### upon a factual record), and aside from relying upon the "Purple Power" case, which did

notinvolve NOPIC's and inwhichthe FAA did not even issue a finding until afterthe
instant case arose, Complainant's determination ofsanction and seeking a monetary penalty that is literally "offthe charts", in complete disregard ofComplainant's own guidance and precedent. Attached hereto and made a parthereofas Exhibit H is Complainant's Responses to Respondent's FirstRequest for Production ofDocuments,
served June 17, 2013, including documents in response to Requests to ProduceNos. 1.12, 1.13, 1.14 and 1.15, relating to Orders Assessing Civil Penalty issuedby Complainant's
Southwest Region to other air carriers for NOPIC violations withinthe preceding ten (10)
years. These responses reveal that Complainant, and in some cases, the very same attorney, issued Orders Assessing Civil Penalty inthe following matters: -FAA Case No. 2012SW70081, $77,000 to Atlantic SoutheastAirlines, a much larger company thanMARTINAIRE for, among otherthings, offering for shipment an improperly packaged oxygen generator, that had previously beenrejected by FEDEX and
inwhich thatRespondent had attempted to conceal language onthe package stating that it

was not authorized for transportation aboard aircraft. This is certainly a far more egregious violationthatthe instant case; -FAA CaseNo. 2011SW7000155, $32,000 to SouthwestAirlines, a muchlarger
company thanMARTINAlRE, for improper loading ofa battery-powered wheelchair
which causedthe battery fluid to leak. Again, this is certainly a far more egregious
violationthan the instant case;

17 FAA Case No. 2011SW700189/FAA DocketNo. FAA-2013-0040 MARTINAIRE AVIATION, LLC'S RESPONSE AND OBJECTIONS TO ADMINISTRATOR'S MOTION FORDECISION-FAA Case No. 2011SW710082, $160,000 to EthiopianAirlines, again a much larger company than MARTINAIRE, for, among otherthings, shipment ofanundeclared
oxygen generator, with no labels, markings or shipping papers, utilizing anuntrained employee, certainly a far more egregious violationthanthe instant case; -FAA Case No. 2011SW700093, $24,500 to FEDEX for acceptance of9**~-** -- --- - -**~** ----- ---**------~--** -- - --**~** --- -·---------------- --·-- ·-- ·- shipments ofHazMatwhenthey hadnotbeenprepared in accordance with the HMR's, again a far more egregious violationthan the instant case; -FAA Case No. 2010SW700184, $62,000to SouthwestAirlines for offering for shipmentto FEDEX a fuel control unitthat contained fuel, whenthe shipmentwas not properly packaged, marked, labeled or accompanied by shippingpapers; whenthe shipment was discovered to be leaking, again a far more egregious violation thanthe
instant case; -FAA Case No. 2010SW700147, $5,000 to Atlantic SoutheastAirlines and ExpressJet for offering oxygen for transportationby air when it was notproperly packed,
marked orlabeled, again a far more egregious violationthanthe instant case; and
-FAA Case No. 2007SW70031, $25,000 to World Airways for accepting and transporting humanblood samples suspected ofcontaining Marburg Virus, aninfectious substance, placed inthe overhead storage compartment ofa passenger aircraft when it

was not accompanied by the proper documentation and shipping papers. MARTINAIRE's alleged NOPIC errors pale incomparison to this one!
Now let's address NOPIC cases initiated by Complainant's Southwest Region. Againthe very same Regional Counsel, and inmany cases, the very same attorney,

18 FAA CaseNo. 2011SW700189/FAA DocketNo. FAA-2013-0040 MARTINAIRE AVIATION, LLC'S RESPONSE AND OBJECTIONS TO ADMINISTRATOR'S MOTION FORDECISIONissuedthe following Orders Assessing Civil Penalty inthe following matters for alleged
NOPIC violations:
-American Airlines: Three (3) separateNOPIC cases: CaseNos. 2008SW70060 ($41,500 for 7NOPIC errors); 2008SW700102 ($45,000 for 6 NOPIC errors); and
2010SW70000123 (a mere $22,500 for 13 NOPIC errors, notwithstanding the prior
violation history). American Airlines is certainly a much larger company than MARTINAIRE, and yet it has been assessed approximately halfas much as Complainant
seeks from MARTINAIRE for overtwice the number ofNOPIC errors (apparently the
FAA did not considerthat carrier's "violationhistory" to be sufficiently "aggravating");
and
-Continental Airlines, CaseNo. 2010SW700146 ($32,000 for 8NOPIC errors).
Fromthe foregoing, it is very apparent as to why Complainantwentthrough such
efforts and erected suchhurdles to prevent disclosure as to howit computedthe proposed penalty inthe instantcase! Complainant seeks the largestpenalty on record for alleged
technical violations offar less severity thanthe several actions cited above. Ability to Pay andAbsorbPenalty andRemain in Business Looking atthe FAA's disposition ofthe above HazMat andNOPIC cases above,
itis clearthat Complainanthas imposed substantially lowerpenalties against much larger companies, operating much larger fleets ofmuch larger aircraft for similar, or for even

more egregious violations.
At Complainant's request and for the purpose ofsettling this matter, MARTINAIREpreviously provided Complainant, on a confidential basis, certain
financial data, reflecting that over several years ithas not only enjoyed profits, buthas 19 FAA CaseNo. 2011SW700189/FAA DocketNo. FAA-2013-0040 MARTINAIRE AVIATION, LLC'S RESPONSE AND OBJECTIONS TO ADMINISTRATOR'S MOTION FORDECISION

### also suffered losses. As MARTINAIRE's Mr. Rusinowitz testified at deposition,
MARTINAIRE operated at a loss in2012 and yearto date in 2013, has operated at a loss.
Mr. Rusinowitz' testimony that this civil penalty could be extremely harmful and
detrimental to MARTINAIRE's survival (Rusinowitz Depo. at45:4-45:12), is
uncontroverted.
OtherMatters asJustice May Require 

### Complainant concedes that MARTINAIRE's corrective actions (Motion at 11-12)

were commendable (!d. 

### At 12), but asserts that "they do not exceedthe legal minimum requirement to warrant a reduction in civil penalty" (!d. 

### at 12). What does this mean? What, ifany, case orlegal precedent supports this? Complainanthas conveniently ignoredIn the Matter of StebbinsAviation, 

### FAA
OrderNo. 2006-3 (2006) wherein the ALJ explicitly reduced the proposed civil penalty reasoning thatthe FAAhadnot considered corrective action. Contrary to Complainant's assertion, MARTINAIRE has always gone way beyond what itneededto do to "justgetby". Complainant has ignoredthe fact that
MARTINAIREprovides its pilots and dispatch personnel withHazMat Training on a yearly basis, twice the frequency ofwhat is required under the HMR's. And notwithstanding Inspector Klimas' Declaration attached to Complainant's Motion, Inspector Klimas testified at deposition that MARTINAIRE took the FAA'sfindings seriously, acted accordingly and responsibly and essentially leftno stone untumed. There

was nothing thatthe FAAwantedthat MARTINAIRE did not do (Klimas Depo 17: 11- 23): 

### Q Is there any corrective action thatyou would like to have seenMartinaire 20 FAA CaseNo. 2011SW700189/FAA DocketNo. FAA-2013-0040 MARTINAIRE AVIATION, LLC'S RESPONSE AND OBJECTIONS TO ADMINISTRATOR'S MOTION FORDECISIONtake they didn'ttake?
A I don'trecall any, no. Q So as we sithere today, they were-theytookthese findings seriously, they acted accordingly, andthey were fully responsible?
A Yes.



### --- ------- - -Q-·-

-So youhave-no-gripes-as-to-the-amount ofeffortor-the=-Or-with-respectto

- - the concern ortheresponsiveness orthe thoroughness ofthe corrective actions that Martinaire took?
A No, I do not.
When asked aboutthe working relationship betweenMARTINAIRE and his office, Mr. Klimas added: Q I take itbecause Martinaire does carry HAZMAT, your office has considerable dealings withthem; is that correct?
A I have some dealings withthem, yes. Q Howwouldyou considertherelationship betweenyour office and Martinaire? Is it a cooperative working relationship?
A I would say it has been. Q Whenyou 've expressed concerns, they have respondedto those concerns; have they not?
A Inthepast, they have, yes. 

### Q And very positively?
A Yes. Q They have sought compliance, correct?
A Yes. (Klimas Depo. at 26:9-26:23).

Mr. Klimas first level supervisor, BryanBuchanan, corroboratedthis testimony:

21 FAA Case No. 2011SW700189/FAA DocketNo. FAA-2013-0040 MARTINAIRE AVIATION, LLC'S RESPONSE AND OBJECTIONS TO ADMINISTRATOR'S MOTION FOR DECISION

### Q

.. .Inconnectionwith this case, Martinaire has not denied the FA (sic)'s allegationthatthe NOPCs (sic) were deficient in any way, have they?
A They have not. Q As a matter offact, itwould be safe to say that in response to the FA (sic) audit, Martinaire stepped up to the plate andundertookrather substantial and very shift (sic: swift) corrective actions?

. - A----l'hat2s-GorreGt.--

---- -- Q Was there-inresponse to the FA (sic)'s concerns, Martinaire revised its training program, didn'tit?
A That's correct. 

### Q It

### also revised the NOPC (sic) form to make itmore user friendly, did it not?
A Yes, that's correct. 

### Q And to yourknowledge, there's beenno subsequent episodes of noncompliance withthe NOPC (sic) requirement, is that correct?
A That's correct. 

### Q Interms ofMartinaire's corrective actions orresponse to the FA (sic)'s concerns, concerns, is there anytihg else thatthe FA (sic) wouldhave liked to have seen Martinaire do that it didn't do to fix the problem? Otherthannever carry HAZMAT.
A Based onthe letter from 

### Mr. Rusinowitz and the documentationthathe provided, ifhe was incompliance withthattoday, we would be happy. (Buchanan Depo. at 11:7-12:8).
InParagraph 16 ofhis Declaration, Inspector Klimas has statedthatthe incomplete NOPIC putthe lives offirst responders, MARTINAIRE pilots and the entire
airtransportation system atrisk. Uponwhathas he based this statement?
MARTINAIRE'sNOPIC's are prepared by the pilot, for the pilot. 

### Mr. Klimas
admitted this inhis deposition (Klimas Depo. at 12:16-12:23).
As for putting the lives offirst responders at risk, there is nothing in the HMR's 22 FAA Case No. 2011SW700189/FAA DocketNo. FAA-2013-0040 MARTINAIRE AVIATION, LLC'S RESPONSE AND OBJECTIONS TO ADMINISTRATOR'S MOTION FORDECISION

### that requireNOPIC's to serve any purpose other than to notify the pilot incommand as to whatis onboard his orher aircraft. Firstresponders are notmentioned 

### inthe HMR's. 

### Mr. Klimas has conceded this (Klimas Depo. at 9:20-9:23). Aside from the HMR'sthere
is no FAA-issued authority or guidance that requires thatNOPIC's be prepared for first responders (Klimas Depo. at 9:24-10:13). 

### Mr. Buchananhas corroboratedthis (Buchanan Depo. at 9:11-9:19). This is pure embellishmentby Complainant and its
counselto bolster an otherwise excessive and overreaching civil penalty that it seeks to make the highest 

### inhistory for NOPIC violations. 

### b. Complainant'sProposed Sanction is Unreasonable and Exorbitant.
ALJ's are not agency personnel and therefore are not expressly required by the provisions ofF AA OrderNo. 2150.3Ato follow its guidance. 17 

### Complainant "hasthe
burden of justifying amount sought". 14 CFR Sec. 13.244(a). 18 

### Complainanthas failed to explainhowthis exorbitant civil penalty, the largest
civil penalty onrecord for a NOPIC violation, and against a carrier with approximately
100 employees, operating 38 small aircraft, will further promote air transportation safety

orhint at howitused its sanction guidance to arrive at such an amount when the alleged

errors and omissions onthe part ofMARTINAIRE'spilots were contrary to MARTINAIRE's ownpolicies, procedures and training and whenMARTINAIRE immediately responded to the FAA's concerns, taking appropriate, swift and

17 In the Matter of Folsom'sAirService, Inc., FAA Order No. 2008-11 (2008); In the Matter of NorthwestAirlines, Inc., FAA Order No. 90-37 (1990).

18 "Complainantmustjustifyto the lawjudge the amount ofthe civil penalty it seeks." In the Matter ofWarbelow'sAir Ventures, Inc., FAA OrderNo. 2000-3 (2000)(SEEIn the Matter of Luxemburg, FAA Order No. 1994-18(1994)).
23 FAA CaseNo. 2011SW700189/FAA DocketNo. FAA-2013-0040 MARTINAIRE AVIATION, LLC'S RESPONSE AND OBJECTIONS TO ADMINISTRATOR'S MOTION FORDECISIONcomprehensive corrective actions.
As stated in 

### The Matter of StebbinsAviation, Inc., cited

### supra19: Ithas beenheld many times that it is inappropriate to take a mathematical, formulaic approach ofsimply multiplying the number ofviolations by a set dollar amount.2

# ° Farmore important 

### in determining the appropriate sanction is the totality for the circumstances. This includes the nature, extent, and gravity ofthe

- - - - -- - -- - -- -- -violations, the violator"-s degree ofculpability,-history-ofprior--- violations, financial situation, as well as any othermatters thatjustice requires.
In its attemptto assess multiple civil penalties for the same alleged act of operating a cargo air carrier flight with incomplete or erroneous NOPIC's, Complainant implicitly suggests thattheprovisions ofeach ofthe cited HMR's are sufficiently
different. They are not.

UnderFAA Order 2150.3B, FAA Compliance and Enforcement Program, Chapter 7, Sanction Guidance Policies, Paragraph 6.b., 

### GeneralSanction Guidance, 21 the

19 QuotingIn the Matter of Luxemburg, FAA OrderNo. 1994-28 (1994)(citingIn the Matter of NorthwestAirlines, FAA OrderNo. 1990-37 (1990)).

20 In the Matter of Interstate Chemical Company, FAA OrderNo. 2002-29 (2002).

21 Order 2150.3B, FAA Compliance and Enforcement Program, Chapter 7., Sanction Guidance Policies: Paragraph 6.b., General Sanction Guidance, states Simply adding up the individual penalties for each violation could result in compounding a sanction in a disproportionately harsh manner for the conduct involved. Paragraph 7.b., Limitations on Total CivilPenaltyAmounts for Numerous Multiple Violations, clause ( 1 ), states that In an average case involving numerous inadvertent, multiple violations resulting from a single act or omission, that is, not one that is covered by chapter 7, subparagraphs 7.c. or 7.d., the total civil penalty for the multiple violations ordinarily falls withinthe ranges provided in either Figure 7-1 or 7-2. The group classifications are defined in part I of Appendix B. Paragraph 7.b., Limitations on Total Civil Penalty Amounts for Numerous Multiple Violations, clause (2), states 24 FAA CaseNo. 2011SW700189/FAA DocketNo. FAA-2013-0040 MARTINAIRE AVIATION, LLC'S RESPONSE AND OBJECTIONS TO ADMINISTRATOR'S MOTION FORDECISION

### Complainant's assertions thatMARTINAIRE be fmed for violating three HMR's (Sees. 175.33(a)(l), 175.33(a)(l)(i) and 175.33(a)(7)) is compounding a sanctionin a disproportionately harsh manner for the conduct involved.
MARTINAIRE's alleged non-compliance did notjeopardize safety ofthe subject flights. The pilots already had possession ofthe informationrequired by the HMRwhen they accepted the UPS or DHL shipment and the related shipping papers, including the
coupon which contains the very same informationrequired by Section 175.33(a)(l).
Whenthe NOPIC errors were broughtto its attentionby the FAA at the base inspection,
MARTINAIRE immediately took every available and appropriate corrective action (revising the NOPIC and disseminating the new form withinthree calendar days, enhancing its FAA-approved HazMatTraining Program and completing retraining for all pilots and dispatchpersonnel within one week, and immediately implementing a daily
audit systemto verify thatNOPIC's are correctly completed) and there are no other aggravating circumstances demanding that such a harsh and unreasonable civil penalty be
assessed.Z2

Theterm isolated in Figures 7-1 and 7-2 typically describes a single instance ofan employee's failure to follow a statutory orregulatory requirement, contrary to the company's ownpractice or procedure. A case may involve a number ofisolated and unrelated violations. Each group ofthe multiple violations resulting from each isolated violation ordinarily is subjectto the isolated, inadvertent ranges in Figures 7-1 or 7-2.

22 Order 2150.3B, FAA Compliance and Enforcement Program, Chapter 7., Sanction Guidance Policies, Paragraph7.c., Penalties Outside the Ranges, Clause (1), Penalties lowerthan the ranges, states: Itmay be appropriate to select a civil penalty amountbelow the ranges inFigures 7-1 or 7-2 ifthe degree ofculpability is minimal, the degree ofpotential hazard is extremely low, and there are no other aggravating circumstances.
25 FAA CaseNo. 2011SW700189/FAA DocketNo. FAA-2013-0040 MARTINAIRE AVIATION, LLC'S RESPONSE AND OBJECTIONS TO ADMINISTRATOR'S MOTION FORDECISION

### CONCLUSION
MARTINAIRE respectfully requests thatthe Administrative LawJudge deny Complainant's Motion for Decision, or inthe alternative issue apartial decision concluding that the 12 citedNOPIC's containedthe cited errors; but that the
Administrative LawJudge not enter an orderthat MARTINAIRE be assessed a civil penalty inthe amount of$206,550; thatthe Complaint be dismissed withprejudice; and
for such other and further reliefas may be deemed appropriate. 

### EXHIBITS
Submitted herewith and made a part hereofare the following exhibits:
EXHIBIT DESCRIPTION


### A B 

## c D


### E F G H 

### Deposition ofMARTINAIRE's Cory Smith
Exhibit 7 to Paul Klimas Deposition.
Exhibit 6 to Paul Klimas Deposition Deposition of MARTINAIRE's Michael Bates Deposition ofMARTINAIRE's Alan Rusinowitz Deposition ofF AA's Paul Klimas Deposition ofF AA's Bryan Buchanan Agency's Responses to Respondent's FirstRequest for Production ofDocuments

Inthe interests ofeconomy, otherthan Exhibits A and B above, all Deposition Transcripts submittedherewith are devoid ofthe voluminous deposition exhibits. The undersigned counsel would have no objectionto providing copies ofthe deposition
exhibits shouldthe Administrative LawJudge or Complainant's counsel request same. 26 FAA Case No. 2011SW700189/FAA DocketNo. FAA-2013-0040 MARTINAIRE AVIATION,LLC'S RESPONSE AND OBJECTIONS TO ADMINISTRATOR'SMOTION FORDECISION

### Respectfully submitted,

Dated:J&

### ;._p_

## L~ 

# Jdl**~** Micliael L. 

### Dworkin Counsel for MARTINAIRE AVIATION, LLC

27 FAA Case No. 2011SW700189/FAA DocketNo. FAA-2013-0040 MARTINAffiE AVIATION, LLC'S RESPONSE AND OBJECTIONS TO ADMINISTRATOR'S MOTION FORDECISION,·



### CERTIFICATE OF SERVICE
The undersigned hereby certifies that on

### this~ day ofJune, 2013, a true and correct copy ofthe foregoing
MARTINAIRE AVIATION, LLC'SRESPONSEAND OBJECTIONS TO COMPLAINANT'SMOTION FORDECISION

--------was·served-as·follows:--.--·---·-----·--

---- - ---
The Honorable Richard C. Goodwin**Offic~** 

### ofHearings, M-20 1200 NewJersey Avenue, S.E. East Building Ground Floor, Room E12- 320 Washington, D.C. 20590 {Federal Express}


### Federal Aviation Administration 800 Independence Avenue SW Washington, DC 20591 Attn: Hearing Docket Clerk, AGC-430 Wilbu! Wright Building

- Suite 2W1000 {Federal Express}


### James Archier, Esq. Federal Aviation Administration Office ofthe Regional Counsel, ASW-7 2601 Meacham Boulevard, Suite 6E Fort Worth, TX 76137{Federal Express}

# ~g~---- CAITLIN M. MILLER

28 FAA CaseNo. 2011SW700189/FAA DocketNo. FAA-2013-0040 MARTINAIRE AVIATION, LLC'S RESPONSE AND OBJECTIONS TO ADMINISTRATOR'S MOTION FORDECISION

### Michael 

### L. Dworkin (CA Bar# 64047) MICHAEL 

### L. DWORKIN and ASSOCIATES 465 California Street, Suite 210 SanFrancisco, CA 94104 Telephone: 415-421-2500 FAX: 415-421-2560 Email: law@avialex.com
Counsel for MARTINAIRE AVIATION, LLC 

# RECEIVED JUN 2 82013 

# HEARiNG DOCKET

UNITED STATES OFAMERICA DEPARTMENT OF TRANSPORTATION OFFICE OFHEARINGS

WASHINGTON, D.C.

Inthe Matter of:

MARTINAIRE AVIATION, LLC FAA CaseNo. 2011SW700189 DMS No. FAA-2013-0040 

### MARTINAIRE AVIATION,LLC'S RESPONSE AND OBJECTIONS TO COMPLAINANT'S MOTIONFOR DECISION TRANSMITTAL OFEXHIBITS
Judge: The Honorable Richard C. Goodwin

TO THE DEPARTMENT OF TRANSPORTATION, THE HONORABLE RICHARD C. GOODWIN, ADMINISTRATIVE LAW JUDGE, AND TO THE ADMINISTRATOR, FEDERAL AVIATION ADMINISTRATION AND HIS ATTORNEYS OF RECORD: Respondent, MARTINAIRE AVIATION, LLC (hereinafter "MARTINAIRE"), hereby transmits the Exhibits referenced in its Response and Objections to Complainant's Motion for Decision:

### EXHIBIT DESCRIPTION A
B 

## c
D
E
F


### G
H Deposition ofMARTINAIRE's Cory Smith
Exhibit 7 to Paul Klimas Deposition.
Exhibit 6 to Paul Klimas Deposition Deposition of MARTINAIRE's Michael Bates Deposition ofMARTINAIRE's Alan Rusinowitz Deposition ofFAA'sPaul Klimas Deposition ofFAA's Bryan Buchanan Agency's Responses to Respondent's First Request for Production ofDocuments

Inthe interests ofeconomy, other than Exhibits A and B above, all Deposition Transcripts submitted herewith are devoid ofthe voluminous deposition exhibits. The undersigned counsel would have no objectionto providing copies ofthe deposition
exhibits shouldthe Administrative LawJudge or Complainant's counsel request same. Respectfully submitted,

Counsel for MARTINAIRE AVIATION, LLC

2 FAA Case No. 2011SW700189/FAA DocketNo. FAA-2013-0040 MARTINAIRE AVIATION, LLC'S RESPONSE AND OBJECTIONS TO ADMINISTRATOR'S MOTION FORDECISION-TRANSMITTAL OFEXHIBITS

### CERTIFICATE OF SERVICE
The undersigned hereby certifies that on**this~** 

### day ofJune, 2013, a true and correct copy ofthe foregoing --MARTINAIRE-AVIATION, LLC'S-RESPONSE-ANDOBJECTIONS-TO

___ _ COMPLAINANT'S MOTIONFORDECISION-TRANSMITTAL OF EXHIBITS

was served as follows:

The Honorable Richard C. Goodwin Office ofHearings, M-20 1200 NewJersey Avenue, S.E. East Building Ground Floor, Room E12- 320 Washington, D.C. 20590 {Federal Express}


### Federal Aviation Administration 800 Independence Avenue SW Washington, DC 20591 Attn: Hearing Docket Clerk, AGC-430 Wilbur Wright Building- Suite 2W1000 {Federal Express}


### James Archier, Esq. Federal AviationAdministration Office ofthe Regional Counsel, ASW-7 2601 Meacham Boulevard, Suite 6E FortWorth, TX 76137{Federal Express}



### CAITLIN M. MILLER 3 FAA CaseNo. 2011SW700189/FAA Docket No. FAA-2013-0040 MARTINAIRE AVIATION, LLC'S RESPONSE AND OBJECTIONS TO ADMINISTRATOR'S MOTION FORDECISION-TRANSMITTAL OF EXHIBITS

# • •

EXHIBIT A 

## Deposition ofCory Smith

FAA Case No. 2011 SW700189/DMS No. FAA-2013-0040 MARTINAIRE AVIATION, LLC'S RESPONSE AND OBJECTIONS TO COMPLAINANT'S MOTION FOR DECISION

### FEDERAL

# A~TION ADMINISTRATION v.

# ~NAIRE Deposition of: 

### CORY SMITH

7 8 9 10 1l
12
13
14 15 16 17 18 19 20 21 22 23 24 25 U.S DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION OFFICE HEARINGS WASHINGTON, DC In the Matter of: ) FAA DOCKET No. FAA-2013-0040 Martinaire Aviation LLC ) FAA CASE No. 20llSW700189 } {Civil Penalty Action) Respondent

******************************************************** ORAL DEPOSITION OF
CORY SMITH MAY 15, 2013 ********************************************************

ORAL DEPOSITION OF CORY SMITH, produced as a witness at the instance of the FAA, and duly sworn, was taken in the above-styled and numbered cause on May 15, 2013, from 9:14a.m. to 12:07 p.m., before Kristin McDowell, CSR in and for the State of Texas, reported by machine shorthand, at the offices of FEDERAL AVIATION ADMINISTRATION, 2601 Meacham Boulevard, Fort Worth, Texas 76137 pursuant to the Federal Rules of Civil Procedure.

1 APPEARANCES 2 3 Mr. James Archier FEDERAL A VlATION ADMINISTRATION 4 Office ofRegional Counsel Southwest Region 5 2601 Meacham Boulevard Fort Worth, Texas 76137-4298 6 Phone: (817) 222-5099 Fax: (817) 222-5945 7 JAMES.ARCHIER@FAA.GOV 8 COUNSEL FOR FEDERAL AVIATION ADMJNISTRATION 9 -and10 11 Ms. Becky Holms FEDERALA VlATJON ADMINISTRATION 12 Office ofRegional Counsel SouthwestRegion 13 260I Meacham Boulevard FortWorth, Texas 76137-4298 14 Phone: (817) 222-5099 Fax: (817) 222-5945 15
16 17 COUNSEL FORFEDERAL A VlATJON ADMINISTRATION

18 Mr. Michael L. Dworkin MJCHAEL L. DWORKIN & ASSOCIATES 19 465 California Street Suite 210 20 San Francisco, California 94104 Phone: (415) 421-2500 21 Fax: (415) 421-2560
22

23 24 E-MAIL: LAW@A VlALEX.COM COUNSEL FOR MARTINAIRE

2 5 Also Present: Mr. Alan Rusinowitz 1

2 1

2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 1 5/15/2013 

### (Pages 1 to 4)
3 INDEX PAGE APPEARANCES

............... . 2 WITNESS CORY SMITH

DIRECTEXAMINATION BYMR. ARCHIER. . . 4 Signature and Corrections

. . . . . . . . 95 Reporter's Certificate.

. . . . . . . . . 97 EXHIBITS NO. Description PAGE CR-1 Notice..

. . . . . . . . . . . . . . . . 36 CR-2 E-mail.

. . . . . . . . . . . . . . . . . 36 CR-3 NOPC Training Record

........... 41 CR-4 NOPC Document

.............. 46 CR-5 NOPC Document.

. . . . . . . . . . . . . 52 CR-6 NOPC Document.

. . . . . . . . . . . . . 59 CR-7 NOPC Document.

............. 63 CR-8 NOPC Document.

. . . . . . . . . . . . . 69 CR-9 NOPC Document.

. . . . . . . . . . . . . 70 CR-10 NOPC Document

. . . . . . . . . . . . . . 73 CR-11 NOPC Document

.............. 75 21 CR-12 NOPC Document

.............. 77 22 CR-13 NOPC Document

.............. 80 23 CR-14 NOPCDocument

.............. 83 24 25

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CR-15 NOPC Document

.............. 85

PROCEEDINGS

(Oath administered.)

CORY SMITH, having been first duly sworn, testifies as follows: EXAMINATION BYMR. ARCHIER:

Q. Good morning. Would you please state yourname? A. Yes, sir. Cory Smith. Q. Myname is James Archier, Mr. Smith. Pleasure to meetyou. Ms. Becky Holms, who is an attorney with our office, will be sitting in on this deposition with us. This discovery deposition is taken pursuantto notice and in accordance with the Federal Rules ofCivil Procedure. Mr. Smith, I'm goingto ask you a series of questions. I'd appreciate itifyou'd answerthe questions outloud. No nods or shakes ofthe head. Do you understand, sir?

A. Yes, sir. Q. Okay. Ifl ask you a question you don't understand, ask me to repeat itandrephrase andI'll do
so.

A. Yes,sir. Q. Okay. Ifyouneed a break, let me know, and we will arrange for you to take a break. Obviously I don't 4



### U.S. LEGAL SUPPORT

- DALLAS, TEXAS 214-741-6001
9a394e2d-f6eb-4516-Bca0-843c4130df7f

# ( FEDERAL

# A~ATION Deposition of: CORY SMITH ADMINISTRATION v. 5/15/2013 

### 2 (Pages 5 to 8)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 5 7

want you to take abreak duringthe time a question is 1 A. Ido. pending. Do you understand? 2 Q. Okay. Tell me about

-- I want to shift and I

A. Yes, sir. 3 wantto focus on yourprofessional background. Andtell Q. Okay. There iswater, tea, and coffee 4 me a little bit about youreducational background. downstairs, butbecauseyou're a visitor in our 5 A. Yes, sir. I have a master's degree in commercial building, you have to be escorted atall times. So if 6 aviation from Delta State Universityin Cleveland,

we have to take a break and youneedto go offofthis 7 Mississippi. floor, you're going to have to have an escort and we'll 8 Q. And what kind ofdegree was that? work that out. Do youunderstand? 9 A. It's a commercial aviation degree.

A. Yes, sir. 10 Q. Okay. What does that entail? Q. Okay. Is there anything about yourphysical, 11 A. Basicallyit's a degree in science. It's a emotional, ormental condition thatwill not allowyou 12 science degree with aviation background, meaningthey to understand my questions today? 13 basicallytake you anywhere from a private pilot all the

A. No, sir. 14 way through CFII with advance systems. It's a 141 Q. Ifthatchanges, will youpromise to tell me? 15 training facility. A. Yes,sir. 16 Q. Okay. So whattype ofdegree do you receive at Q. Okay. Is there anything aboutyourphysical, 17 the end ofyourcompletion? emotional, ormental condition thatwill not allowyou 18 A. Well, you receive a bachelors, then you can to give full and complete answers to my questions today? 19 continue on to your masters.

A. No, sir. 20 Q. Okay. Q. Ifthat changes, will you promise to tell me? 21 A. Which I did. A. Yes,sir. 22 Q. Okay. So you have a masters? Q. Are you on any medications that will make it 23 A. That's correct. difficult for youto understandmy questions today? 24 Q. And yourmasters is in what designation?

A. No, sir. 25 A. Commercial aviation, as well, yes, sir. 6 8 Q. Okay. Are you sicktoday? 1 Q. Okay. Do you have any licenses also? A. No, sir. 2 A. Be more specific. Q. Are youcurrentlyunder a doctor's care? 3 Q. Okay. Do youhave any pilot licenses? A. No, sir. 4 A. Yes, sir. Q. Okay. Haveyouhad any alcohol within the last 5 Q. Tell me whatkind ofpilotlicense youhave. eighthours? 6 A. I have an ATP.

A. No, sir. 7 Q. Doyouhave any othermedical certifications? Q. Anyotherreasons thatyoucan think ofasto why a A. I have a medical certificate that allows me a youwon'tbe able to answermy questions fully and 9 Class 1 medical. truthfully? 10 Q. Okay. So you're currently able to fly right now,

A. No, sir. 11 correct? Q. Okay. Mr. Smith, didyoumeetwith any persons 12 A. Absolutely. otherthan yourattorney to prepare for this deposition 13 Q. All right. What do you-- what type ofplanes today? 14 are you able to fly?

A. No,sir. 15 A. I canfly

- I'm type-rated in a Beech 1900, Q. Did youtalk to any otherwitnesses withoutthe 16 Metroliner, and anything that's multi-engine or high presence ofyourattorneytoday? 17 performance,I'm licensed to fly.

A. No,sir. 18 Q. Okay. How longhave you worked atMartinaire Q. Okay. Wheredo you live at, Mr. Smith? 19 Aviation? A. InMcKinney,Texas. 20 A. Let's see. Since December4th,I believe, 2004. Q. Okay. Andyour address? 21 Q. Okay. Whatis your title there? A. 6804 Allegiance Drive,McKinney. 22 A. I am the assistant chiefpilot as well as the Q. Areyoumarried or single? 23 multi-engine programmanager. A. I'm married. 24 Q. Tell me whatyour duties and responsibilities Q. Do youhavechildren? 25 are. 

### U.S. LEGAL SUPPORT

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## ( FEDERAL A41lTION ADMINISTRATION v.

# ~AIRE Deposition of: 

### CORY SMITH 5/15/2013 3 (Pages 9 to 12)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 9 A. My duties andresponsibilities include assisting 1 the chiefpilot in the day-to-day operations. I'm also 2
a companyinstructor and checkairman ofthe aircraft 3 types, so I do a lot oftraining, a lot ofchecking. We 4 maintainpilot records. We assist our dispatch in 5 coordinatingwith our customer and getting our freight 6 to what needs to go on time. 7 We implement procedures and policies. We keep 8
our General Operations Manual up to date, our different 9 programs upto date. Partofthe multi-engineprogram 10 thatI oversee is basically any aircraftwithtwo 11 engines. I keep that program up to date, handpickthe 12 pilots, make surethepilots get appropriatelytrained 13 and checked and make- I can'ttalk- make surethey 14 stay currentin the aircraft. 15 MR. ARCHIER: Ms. Court Reporter, would you 16 readthat answerbacktome, please. 1 7 (Reporterread requestedportion.) 18 Q. (BY MR. ARCHIER) Is that all your duties, 19 Mr. Smith? 2o

A. I have a lot ofduties. I really do. Butthat 21 will bethemajority ofthe duties that I do. 2 2

Q. Tell me about some ofyour other duties. 2 3 A. I do interviews. Theinterviewprocess, interviewthepilots, do interview-flights. I do a lot

ofmaintenanceflights, checkthe aircraft. There's
numerous things that I do.

Q. Okay. Tell me about them. A. Whatmore would you liketo know? Q. Tell me the other duties that you do do. A. I also fly theline as a regular linepilot, and I also do theline checks on ourother pilots. MR. DWORKIN: Ifyou have some specific inquiry as to his duties and responsibilities, why don't youjust ask him ifhe's familiar and involved with such-and-such, a duty, ortask. MR. ARCHIER: Thank you, Mr. Dworkin. Q. (BY MR. ARCHIER) Tell me about-- Iwant to go andtalk about your day-to-day operations. On a day-to-day basis, what do you do?

A. Day-to-day I come in, we have a morning meeting at9 o'clock. I see whattheprevious night's operations

- how they went, what problems we have, what problems we need to take care of. Afterthat, I - eithermyselforthechiefpilot audits forms from the previous night. Itreally depends on the day. lflhave a ground school going on, I'll assist in teaching ground school. There's days where I have to coordinate with the FAA, to get either a GOM upto dateorcoordinate a check route 10 24 25

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 orjustthe different odds and ends thatmyjobisthatis required ofme. I assist ourdispatchers a lot in looking at 11

weather, make surethatwe maintain a safe and efficient operation, which we do. Itwould reallyjustdepend on the day, it depends on whatcame up.

Q. Okay. When you say you're involved in training, tell me how

-- what

-- tell me the extent and what you're involved in as far as training is concerned.

A. I am a checkairman in all the aircraftwhich gives me the authority to ground train as well as flight train everything from FAR, FAR's, INDOT systems ofthe aircraft,procedures, de-ice training, hazmattraining, TSA training. Basically I can make a pilot from a new hire to a line captain. I have the authority to do all that.

Q. Tell me about specifically whatyou do with regard to hazmat training.

A. You need to be more specific on whatyou want to know.

Q. What kind oftraining do you administer concerning hazmat training?

A. I administerhazmatperourhazmat program, which consists oftrainingfrom a PowerPointpresentation that is in accordance with ourtrainingprogram.

Q. Okay. You also indicatedyou're involved with maintainingrecords. Are youthe custodian ofrecords?

A. It's partofmyjob,yes. The chiefpilot and I sharethat responsibility becauseofourtravel.

Q. Whattype ofrecords do youmaintain? A. I maintain pilot records, trainingrecords, I review hazmat records, PREA records.

Q. What kind ofrecords? A. PREA. Q. What do youmean by that? 12

A. Background checks for pilots from other companies. Wemaintain ourpilots' background checks. That's basically all the records.

Q. Okay. Whenyou say youmaintain hazmat records, specifically whatkind ofhazmatrecords?

A. The hazmat records that thepilots call in to ourdispatchQ. Okay. A.

-- I wantto ensurethat they are filled out legibly andcompletely with accordance with thelaw.

Q. Are we talking about theNOPC forms? A. We aretalking about theNOPC forms; thatis correct.

Q. Arethere any other type ofhazmatrecords that you assist in maintaining? 

### U.S. LEGAL SUPPORT

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9a394e2d-f6eb-4516-8ca0-843c4130df7f

# ( FEDERAL

# A~ATION ADMINISTRATION v. MttiNAIRE Deposition of: 

### CORY SMITH 5/15/2013 4 (Pages 13 to 16)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 13 15 A. No,sir. 1 records thatwe have to maintain and keep for 90 days. Q. Mr. Smith, how do you maintain those records? 2 I then go retrievethebinder,get the hazmat forms out A. Which records? The hazmat? 3 from the night before, takethem to my office and audit Q. The hazmatrecords. 4 them. A. TheNOPC's? 5 Q. When you say audit them, what are you looking Q. Yes. 6 for? A. Okay. The NOPC's are-- basically the pilothas 7 A. I'mlooking for- there's a lot ofdifferent to notify, himself, okay, ofwhatis on board our 8 stuffl'mlooking for, to be honest with you. ButI'm aircrafthazmat-wise. The pilotcalls the hazmatin to 9 making sure that the shipping name is correct, correctly
our dispatchers. 10 spelled, make surethatall thel's are dotted and the Our dispatchers make the hazmatform. They keep 11 T's are crossed, make surethatit matches the Shipper's the copy for 90 days, in which every dayeither myself 12 good book.
orthe chiefpilot audits those forms with the A.I.R. 13 The UN ID number, make surethat it matches the Shipper's goods hazmatbook. We compare apples to 14 propershippingname, making surethe quantities are apples and make sure everything's done completely and 15 within limitations, making surethatthe packinggroup done the rightway. 16 is included, ifa packing groupis needed.

Q. Okay. Do you maintain those Notice of 17 Emergency contactnumber, make sure thatifit's Pilot-in-Command forms within your office? 18 required, it's on the form. Thetotal numberofgoods

A. Thatis notwithin my office. 19 on board. Thetotal amount oftransportindex that's on Q. Whose office are they in? 20 board the aircraft. Total pounds ofdry ice onboard. A. They're maintained in dispatch, our dispatch 21 To make surethat all the l's are dotted and the T's are center. 22 crossed.

Q. And you don't physically work out ofdispatch, do 23 Q. What do you do ifthere's a mistake onthatNOPC you? 24 form?

A. No,sir. 25 A. I immediatelybringthe form to my boss, who is 14 16 Q. Where is youroffice in relationship to the 1 the chiefpilot, orAlan, who is the director of dispatch offices where you're located? 2 operations.

A. Two offices down. 3 Q. When you say Alan, who do you mean specifically? Q. Okay. Now, there wouldbe a dispatch office in 4 A. Alan Rusinowitz. Addison, Texas, correct? 5 Q. Okay. When youtake that NOPC to Mr. Bates, what

A. Thatis correct. 6 type ofdiscussions do you have? Q. Okay. Howmany other dispatch offices are there? 7 A. Well, there's a- ifwe've found an errorweA. There's one. 8 he double-checks me, make surethatI didn'tmiss Q. Where is that located? 9 anything and vice versa. A. In Addison. 10 Ifwe do find an error, we want to make surethat Q. In Addison, okay. 11 thecoupon that the pilot gets thathas the NOPC on it,

So there are no other dispatch offices throughout 12 we contact UPS and make surethat everything matches on the country? 13 ourNOPC form. And ifthe pilot makes a mistake, we

A. You're correct. 14 contact the pilot, and we have a correctiveinterview. Q. Okay. Howmany -- during the course ofa 15 Q. When does Mr. Rusinowitz get involved as opposed day-to-day operation, how many NOPC forms would come 16 to Mr. Bates?
across yourdesk? 17 A. When Mr. Bates isn't around oron the road.

A. Average? Five. 18 Q. And is the procedure youjustwalkedme through Q. Five a day? 19 pretty much the same when you're dealing with Mr. A. Average. (Witness nodding head). 20 Rusinowitz? Q. Okay. What's the first thing you do when you-- 21 A. Absolutely. does the NOPC come automatically to you? 22 Q. And when you have ameeting with the pilot, is

A. No, sir. 23 that meeting face-to-face orby telephone? Q. Where does it go first? 24 A. Depends on where the pilotis located. We have A. The dispatchers putitin a binder, in our 25 pilots all overthecountry. 

### U.S. LEGAL SUPPORT

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# ( FEDERAL

# A~ATION ADMINISTRATION v.

# ~NAIRE Deposition of: 

### CORY SMITH 5/15/2013 5 (Pages 17 to 20)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 17 19 Q. Where are your pilots located? 1 Q. Okay. Do you fly aparticularroute? A. Coastto coast, borderto border,to be honest 2 A. No, sir. I go all over. with you. 3 Q. Okay. How manyroutes are there?

Q. So how many states do you have pilots in? 4 A. Again, without looking on a map, I'm not going to A. Man, I've got to countnow. 5 give you an answer, because I don't know for sure.

You know what? I-- withoutlooking ata map and 6 Q. Okay. Whatroutes do youfly? counting, I couldn't give you an honestnumber. 7 A. All ofthem.

Q. Okay. Is it more than ten states? 8 Q. Okay. A. Again, withoutlooking ata map, I don'twantto 9 A. Depends on where I'm needed orifI'm needed, for give you a numberthat I'm not sure of. 10 that matter.

Q. Okay. So ifI've got a map, you could outline, 11 Q. What instances wouldrequire you to fly aroute? you could pointto me every state that do you have 12 A. Pilot shortage,vacation, sick, currency, that's operations in? 13 basically it.

A. Letme rephrase thatanswer, then. IfI didn't 14 Q. You say you also get involved with the procedures have a map that shows ourroute, a route mapthat we 15 and policies. Describe to me what your involvement is have atour company, I can't give you an honest answer 16 with the procedures and policies. without looking because I might forget one ortwo. 17 A. Well, ifwe see that a policy needs tobe

Q. Okay. When you're having a meeting with the 18 changed, implemented, corrected, whatnot, myself, the pilot face-to-face and there's a mistake, can you tell 19 chiefpilot, directorofoperations get together and
me whatthe discussion is? 20 implement policies thatwe need to changeifwe -- and

A. Yeah. We do-- we reeducate the pilot, retrain 21 to stay in accordance with theregulations. the piloton whatthey screw up on. Most ofthetime 22 Q. And for-- give me an example ofa specific it's grammatical. They misspelled a word. It's not 23 policy orprocedurethatyou would get involved with and legible. We run the pilotbackthrough ourhazmat 24 make a change. training program and

... 25 A. Itcan be anything as simple as calling in times 18 20 Q. When you say you run the pilot back through you 1 to our dispatch in a different manner to a change in our hazmat training program, tell me how that works. 2 General OperationsManual.

A. Well, ifthey'rebased in Addison. I have a 3 Q. You also indicated that you're involved in your PowerPoint presentation to where I can show them the 4 multi-engine program? program again. Ifthey're not based in Addison, I send 5 A. That's correct. them the program via e-mail and we sit on the phone and 6 Q. Tell me what your-- describe to me yourduties the computer and we run through the PowerPoint 7 and activities with yourmulti-engine program. presentation together and we see ifthe pilot has any 8 A. Well, thatincludes ensuringthatthe -letme questions and understands how to correct his mistake in 9 startover from the beginning. the future. 10 I initiated the program,I startedthe program.

Q. Abouthow long is that PowerPoint presentation? 11 I maintain the program. I make sure the programis A. Ittakes abouttwo hours to go through it. 12 current, up to date. In respectto the pilots, I review Q. Now, you say one ofyour otherresponsibilities 13 their qualifications. I can train new co-pilots, can is you handle freight? 14 give co-pilots checkrides. I canteach the systems of

A. I do handle freight. 15 the aircraft, procedures ofthe aircraft. Q. Okay. Tell me your duties in respect to your-- 16 Ourprogram we use FlightSafetyInternational to what you do with freight. 17 train our captains. So I workhand in hand with the

A. Well, when I fly the line, I have to assist in 18 representatives from FlightSafety and sending our loading and unloading the airplane. In essence I handle 19 captains to school and making sure that the trainingis the freight from airplaneto truckorfrom truckto 20 progressing correctly and efficiently and ifthere's no aircraft. 21 problems that are foreseen.

Q. And are you flying by yourselfwhen you do that? 22 And do line checks, do checkrides in the multis, A. Most ofthetime. 23 assist differenttraining, such as GPS training, Q. Okay. How often do you fly a week? 24 different implementations ofdifferent equipmentthat A. I average about 30 hours a month. 25 mightbe installed are in the aircraft. That's about 

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# c

.-· '**'~--** 

### FEDERAL

# ~ATION ADMINISTRATION v. MAIIINAIRE Deposition of: CORY SMITH 5/15/2013

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 

### 6 (Pages 21 to 24) 21 23**~** 1 Q. So ifyou hire a newpilottomorrow, you're 2 responsible for training thatnewpilot? 3

A. I sharethe responsibility. 4 Q. Who else shares thatresponsibility? 5 A. The chiefpilot. 6 Q. Okay. And I believe you said you started with 7 Martinaire in 2005, correct? 8**~~~** 9

Q. 2004? 10 A. Letme make sure. Yeah, 2004. 11 Q. Were you working before 2004? 12 A. I was. 13 Q. Where were you working at? 14 A. I was a corporate pilotfor a lawfirm out of 15 Greenville, Mississippi. 16

Q. And what was the name ofthat law firm? 17 A. Hollowell LawFirm. 18 Q. What were yourresponsibilities? 19 A. Flying the aircraft. 2o Q. What did youfly? 21 A. Weflew anything from --we progressedin 2 2 aircraftas it got busier and busier. Weflew anything 2 3 from a Cherokee 6 to a King Air E90. 2 4

Q. Were youthe chiefpilot? 25 22 A. I wasthepilot. 1 MR. DWORKIN: So I guessthatmakes him the 2 chiefpilot. 3

Q. (BY MR. ARCHIER) How often did you fly? 4 A. I really can't- itwas so long ago, I can't 5 give you a number. 6

Q. Okay. Howlong wereyouworkingthere? 7 A. A little over a year, and then he gotrid ofthe 8 aircraft. 9

Q. Didyouhave ajobbefore that? 1 o A. I did. 11 Q. Where didyouwork at? 12 A. Delta StateUniversity. 13 Q. Whatdid youdo for them? 14 A. I was the lead flight instructor. Q. Tell me aboutDelta State University. Whatkind ofoperation is that?

A. 141 training program, a 141 school. Q. Andyourresponsibilities were whatagain there? A. I was a flight instructor. Q. Okay. So youtrained

-- tell me in detail what yourresponsibilities and duties were there.

A. I trained pilots. Anythingfrom a private pilot all theway through CFI's, CFII's.

Q. Tell mewhat a CFI is. 15 16 17 18 19 20 21 22 23 24 25 A. What a CFI is? Q. Yeah. A. Certified flight instructor. Q. What's a CFII? A. Certified flight instructor for instruments, to fly instruments.

Q. And so you trainedpilots onboth ofthose? A. I trained - I can train pilots on everything. The only thing I could not train was multi-engine because I'm not an MEl, which is mutt-engine instructor.

Q. Okay. How long were you at Delta State? MR. DWORKIN: As an instructor? As an employee as opposed to a student? MR. ARCHIER: Correct. Yeah, as an employee.

A. Okay. Let's be more clear. As an employee as an instructor oras an employee?

Q. (BY MR. ARCHIER) So let me ask you this question, then.

A. Okay. Q. When you were at Delta State, did you work more than one position?

A. No. I was an instructor. Q. You were an instructor. So when you were at Delta State, how long did you work as an instructor?

A. I wantto say three years, butit's been so long ago, I don't remember.

Q. Yeah, roughly three years? A. Roughly. Q. Okay. Now, Ijustwanttomake sure I'm clear. Youdidn't hold any otherjobs at Delta State, correct?

A. Atthe university? Q. At the university. A. Otherthan a work study program, no. Q. Okay. All right. Was that yourfirstjobout of-- after your graduation, ordid you have ajob before that?

A. At Delta State? Q. Well, yeah. Ifthere are otherjobsyou had at Delta State, I'd like to know aboutthem.

A. Thatwas it. Q. Okay. Butpriorto Delta State, did you have any otherjobs?

A. Yes. Q. Where were you working at? 24

A. Where didn'tI work. I was a line guy. I pumped fuel atthe local airportatmy hometown ofVicksburg, Mississippi.

Q. So what years did you go school, again, ifyou can give me that information. 

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# (

( FEDERAL

# ~ATION ADMINISTRATION 

### v. JltiNAIRE Deposition of: CORY SMITH 5/15/2013 7 (Pages 25 to 28)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 25 27 A. University? 1 A. Make sure thatthey complete a weight and Q. Yes, university. 2 balance, make sure the aircraftis legal and safe. They A. I was atHinds Community College from 2000 to 3 fill outhazmatforms. They call hazmatforms in to our 2001, and then I wenttoDelta State from 2001 to 2003, 4 dispatch facility. Assist in loading and unloading I believe. God, I'm getting old. 5 aircraft. What more? I mean that's all I can thinkof

Q. 2003 at Delta State? 6 atthistime. A. Um-hmm (affirmative). 7 Q. Okay. I wantto talk about when a captain is Q. And did you receive your BA and masters? 8 loading orreceives some shipments thathave hazmat on A. I didthe BA atDelta State and masters online 9 them. They would receive those shipments either from

. through Delta State. 10 UPS orDHL; is that correct?

Q. And when did you receive the masters? 11 A. I'm sorry. A. 2004, ifl'm not mistaken. 12 Q. Okay. Q. 2004? 13 A. Yes, sir. A. Um-hmm (affirmative). 14 Q. Okay. And the captain, while he's reviewing the Q. And then after you received yourmasters, is that 15 shipments thathe has, he would fill out a hazmat form whenyou started working for Delta State University as 16 on-site, correct?
an instructor? 17 A. Atthe aircraft.

A. I was working for Delta State beforehand. 18 Q. At the aircraft, correct? Q. As a-- how did that work? 19 A. Yes,sir. A. An instructor. 20 Q. All right. Now, after he fills that hazmat form Q. Okay. So you were working as an instructorwhile 21 out, the next step is he would call the dispatch office you were goingto school? 22 andtell the dispatch office what the hazmat is; is that

A. That's correct. 23 correct? Q. Okay. So did you start working

-- what yeardid 24 A. Yes, sir. you start working as an instructorwhile you were going 25 Q. Okay. Andthe dispatch office records what the 26 28
to school there? 1 hazmatis?

A. '02. 2 A. Let me add to that. Q. Okay. Were there any otheraviation positions 3 Q. Please. thatyouheld before 2000? 4 A. They record what the hazmat is, and they also

A. Otherthan- 5 double-check thepilot to ensurethat he is safe- that MR. DWORKIN: Meaning employmentposition? 6 he can safely and legally fly that package, that hazmat MR. ARCHIER: Employmentpositions. 7 package. A. No. 8 Q. And how do they do that? Q. (BYMR. ARCHIER) No. Okay. 9 A. The same book thatI audit the forms with, which

Howmanypeoplereporttoyou, Mr. Smith? 10 is the dangerous A.I.R goods shipment book, handbook. MR. DWORKIN: Currently? 11 Q. And that dangerous A.I.R. goods handbook, what MR. ARCHIER: Currently. 12 type ofinformation does that have in it? A. Twenty-nine, I believe. 13 A. Everything thatI need to know. Anythingfrom Q. (BYMR. ARCHIER) Twenty-nine? 14 proper shippingname to UN ID numberto packing group. A. Give ortake one ortwo. 15 All theinformation thatI need in orderto auditthat Q. Okay. What are the titles ofthe peoplethat 16 form. reportto you? 17 Q. Okay. So once the dispatch office reviews that,

A. Captains. 18 they record the information again; is that correct, on a Q. So all captains reporttoyou? 19 NOPCform? A. Either myselforthe chiefpilot, absolutely, 20 A. Thatis correct. yes, sir. 21 Q. Okay. Now, once they record that information on

Q. What are the responsibilities ofthe captains? 22 aNOPC form, what happens to that NOPC? A. Flythe airplane safely, efficiently from pointA 23 A. I believe you already asked this question. to pointB. 24 Q. Okay.

Q. Any otherresponsibilities? 25 A. I believe I answered it. 

### U.S. LEGAL SUPPORT

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# C

.. FEDERAL

# A~ATION ADMINISTRATION v. MAIIINAIRE Deposition of: 

### CORY SMITH 5/15/2013 8 (Pages 29 to 32)

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1 2 3 4 5 6 7 B 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 29 Q. Yeah. Can youtell me again, please? 1 A. Sure. Itgoes into a binder, and that's our 2 records thatwe maintain. 3

Q. Now, the NOPC that the pilot fills out at the 4 aircraft, whathappens to thatNOPC? 5

A. It's discarded. 6 Q. Does thatpilot discard thatNOPC? 7 A. That's correct. I mean afterthe flight is 8 finished. The pilot no longeris required or does he 9 need the NOPC. 10

Q. Okay. 11 MR. DWORKIN: And, I take it, you're asking 12 about the procedure that's in effect now. Becausehe's 13 answeredthe questions as ifyou're inquiring as to the 14 procedure now. 15

Q. (BY MR. ARCHIER) Okay. Is that correct, 16 Mr. Smith? You're answering the

-- my question with 1 7 regardto the procedures rightnow? 18

A. That was my understanding ofthe question. 19 Q. Yes. 20 A. That's correct. 21 Q. Okay. Well, thank you for that clarification. 2 2

How many territories does Martinaire fly in? 2 3 MR. DWORKIN: Objection. I'mnot sure the 24 term "territories" is... 2 5

Q. (BY MR. ARCHIER) Orareas. Do you know? MR. DWORKIN: You know

... MR. ARCHIER: Your objection as to vague? MR. DWORKIN: It's vague and ambiguous. Territories is

-- MR. ARCHIER: I'll restate the question. Q. (BY MR. ARCHIER) How many aircraft does Martinaire have?

A. I believe the numbernowis 38, I believe. MR. DWORKIN: When you say have, youmean operate? MR. ARCHIER: Operate. A. Currently? Q. (BY MR. ARCHIER) Currently, today. 30
1 2 3 4 5 6 7 B 9 10 11 12 13 14 A. I believe it's 38. 15 Q. Okay. Andhowmany pilots does Martinaire have 16 working for ittoday? 1 7

A. Again, I believe the numberis 28. 1 B Q. Twenty-eight? 19 A. You know what? Don't- I don'tknow offthetop 2 0 ofmy head rightnow. We've hired some, we've let some 21 go. So I don't rememberthe numberoffthetop ofmy 22 head. 23

Q. Okay. Have you let any pilots go for failure, to 2 4 improperly completeNOPC's? 2 5 A. I haven'thad any issue as ofsorts lately. Q. Lately. Have youever sinceyou've worked there released a pilot for failure, to improperly complete NOPC's?

A. No. Not thatI'm aware of. Q. Okay. I wantto talk a little bitabout the 31

dispatch office. Who manages the dispatch officetoday?

A. Ourdispatch manager. Q. Who is that? A. JenniferMoore. Q. Okay. And does-- I presumethatyourdispatch office operates 24/7, correct?

A. Not quite. Not quite seven. We're closed from 4:00 p.m. on Saturdayevenings-- I believe that's the time- to 11:00 p.m. Sunday night.

Q. Okay. And so Jennifer's last name, again, was what?

A. Moore. Q. Moore. Okay. So whathours doesJenniferMoore work?

A. Depends on the shift that she has to work, depends on a lot ofvariables.

Q. And howmanypeople are working in the dispatch office?

A. I believe six.

Q. Okay. And tell me what JenniferMoore does on a day-to-day basis. MR. DWORKIN: Ifyou know. A. I don'twantto speak for Jennifer. Q. (BY MR. ARCHIER) You don't know? Okay.

Do you know the other employees that work in the dispatch office?

A. I do knowthem. Q. Tell me theirnames. A. Gina, Talena, Matt, and-- Q. Do you know Matt's last name? 32

A. I don't remember Matt's last name atthe moment. Q. Okay. A. I'm drawing a blank. I'm sorry. Q. Okay. Ifthat information ornames come to you, let me know.

A. Okay. Q. Okay. Are the people in the dispatch office, are they hazmattrained?

A. Theyare. Q. Okay. And you trained them? A. I assisted. Q. Who else does the hazmat training in the dispatch office?

A. The chiefpilot. 

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# ( FEDERAL

# A~ATION ADMINISTRATION v.

# ~NAIRE Deposition of: 

### CORY SMITH 5/15/2013 9 (Pages 33 to 36)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 33 Q. And that's Mr. Bates, correct? A. You're correct. Q. Does the dispatch training

-- orthe hazmat training that's done for the dispatch employees, is that different from the hazmat training that is done for the pilots?

A. The sametraining. Q. Are you familiar with the allegations in this complaint?

A. Some. Q. Okay. Tell me what you're familiar with. A. The only thing I'm familiar with would be the implementation ofour new hazard material NOPC forms thatwe implemented, some changes thatwe had to make. And I know that some ofthe hazmatforms were incorrectly completed.

Q. Okay. What type ofchanges did you make to your NOPCforms?

A. We- basicallythe coupon thatUPS gives us we made exact- I won't say exact, but carbon copy ofwhat they have so it's easier to locate the informationthat thepilot needs in order to puton theform. We also addedthe packing group. Basicallyjustthe format of the form.

Q. Did you make any other corrective action after 34 this complaint was filed orthe inspect

-- withdraw that question. Did youperform any othercorrective action after the inspection occurred? MR. DWORKIN: Talking about him personally
orMartinaire? MR. ARCHIER: Martinaire. A. Define corrective action. Q. (BY MR. ARCHIER) Any changes afterthe inspection.

A. Absolutely. I believe I juststated thatwe did the form.

Q. Okay. A. We revitalized the form, let's say. We did corrective interviews with the pilots thathad specific problems on our-- during ourinspection. We retrained all ofyour pilots, which bythe way, we do every 12 calendarmonths. The regulation requires 24 calendar months. We trained our dispatchers. We reviewed our hazmattrainingprogramto ensurethatitwas up to date, complete with everythingthatwe needed to teach. And we implemented those immediately. MR. DWORKIN: Let me point out something. MR. ARCHIER: Mr. Dworkin, I'd appreciate it 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ifyoujustlet the witness-- MR. DWORKIN: That's fine. MR. ARClllER: --talk. I mean ifyou would like to have a conversation withme offthe record-- MR. DWORKIN: That's fine. Go right ahead. MR. ARClllER:

-- I'd be gladto

-- MR. DWORKIN: No. 35

Q. (BYMR. ARCillER) Does Martinaire engage in any type ofaudits to the NOPC forms otherthan whatyou've previously toldme?

A. The company's NOPC forms? Q. Yes. A. Any othertypes ofaudits? Q. Correct. A. Company audits? Q. Correct. A. They

- no. Ofcourse I auditthem. Our dispatchers auditthem when they are called in. Other than whatI've previously stated, no.

Q. No otheraudits, okay.

Mr. Smith, do you get involved inthe day-to-day financial business operations ofMartinaire?

A. No, sir. Q. Are you familiar with any ofthe previous hazardous material violations ofMartinaire?

A. No, sir. Notthat I can recall. MR. ARCillER: I want totake a break for five minutes. MR. DWORKIN: Sure. Thatwould be fine. (Breaktaken from 10:01 a.m. to 10:15 a.m.) (ExhibitNo. CS-1 marked.) 36

Q. (BYMR. ARCillER) Mr. Smith, I'm goingto show you what has been marked as Exhibit CS-1. Take a look at it for a moment. This is the Amended Second Notice ofDeposition. Have you ever seen this document before?

A. No, sir. Q. Okay. Thank you. MR. ARCillER: Ms. Court Reporter, I'd like to have this document marked as CS-2 for identification. (Exhibit No. CS-2 marked.) Q. (BY MR. ARCillER) I'm showing you Exhibit CS-2 for identification, Mr. Smith. Please take a momentto look at it.

A. (Witness complies.) Okay. Q. Have you everseenthis document before? A. I've seen the e-mail. Q. Yes? A. Yes. Q. Tell us, what is it? A. Basically it'spartofthe effortin retraining 

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. 25 in basically notice ofthe pilots. Sothe new NOPC forms, how to fill them outlegibly and completely and, again, likeI said, all their l's are dotted and T's are crossed.

Q. Did youhave any input indraftingthis e-mail? A. Yeah. I wasthere. Q. When you say you were there, what doyou mean you were there?

A. I was watchingthe chiefpilot type itup and making sure he didn't miss anything thatI could think of.

Q. Okay. Did you have any specific inputthat you recall about this e-mail?

A. You know, itwas so long ago, nothing specifically thatI can bring to memory.

Q. Okay. Now, I noticed it says "to," and "to" is this --the names that are e-mails here, are these all thepilots?

A. Itlooks like it. Q. Okay. Are there any otherpeople here who are notpilots?

A. The names thatI see are all pilots. Some ofthe e-mail addresses, ofcourse, don't have the names associated with them, so I couldn't answer for those.

Q. Okay. Now, I noticedthe e-mail is addressed to 38 all pilots and flight followers. Whatis meantbythe term "flightfollowers"?

A. Dispatchers. Q. Dispatchers? A. Um-hmm (affirmative). Q. And howmany dispatchers would that have gone to? A. All ofthem, it should have been. Q. All ofthem, okay.

On the third paragraph there's a sentence that reads

-- ifyou take a look atthat, that says, "Please make sure you fill outthe NOPC form completely and legibly. Underno circumstances are youto be rushed by UPS orDHL." Tell me how thatplays out. Does UPS orDHL, have they rushed the pilots inthepast?

A. Well, ittakes time to fill outthe NOPC form, checkit, call in, and make sure dispatch checks it and then putitin their records before we can even start the aircraft up, right? So UPS and DHLwants us off their ramp as quick as possible. Butbecause we haveto abide by rules and regulations, we tell the pilots, Don'tfeel rushed at all. Ifyou start to feel rushed, tell the UPS that they can't interfere with the duties as a crew member because it's againstregulation. Ifthey give you any 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 problems, takeyour time, fill outyour hazmatform, pickup the phone, call myself, MikeBates, dispatch, or Alan Rusinowitz.

Q. Okay. When UPS has exerted any type ofpressure, have they donethat directlyto the pilots?

A. Speaking on personal experience? Q. Yes. A. Yeah. They

... Q. Who in UPS or DHL

-- I mean who would say something? I mean whatposition?

A. Usually itwould bethe

- like the ramp supervisoron the ramp whereveryou'relocated.

Q. Okay. A. The person that's in charge ofgettingthe aircraftloaded and getthem offthe ramp.

Q. And generally whenyou fly, youhave to fill out
a NOPC form yourself, correct?

A. Absolutely. Q. Okay. Howlong does ittake youto fill out a NOPC?

A. Depends on howmany hazmats I have. Q. Okay. Let'sjust say you have two hazmats? A. Two? Ninety seconds. Q. Ninety seconds. Okay. A. Approximately

-

Q. Right. A.

- 90 seconds. Q. Okay. So are the UPS and DHL saying spending 2 minutes or 90 seconds to fill out a NOPC is too long? 40

A. Depends on the ramp supervisor, depends on ifUPS is running late. There's a lot ofvariables, so I can't
answer that definitively.

Q. Okay. Now, when the pilots are filling outthe NOPC forms, do they have a dangerous goods manual at their disposal, or are theyjustreading directly from the hazards material shipment itself?

A. They have to carrya emergency response handbook,
an ERGbook. They do not have theA.I.R. dangerous goods manual in front ofthem, but that's the reason they call them in to our dispatch facility, and our dispatchers are on thephonephysically checkingthe hazmats, which takes additional time, in orderto ensure thatthepackage is legal to be carried on board aircraft.

Q. And the dispatch personnel wouldhave a hazardous material, dangerous

-- the hazardous material regulations in front ofthem?

A. As previously stated, yes, sir. Q. Okay. Now, turn to the nextpage. There's a sentence

-- and I think it's the third sentence from the 

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# c FEDERAL A41tATION ADMINISTRATION 

### v. JltiNAIRE 

### Deposition of: CORY SMITH 

### 5/15/2013 11 (Pages 41 to 44)

1 2 3 4 5 6 7 B 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 41 43 bottom. "When calling in information from the NOPC, do 1 Q. Ifnotmore often than that? not get complacent or lazy. An error on this fonn 2 A. Yes, sir. equals a violation or a fine." 3 Q. Okay. And you said that dispatch training is

A. Um-hmm (affirmative). 4 abouttwo hours long? Q. Has it been your experiencethat some ofthe 5 A. Yes, sir. pilots have gotten complacent orlazy? 6 Q. Okay. And that dispatch training, is that

A. No. Not especially when it comes to hazmat, no. 7 training that is submitted to the FAA for review? I Q. Okay. B mean has FAAreviewed that type ofhazmattraining? A. The reason that's putin thereis thatwe-- 9 A. Well, it'sthe same trainingthatthe pilots are pilots do become complacent and lazy on certain items. 10 given, which has to be reviewed and

- reviewed by the I've never seen one on hazmat. 11 FAA and approved by the FAA, so they have seen the

Q. Okay. Now, at-- the last sentencehas, "Amore 12 program,yes. detailed e-mail with complete instructions will be sent 13 Q. Okay. And would thatprogrambereviewed by out within the next few weeks [sic]." 14 flight standards, orwould itbe reviewed by the

A. Um-hmm (affirmative). Afew days. 15 hazardous material group? Q. I'm sorry. Within the next few days. Are you 16 A. Itwould bereviewed by ourPOI. familiar with that e-mail? 17 Q. Okay. Who is yourPOI?

A. I don't recall. 18 A. Now? Q. Okay. You don'trecall whatthat e-mail would

-- 19 Q. Yeah. A. I don't recall. It'sbeen two years. I'd have 20 A. Jeremiah Solis. to see thee-mail. Maybe itwilljogthe memory. 21 Q. Okay. Take a look atpage 2, the bottom. MR. ARCHIER: Ms. Court Reporter, wiii you 22 There's a signature. Whose signature is that? markthis as CS-3 for identification, please. 23 A. I'm not going to say definitively, because it's (ExhibitNo. CS-3 marked.) 24 notmine. I know that much. Q. (BY MR. ARCHlER) Take a moment, Mr. Smith, and 25 Q. Okay. Is there a list ofpeople whose signature 42 44 look atExhibit CS-3. 1 that couldbe?

A. Yes, sir. (Witness complies.) Okay. 2 A. Well, there's only one otherinstructor atthe Q. Okay. Whatkind ofdocument is this? 3 time. A. It's a documentoftrainingrecord thatthe 4 Q. And who would thatbe? dispatchers, flight followers and

- received. 5 A. Mike Bates, chiefpilot.

Q. Okay. Now, I notice there's a signature 6 Q. Mike Bates. Okay. And whatis the title of "manager/instructor." Whose signature is that? 7 Kathy Preston? On this sheet it says -- what does that

A. On the first page? 8 title mean? Q. On the first page. 9 A. She's a Lansing station manager. A. That's my signature. 10 Q. Is that outofLansing? Q. Okay. And does this

-- your signature indicate 11 A. Lansing,Michigan. thatyou administered this particularhazmattraining to 12 Q. Yeah. So is she located in Lansing, Michigan? these people? 13 A. She was.

A. That's whatthe signature entails; that's 14 Q. She was. She's no longerthere? correct. 15 A. She's no longer employed with Martinaire.

Q. Okay. And would this training to these

-- this 16 Q. Okay. Can you-- there are three names onpage personnel, would this have beenthe PowerPointhazrnat 17 3, andthey're listed as flight coordinator. Where are training that you talked about earlier? 18 thesepeople located at?

A. Yes. Yes, sir. 19 A. Theywere located in Lansing, Michigan. Q. Okay. Now, youindicatedyou give this 20 Q. They're no longerin Lansing, Michigan? PowerPointtraining todispatchpeople on a 12-month or 21 A. No, sir. We no longerhave flight coordinators armual basis? 22 in Lansing,Michigan.

A. Yes, sir. 23 Q. Didyou close down that operation? Q. Okay. 24 A. No, sir. The operation shrunk, shall we say. A. Ifnot more often than that. 25 Q. Whatdoyoumean bythat? U.S. LEGAL SUPPORT

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### FEDERAL

# A~ATION ADMINISTRATION v.

# ~NAIRE Deposition of: 

### CORY SMITH 5/15/2013 12 (Pages 45 to 48)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 45 A. It's a smaller operation nowthan it was atthe 1 time of2011. 2

Q. Why is that? 3 A. We lost some routes in that area. 4 Q. Okay. Didyoulose those routes from DHL orUPS? 5 A. UPS. 6 Q. Is there any reason that-- was itjusta 7 shrinkage inbusiness from you? 8

A. I don't have the answer for that. 9 Q. Okay. Now, I'mjustcurious. There are flight 1o coordinators in other areas ofyourcompany, correct, 11 that still work for Martinaire; is that correct? 12

A. That is not correct. 13 Q. That's not? There areno flight coordinators 14 that work for Martinaire anymore atall? 15

A. Other than the dispatchers, no. 16 Q. Okay. Butwas a flight coordinator similarto a 17 dispatcher? 18

A. No. 19 Q. Okay. Howdid the duties of-- what were the 20 duties ofa flight coordinator? 2 1

A. The flight coordinator, urn -I'mnot a flight 2 2 coordinator so I'm not goingto speculate on whattheir 23 duties were.

Q. Okay. Youdon'tknow. Whose signature is that 46 24 25

atthe bottom onthis page? 1

A. Kathy Preston. 2 Q. Is she locatedwhere? Was she located in 3 Lansing? 4

A. She was located in Lansing. 5 Q. Okay. She's no longerworking for Martinaire? 6 A. No, sir. 7 Q. Okay. 8 MR. ARCHJER: Ms. CourtReporter, please 9 markthis as CS-4 for identification, please. 1 o (Exhibit No. CS-4 marked.) 11 Q. (BYMR. ARCHJER) Take a moment and look at 12 Exhibit CS-4, Mr. Smith, andwhenyou're finished 13 looking at it, raise yourhand-- I meanletmeknow. 14 MR. DWORKIN: Right orleft? 15 A. (Witness complies.) Okay. 16 Q. (BYMR. ARCHJER) Okay. 17 A. I'm ready. 18 Q. Mr. Smith, whatis this document? 19 A. Itis the old NOPC form. 20 Q. Whenyou say the oldNOPC form, what do youmean 21 bythat? 22

A. I mean it's the old form. Q. Okay. Old as far as... A. It's no longer in use. How about that? 23 24 25 Q. When did it stop being inuse? A. The day ofthe audit thatwe had. Q. Okay. And sohow soon afterthis form ceased being used didthenew form go in existence?

A. Immediately. Q. Immediately? A. Yeah. We stopped usingthis form, immediately used anotherform.

Q. Okay. Now, with regardto thenew form that's in existence, how does thatnewform differ from this form? 47

A. It's moreuserfriendly. There are only two packages perbox instead ofthree now that are allowed to be copied onto thepage. The format is different. Thepackinggroup has been added. There's now more choices on quantity and weight.

Q. When you say it's more user friendly, what doyou mean?

A. Again, as I previously stated, thenew form is pretty much the carbon copy ofthe coupon that is given to the pilot bythe shipper, UPS, DHL. Actually, UPS. That's ourprimary customer. And it's easierto identify whatis required on the document, on the NOPC by looking atthe coupon that UPS gives us. Does that make sense?

Q. Yeah. Ijustwanttomake sure, clarify

something. When you say coupon, you mean hazardous material shippingpaperthat you get?

A. The hazardous material shippingpaperthat I get from UPS, yes.

Q. Okay. And so the new form only has two hazardous material shipments listed asopposed to three or-- hazardous material shipment; is that correct?

A. You are correct. Q. Andyou said that there was a format changeunder your new hazmat form, correct?

A. Yes, sir. Q. Tell me about that format change. A. Well, there's more space to write now. The

- 48

where the trackingnumber would belocated on this form,
we would have theproper shipping name. Underneath would betheUN ID number, the hazard class, packing group. Underneath that would be quantity. I'm doing this from memory, okay?

Q. Okay. A. Emergency contactis where it's located. Location ofthehazardous material package on board the aircraftis the same. And, again, like I stated before, thatthe quantity, there's more options there. For instance, you know, kilograms, millimeters, milliliters have been added to more ofa selection. 

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### FEDERAL

# ~ATION ADMINISTRATION v. JltiNAIRE Deposition of: 

### CORY SMITH 5/15/2013 13 (Pages 49 to 52) ( 51 49



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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Do the pilots like the new form better? A. Putitthis way, itseems to workbetter. Q. Okay. Does that dispatch-- does it workbetter for dispatch too?

A. Itseems to. Q. Okay. And you're basingthat on your audits? A. I'mbasing that on my audits and my observations. Q. With regardto CS-4, do you recognizethe signature at the bottom ofthe page?

A. I do not. Q. Do you recognize the handwriting on this page? A. I do not. Q. Okay. Just looking atthis CS-4,justreviewing it, do you see any problems with the proper shipping name?

A. Yeah. Q. Okay. Whatproblems do you see with the shipping name?

A. First one, there is no propershipping name. Q. Okay. Now, how would a situation like this occur where there's no shipping name at all put in? I mean wouldn't apilot call somebody, orhow would that happen?

A. Can you rephrase the question? Q. Yes. It's kind ofunique that youwould have 50 hazardous material on board, butyou don't have a shipping name; would you agree?

A. I would not. Q. Whatdo you mean bythat? A. Because it wouldn't be on board. Q. Sohow do you explain the fact that we don't have
a shipping name on this form?

A. I can't answer that question. Q. Okay. A. Because I don't know. Q. You don't know. Okay.

Ifyou take a look at the second box, it says there's a proper shipping name, and it's called "Boehringer." Doyourecognize that hazardous material?

A. I do not. Q. Okay. All right. Ifyoutake a look at the third box, there's a proper shipping name listed as "JCAH." Do you recognize that hazardous material shipping name?

A. I do not. Q. Okay. IfI wanted to find outthe name ofthe dispatch operatorthat completed this NOPC form, how would I go about doing that?

A. This form here? Q. Yes. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 p 18 19 20 21 22 23 24 25 A. At this moment, I don'tknow. Q. Okay. If-- from the information that's listed here, would you be able to trace the pilot who calledin this NOPC form?

A. Yes, Q. Okay. How would you be able to do that? A. There's an employee number on the top right of the form.

Q. Okay. And what steps would you have to take to get that employee's name?

A. I can - we have a computerprogram that has all the pilots' names and employee number, and I can easily look his name up on the computerprogram. And I have a list ofpilots' names in my office and their employee numbernext to their name. It's pretty easy.

Q. Do you recognize from the employee identification number who

-- which pilot that is?

A. No, sir. Q. But this NO.PC would be the handwriting ofa dispatch operator, correct?

A. I'm not going to speculatebecause I don't review handwriting, you know? I mean I don't study it, whose is whose.

Q. Okay. Butthis wouldn'tbe the handwriting ofa pilot, though, correct?

A. Again, same answer. I can't answer that definitively.

Q. Okay. MR. ARCHIER: The last document was C-4, right? Would youplease have this marked as C-5, please?(ExhibitNo. CS-5 marked.)

Q. (BYMR. ARCHIER) Take a moment, please, Mr. Smith, and look at Exhibit C-5 for identification. When you're finished looking at it,justraise your head.

A. (Witness complies.) Okay. Q. Okay. Whose signature is that at the bottom, the captain's? You can'trecognize

--

A. I can'trecognize the signature. 52

Q. Okay. Do yourecognize any ofthe handwriting on this page?

A. No, sir. Q. Okay. But ifneeded, you couldidentify who that pilot was from your list, though, employee ID's, correct?

A. I can identify the pilot, yes. Q. Yes, okay. A. Not the dispatcher. Q. Right. Is there any way ofidentifying the 

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### FEDERAL

# A~ATION Deposition of: CORY SMITH ADMINISTRATION v. 5/15/2013 14 (Pages 53 to 56)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 53 55 dispatcher at ail? 1 A. I've never seen one.

A. Onthis form? 2 Q. Okay. Q. Yeah. 3 A. Never had to ship or fly a package that required A. No, sir. Well, other than the signature, no, 4 it. sir. 5 Q. Okay. Now, I also notice on this particularform

Q. Okay. Is the

-- the signature at thebottom, 6 there's a "location on board aircraft" that says "zone that wouldbe the dispatcher's signature? 7 4"?

A. What's it say? It says captain or dispatcher. 8 A. Okay. Yes, sir. Q. Right. Sowouldyouhave a captain that wouldbe 9 Q. Okay. Whatdo they meanby zone 4? signing atthe dispatch office? 10 A. Well, the

- in this case it's a Metroliner. All

A. No, sir. 11 the aircrafts have different zones, loading zones - Q. No, sir. Sothis wouldbe

-- so are you saying 12 Q. Okay. this wouldhave to be a dispatch person's signature? 13 A.

-- in which freight is stacked, loaded. A net

A. I guess so, yes, sir. 14 goes up that keeps the freight from shifting, and that Q. Okay. Take a look atthe first category, the 15 would be the 4th zone. shipping name, "paint." 16 Q. Okay. Howmany zones are there on a aircraft?

A. Okay. 17 A. Depends on the size ofthe aircraft. Q. Doyou see any problems with that shipping name? 18 Q. Howmany zones are there on the aircraft that you A. Nope, no, sir. 19 fly? Q. You don't see anyproblems with that shipping 20 A. Which one? name? Ifyou needto look atthe coupon, youmay. 21 Q. That Martinaire flies.

A. Paint. It's paint. P-A-1-N-T, P-A-1-N-T. 22 A. Wefly two different types. Q. Okay. Do you see anyproblems at all with the UN 23 Q. And the two different types ofaircraft, can you identification information that wasprovided? 24 give metheirnames again?

A. ldo. 25 A. Beech 1900 and a Cessna Caravan. 54 56 Q. Okay. What do you see? 1 Q. So on the Cessna Caravan, how many zones are A. UN ID numbers do not match. 2 there? Q. Explain thattome. 3 A. Six. A. Well, the UN ID number for paint-- by the 4 Q. Six zones? shipping paper, 1263 is the number, and on the NOPC, 5 A. Yes, sir. it's written as 1245. 6 Q. And how many ofthose zones can youputhazmat

Q. Okay. Sothe UN ID number should have been 1263? 7 in? A. Thatis correct. 8 A. Any ofthem. Q. How would somebody come up with 1245? 9 Q. Any ofthem? A. Maybe there's more than one hazmat coupon. I 10 A. Um-hmm (affirmative). don't know definitively, to behonestwith you. 11 Q. Okay. And on the Beech 1900, how many zones are

Q. Okay. 12 there? A. I mean maybe he was- honestly, I don'tknow. 13 A. There are -- on paper there's seven. Q. Okay. Whatwere you going to say? Maybe hewas 14 Q. Okay. What do you mean bythat? what? 15 A. The -there's an STCfor the cargo conversion of

A. Well, I'll retractthat. 16 the aircraftwhich allows you to have an extra zone Q. Okay. On this page there's a box that's marked 17 starting at zone one. Ours would begin atzonetwo special permit requirement. Doyou see that? 18 because we have ajump seatin zone one.

A. Yes, sir. 19 Q. Okay. And can hazmatbeputin any ofthose Q. What's thatreferenceto? 20 zones from two onto seven? A. You have to have a special permit to requirethe 21 A. Correct. hazmat on board. 22 Q. Okay.

Q. When wouldthat arise? 23 A. And they can puton any ofthemthat Martinaire A. Ifthe hazmat shipmentrequired one. 24 is allowed to fly, the hazmatthatMartinaire can fly. Q. Okay. 25 Q. I didn'tunderstand that. 

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# (_ FEDERAL

# A~TION ADMINISTRATION v. 

### MA41tNAIRE Deposition of: CORY SMITH 5/15/2013

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 57 A. The-- there's a regulation for transportindex ofradioactive material.

Q. Correct. A. Ifyou go above a certain number, you have to have distance requirements from the crew. We don't carry above thatlimitation.

Q. Do you know whatthat limitation is? A. Ido. Q. What'sthat? A. 50TI. Q. Okay. Doyoucarry very much radioactive material?

A. No, sir. MR. DWORKJN: That'sjusta natural glow, right?

A. Am I glowing? Q. (BY MR. ARCHIER) I noticed on this form that it's marked "passengeraircraft"?

A. Where are you, sir? Q. I'm at-- A. Yes, sir. Q. Why is this marked passengeraircraft? A. Some hazardous material is allowed to be carried
on passenger aircraft. Some hazardous material can be carried only on cargo-only aircraft. 58

Q. Okay. So this particularhazmat couldbe carried
on passenger aircraft. Is that whatthe reference means?

A. You know, withoutthe actual hazardous material shipping papers, instead ofthis copy, I can'tgive a definitive answer.

Q. Okay. So you're saying you-- this coupon right here or-- and I'm referringto this as a coupon -- doesn't give you enough information to answerthat question?

A. You're correct. Q. And you would need the hazardous material shipping paper?

A. From theinformation thatyou're giving me, yes. Q. Okay. And when you -- when --this coupon, you getthe couponthat's attached from UPS, correct?

A. The hazardous --the shipping papers? Let's be
on the same page.

Q. Okay. A. Because earlierI was referringto itas a "coupon," you were "shippingpapers."

Q. All right. I'm referringto this documentthat's page 2 ofthis NOPC as a coupon or a hazardous material shippingpaper.

A. We do not getthatpage. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 

### 15 (Pages 57 to 60)

Q. Oh, you don't get this page? A. Thatpagedoes notcome to us. Q. Okay. Where does this --whereis this page generated from?

A. You gave me the form. I'm not sure. Q. Okay. So you're not sure where this is

-- so all you see really is the hazardous material shipping form?

A. Shipping

-- Q. Shipping paper, rather. A. Yes, sir. Q. And you get that hazardous material shipping paper from UPS?

A. You arecorrect. Q. And that hazardous shippingpaper is how your pilots fill out the NOPC form?

A. That is correct. Q. Okay. Thank you. A. Oh, sorry. MR. ARCHIER: Ms. Court Reporter, would you mark this as Exhibit CS-6. (ExhibitNo. CS-6 marked.) 59

Q. (BY MR. ARCHIER) Take a moment and look at CS-6, and when you're finished, Mr. Smith, pleaseraise your head and let me know.

A. (Witness complies.) Okay.

Q. Okay. I want to start from page 2 again ofCS-6. A. Okay. Q. Have you ever seen this document? 60

A. It's the same document otherthan the different hazardous material thatyou previously gave me. So same answer is: No, sir, not this particularpage.

Q. Okay. Would you have any idea how this document
was generated?

A. I assume- you know, what? I retractthat. I'm not goingto assume anything. So no.

Q. Okay. Let's take a look at CS-6. There is a captain's ordispatcher signature at the bottom. Do you recognize that signature?

A. No, sir. Q. Okay. Do you recognize any ofthe handwriting on this document?

A. Again, I don'tmemorize handwriting, sir. So, no, sir.

Q. Okay. Do you-- you wouldbe able to find out who this employee is from this employee identification number, correct?

A. I could find outwho the pilot was. Q. Who the pilotis? A. That's correct. Q. Okay. Butyou would notbe able to trace who the 

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# ( FEDERAL

# ~ATION ADMINISTRATION v. JIPINAIRE Deposition of: 

### CORY SMITH 5/15/2013 16 (Pages 61 to 64)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 dispatchperson was? A. Offthis particular form, no. 61
1 2 Q. Okay. Now, let me askyou a question. Is there 3
a possibility thatwhenthe pilotis calling this 4 information to dispatch thatthe pilot could communicate 5 the correctinformation to the dispatch office, and the 6 dispatch office could incorrectly transcribe it? 7

A. Askthe question again. 8 MR. ARCHIER: Can you repeatthe question, 9 please. 10 (Reporterread the requested portion. 11 Q. (BY MR. ARCHIER) Do youunderstand that 12 question? 13

A. I do. I'm tryingto askifyou are specifically 14 talking aboutthe procedures that are in place now orin 15 6/6 of2011. 16

Q. Let's focus on 6/6 of2011,and then we'll go to 17
nowlater. 1 8

A. Okay. So atthe timeis itpossible thatthe 19 numbers can be copiedincorrectly by dispatch? 2 0

Q. Yeah. 21 A. Possibly. 2 2 Q. Okay. Now you're telling me thatthat's 2 3 something that couldn'thappen, correct?

A. Yes, sir, itcan't happen. 62 24 25

Q. Why can't that happened now? 1 A. Again, as I stated earlier, the dispatchers check 2 the proper shippingname-- all the information that's 3
on theNOPC against the dangerous A.I.R. goods shipping 4 book as we previously weretalking about,before the 5 pilot can even load the freight on board and fly away. 6

Q. Okay. Without the hazardous material shipping 7 paperin front ofyou, is there any way oftelling

-- of 8 you telling that the hazardous material information is 9 correct on this form? 1 0

A. Right now? 11 Q. Yes. 12 A. Not without a bookin front ofme, no. 13 Q. So you'd need the 49 CFR? 14 A. No, sir. 15 Q. What would youneed? 16 A. I need the A.I.R. Shipper's dangerous goods air 17 shipmentmanual

-- I don't rememberthe title ofthe 18 book offthetop ofmy bead. 19

Q. Okay. Yeah. Butifyou hadthe hazardous 2 0 material regulations, you would also be able to 2 1 determine ifthe proper shipping name was correct, right?

A. I don'tbelieve it's in 49 CFR. Q. Okay. 22 23 24 25 63 MR. ARCHIER: Can I have this marked as CS-7. (ExhibitNo. CS-7 Marked.)

Q. (BY MR. ARCHIER) Mr. Smith, I'm showing you CS-7 for identification. Take a moment and look at it, please, and when you're finished, letme know.

A. (Witness complies.) Okay. Q. Okay. You recognize this as the Notification of Pilot-in-Command form that was in effectpreviously with Martinaire, correct?

A. I do. Q. Okay. Now, let's take a look at the top lines. I noticed that there's no date that's written in. You
see that?

A. Ido. Q. Why would there be no date written in? A. I don't have an answerfor that. Q. Why would there be no flight number written in? A. Again, no answer for the top line notbeing completed.

Q. Okay. So you would agree with me that the aircraft tail number shouldbe

-- there should be a tail number written in on this document?

A. I would agree. Q. And you agree there should be apilot-- I mean a

pilotemployeenumber written also?

A. Again, it's part oftbetop line, so I agreewith you.

Q. Okay. All right. Now, attached are -- to this 64

on page 2 and page 3 are two hazardous material shipping papers. Now, this is whatyou were describing as hazardous shippingpaperonpage 2, correct?

A. Yes. This is a DHL shipper's declaration page. Q. Howcan youtell from looking at this it's a DHL shippingpage?

A. I seen it before from DHL. Q. Okay. Now, ifyoutake a look at the thirdpage, that's also a hazardous material shipping document, correct?

A. Thatis correct. Q. Okay. Now, theproper shipping namethat's listed here in yourNOPC form doesn't-- isn'tthe same as the proper shipping name on the hazardous material shipping document; is thatcorrect?

A. No, sir. Q. Okay. Butthatproper shipping name should be the same as what's on the hazardous material shipping?

A. It should beverbatim asthe shippingpaper, yes. Q. Okay. Andthe UNID identification number should be the same as what's on the hazardous material shipping 

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# (

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# "-- FEDERAL JltATION ADMINISTRATION Deposition of: CORY SMITH v. 

### .INAIRE 5/15/2013 17 (Pages 65 to 68)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 65 67 paper; is that correct?

A. Thatis correct. Q. Okay. Andthat UNidentification number should be UN 1268?

A. That's what's on the page. Yes, sir. Q. Now, as far as the class is concerned, I noticed the class is marked correctly as hazardous class 3. There's a packing group marked, but I don't see any packing group. Is that why this form was amended

-- there's no space for packing group on this form; is that 1 2 3 4 5

. 6 7 8 9 10 correct? 11

A. Thatis correct. 12 Q. Okay. Andthat's why you changed your form, your 13
new form?

A. That's a reason why the form was changed. Q. Any otherreasons? A. Well, I believe we previously covered those. Q. Okay. All right. Now, I notice that there's a packing instruction.

A. Yes, sir. Letme get-- okay. Q. Okay. Is there anywhere onyourform that that packing instruction would go?

A. Can you show me whereyou're looking at? Q. Ifyou look on the hazardous material shipping form, across from quantity, I Fibreboard, 19 liters, 66 14 15 16 17 18 19 20 21 22 23 24 25

right nextto it is packing instruction. 1

A. Right here? 2 Q. No. Righthere. 3 A. Oh, I'm sorry. 4 MR. DWORKIN: 3-5-5. 5 MR. ARCHIER: 3-5-5. 6 Q. (BY MR. ARCHIER) Is there any place on yourform 7 for the packing instruction? 8

A. No, sir. 9 Q. Doyou know the significance ofthe packing 10 instruction? 11

A. I don'tbelieve it's required to be on the form. 12 Q. It's notrequiredto be on the form? 13 A. I believe it's notrequired to be on the form. 14 Q. Okay. Okay. Now, looking at this document 15
across from the second

-- the second shipment is

-- if 16 you look atthe third page -- 1 7

A. Okay. 18 Q. --theproper shipping name ofthe hazardous 19 material on the thirdpage is "Petroleum Distillates, 2 0 n.o.s., Super Agitene," correct? 21

A. Thatis correct. 2 2 Q. Now, thatproper shipping name is not written on 2 3 the NOPC form, correct? 24

A. Again, notverbatim. 2 5 Q. Right. And that's an errorwhen it's not verbatim, correct?

A. You are correct. Q. Okay. So either dispatch made amistake orthe pilotmade amistake?

A. The pilot made a mistake in this instance

. Q. Pilotmade amistake in communicating that? A. I would agree. Q. It says location onboard aircraft "POD A"? A. Yup. Q. What does that mean? A. PodA. Q. Is that a certain area, zone? A. It's a - a pod is a --it's a structurethat's secured to the bottom ofthe aircraft that has doors thatopen and close, and you have different zones, which
we called pods, underneath the aircraft so it's not confused with zones. And Pod A would be the first zone in the pod. It'skind ofhard to explain.

Q. Butthis is an area-- A.

-- where freight can go. Q. Okay. Oh, underneath? A. Underneath the aircraft. Q. Oh,Okay. A. With a --in a Caravan; that's correct.

Q. Do you have pods on both the Beech and the Cessnas?

A. Not the Beech,justthe Caravan. It'sjustthe Cessnas.

Q. Just the Cessnas. 68

Now, I'm looking down belowthe third marking for hazardous material. It's RAMTI in "location." Whatdo youmean by RAM TI?

A. Radioactive material is RAM. Q. Right. A. Tl is transport index. Q. Okay. And you've gotPOD A. Would that have meant that there was radioactive material onboardthis aircraft?

A. No, sir. Q. Okay. Now-- okay. In the total number of hazardous material package on board the aircraft would have been seven according to this document, ifyou look
across POD underRAM?

A. Itlooks like "2" to me. Q. Is that a 2? Okay. A. I mean, again, I don't study handwriting. Q. Right. I understand. Okay. Now, I noticed that the emergency contactnumber

--

A. Yes, sir. 

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# ( FEDERAL

# A~ATION Deposition of: CORY SMITH ADMINISTRATION v.

69 1 Q.

-- onthis form, doyouknow where thatnumber 1 2 callsto? 2 3 A. CHEMTREC. I would assume. 3 4 Q. Okay. It's CHEMTREC. Okay. Now, do you 4 5 sometimes listthe dispatch number in there, that 5 6 emergencyresponsetelephone number? 6 7**~~*** 7 8 Q. Okay. Youalways list-- 8 9 A. Whatever's on the- 9 10 Q.

-- whatever is on that shipping, onthat hazmat 1 0 11 document? 11 12 A. That's correct. 12 13 Q. Okay. 13 14 MR. ARCHIER: Would youmark this as CS-8, 14 15 please. 15 16 (ExhibitNo. CS-8 marked.) 16 17. Q. (BY MR. ARCHIER) Take a moment, Mr. Smith, and 1 7 18 look at Exhibit CS-8. When you're finished, raise your 18 19 head. 19 20 A. (Witness complies.) Okay. 2 0 21 Q. Okay. All right. Looking atthe proper shipping 21 2 2 name in Exhibit CS-8, Mr. Smith, are you ableto tell if 2 2 23 thatproper shippingname is incorrect? 2 3 24 25

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. It's abbreviated. Withoutthe Shipper'sbookin front ofme, not atthis time. 70 24 25

Q. Okay. So without the Shipper's book orwithout 1 the hazmatpaper, youwouldn't be able to tell whether 2 that shipping name is correct? 3

A. Not definitively. 4 Q. Yeah. But in any event, you don't

-- your 5 company doesn't allow abbreviations ofhazardous 6 material names; is that correct? 7

A. Not since

-- that's correct. 8 Q. Take a look at the captain's ordispatcher's 9 signature. You don'trecognize that signature, doyou? 1 o

A. No, sir. 11 Q. Do yourecognize the handwriting onthis 12 document? 13

A. No, sir. 14 Q. Okay. 15 MR. ARCHIER: Mark this as CS-9, please. 16 (ExhibitNo. CS-9 marked.) 1 7 Q. (BYMR. ARCHIER) Take a look atpage 1and 2 of 18 CS-9, please.

A. Yes, sir. (Witness complies.) Okay. Q. Okay. Tumto page 2 ofCS-9. A. Okay. Q. Doyourecognize page 2 ofCS-9, Mr. Smith? A. No, sir. Q. Okay. And you've never seenthat document 19 20 21 22 23 24 25 

### 5/15/2013 18 (Pages 69 to 72)
71 attachedto CS-9, haveyou? I meanthis is yourfirst time seeingpage2 ofCS-9?

A. You are correct. Q. Okay. Now let's go to page I ofCS-9. There's a signature at the bottom, "T Peffers"?

A. Okay. Q. Do youknowthatperson? A. I know a person with the first name ofstarts with T and last name ofPeffers, yes.

Q. Pfeffers, okay. A. Pfeiffers (phonetic), Pfeffers. Q. Okay. What's the first name ofthatperson? A. Todd. Q. Todd. Andhowdo you spell theperson's last name?

A. I don't know him that well. Q. Okay. A. I'll be speculating. Q. Okay. But it's pronounced-- that lastname is pronounced Peffers? Pfeffers?

A. Pfeffers. That's how I've always pronounced it. Q. Pfeffers? A. Pfeffers. Q. Okay. Soheresponds to Pfeffers? A. Sure. He responds to Todd. I can tell you that

much.

Q. All right. Okay. But do you know Todd Peffers well enough to recognize his handwriting?

A. No,sir. Q. Okay. And you don'tknow specifically whether this is Todd Peffers' handwriting, correct?

A. I'lljust answer thatquestion: No, sir. Q. Okay. All right. Are you able to tell whether there are any irregularities on this particular document with the proper shipping name?

A. One. Q. Tell me what you recognize. 72

A. The "NOS" is missing as well as the- I can't pronounce thatword. Let's see. Diphenylphosphoryl azide? I guess howyou would pronounce that, that's in parentheses.

Q. Yes. A. That should be included. Atleastthat's what we teach.

Q. Okay. Do you-- are there any other irregularities thatyou see?

A. The hazard class on the second page states that it's a 6.1. And there's hazard class of5.1 written on the NOPC.

Q. Okay. 

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### FEDERAL

# A~ATION ADMINISTRATION v.

# ~INAIRE Deposition of: 

### CORY SMITH 5/15/2013 19 (Pages 73 to 76) ( 75 73 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 

# ( 24 25

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. DWORKIN: Do you need to take abreak? THE WITNESS: I need to go to the restroom. MR. ARCHIER: You wantto take a break? THE WITNESS: Yeah. MR. ARCHIER: Let's take a break. (Break taken from 11: 15 a.m. to 11 :30 a.m.) (Exhibit No. CS-10 marked.) Q. (BY MR. ARCHIER) Mr. Smith, please take a moment to read Exhibit CS-10. When you're finished, please let
me know.

A. Okay. (Witness complies.) Okay, sir. Q. Do yourecognize this document? A. It's the old NOPC. Q. At the bottom there's a signature ofthe dispatcher or captain. Do yourecognize that?

A. No,sir. Q. And youdon'trecognize the other handwriting on this page, do you?

A. No, sir. Q. Now, I notice that there's some handwriting-- well, before we get there, let's take a look at the proper shipping name. Do you see that line?

A. I do. Q. Okay. Do you see anyproblems with that shipping '? name, s1r. 74

A. I can't read the shippingname. Q. Okay. Do yourecognize anyproblems at all with the shipping information onthis document?

A. Not without the shippingpapers to compareto and the Shipper's guidebook. Without those--

Q. You can't-- A. --I can't tell you definitively. Q. Okay. Now, ifyou look in the "location," can youmake outthat location on the aircraft where that is located?

A. Itlooks like "POD D." Q. What does that mean? A. It's thelastzone in the pod. It would bethe far right zone,ifyou'relooking atthe aircrafton the left side.

Q. Okay. A. It's at thetail ofthe aircraftunderneath the airplane.

Q. Okay. There's some handwriting onthis document that's inthe UPS, DHLtracking number. It's "bad," "not enough." Doyouknow whosehandwriting that is? There's two questionmarks there.

A. I do not. Q. Now, the UPS orDHLtrackingnumber, that's the tracking numberofthe hazardous material shipping 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 paper, correct? A. That's the trackingnumber of.the package. Q. Ofthepackage. Wouldthatpackage-- wouldthat tracking number

-- are you ableto obtainthehazardous material shippingpaper from DHL or UPS with that tracking number?

A. You should be ableto, yes, sir. Q. Okay. MR. ARCHIER: CS-11, please. (ExhibitNo. CS-11 marked.) Q. (BYMR. ARCHIER) Take a moment, Mr. Smith, and look at CS-11. When you're finished looking at it, let
meknow, please.

A. (Witness complies.) Okay. I'm finished. Q. Okay. The last-- the signature ofthe dispatcher orthe captain, do yourecognize that signature?

A. No,sir. Q. Doyourecognize any ofthehandwriting onthis form?

A. No,sir. Q. Okay. Doyourecognize who thatparticularpilot is from the pilot employeenumber?

A. Not without a Jist. Q. Not without your list. Butyou could determine

who that was with your list, correct?

A. With my list orthe computerprogram; that is correct.

Q. Right. Andthe computerprogramtells you-- whattype ofinformation does that tell you?

A. Who the pilotis. Q. Does it give you any otherinformation? A. Yeah. It can tell me his hire date. Itcan tell 76

me all his personal information, address, telephone number, pilot certificate numbers. Tells me when the checkride was due or was completed. Ittells me his base month. Tells me when his training was completed. Ittells me a lot ofdifferent stuff.

Q. Would ittell youifhe's had anypreviousNOPC violations?

A. No,sir. Q. Is there any type ofrecordthat's maintained thattells you whether a pilot has previous NOPC violations?

A. Otherthan thatbackground checkthat's required thatwe do before hiring, no, sir.

Q. Butyou don'tmaintain thattype ofinformation yourselfon a specific pilot?

A. We have the backgrounds from the pilots, yes. I've never seen one come backwith a hazmatviolation. 

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### FEDERAL

# A~ATION ADMINISTRATION v.

# ~NAIRE Deposition of: 

### CORY SMITH 5/15/2013 20 (Pages 77 to 80) ( 79 77 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 

# ( 25

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Okay. I guess whatI'm saying-- I mean I'm probably notbeing clear here, but let's say pilot employee number 323, ifhe-- ifthis was a violation, wouldyou enterany information in a computer database that indicatedthathehad a NOPC violation on May 13th, 2011?

A. No. Q. Okay. Take a look attheproper shippingname here.

A. Okay. Q. You see any problem with that shipping name, sir? A. Not without a --again, withouttheA.I.R. Shipper's guidebook, I'd have to have thatto compare to the UN ID number.

Q. Okay. Doyouknow ofany hazardous material that's calledNOS?

A. I know hazardous material that has "NOS" in the shipping name, but again, withoutthe guide bookor shippingpapers,I can'ttell you definitively.

Q. Correct. Yeah. But offthe top ofyour head, youdon't know ofany hazmat calledNOS, do you?

A. Not offthe top ofmy head. Q. Yeah. Okay. Thank you. (ExhibitNo. CS-12 marked.) Q. (BYMR. ARCHIER) Take a moment, Mr. Smith, and 78 look at pages 1, 2, and 3 ofExhibit CS-12.

A. (Witness complies.) Okay, sir. Q. Okay. Now, I notice onthis particularNOPC there's no captain's ordispatcher's signature.

A. Okay. Q. Why is that? A. I don't have an answer for you. Q. Shouldthere be a signature there? A. There should be. Q. Okay. All right. Now, the pilot who would have flown this would have been pilot 2020, employee number 2020, right?

A. You are correct. Q. Okay. Andbecausethe dispatcherdidn't sign theirname here, we wouldn't have an idea who this dispatcher is?

A. I would assume so, yes, sir. Q. Okay. Why would a dispatchernotwantto sign his name to this form?

A. I'm notgoingto answerthat because I don't know definitively.

Q. Okay. Take a look atthe-- atpage 2 and 3 of this exhibit.

A. Okay. Q. Okay. Take a momentand look atpage 2 and 3. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Now, take a look at

-- whenyou're finished, letme know.

A. I'm finished. Q. Okay. Take a look at the proper shippingname, the first proper shipping name.

A. Yes, sir. Q. Do you see any problems with this hazardous shippingmaterial name listed?

A. Absolutely. Q. Whatproblems do you see? A. The proper shipping names do not match. Q. Okay. And what shouldtheproper shippingname be here?

A. "Lithium metal batteries packedwith equipment." Q. Now, I noticedthe proper shipping name here is listed as "Metronic." What's thatmean?

A. It sounds to me thatis the shipper. Q. The shipper? Okay. A. But I don'tknow that definitively. It'sjust what-- you know.

Q. Yeah. Is the other information correcthere, the UNnumber?

A. 3091,yes, sir. Hazard class 9, (witness reading to himself.) Yes.

Q. Okay. Yes what? A. Sir. MR. ARCHIER: You've coached this man very well, Mr. Dworkin. ButI'm morehumble than that. Can youread thatresponse back. A. I just -you sounded like my father. (Reporter read requested portion.) 80

Q. (BYMR. ARCHIER) Now, I notice the location on boardthis aircraft is

-- that looks like a J to me. Doesthatlooklike a J to you?

A. What location? I mean which one? Q. On-- A. On the first one? Q. On the first one it says location J? A. It lookslike a "3" to me. Q. Thatlooks like a "3" to you? Okay. So that wouldbethe location where the hazmat was?

A. Yes, sir. Q. Okay. Andthen on the second one, the location is "1," right?

A. Yes, sir. (ExhibitNo. CS-13 marked.) Q. (BYMR. ARCHIER) Okay. Take a moment, Mr. Smith, and look atCS-13. When you're finished looking atit, letmeknow, please. 

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# ( FEDERAL

# A~ATION ADMINISTRATION v. 

### MAIIINAIRE Deposition of: 

### CORY SMITH 5/15/2013 21 (Pages 81 to 84)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 81 83 A. (Witness complies.) Okay, sir. 1 they're different. Q. Okay. Mr. Smith, do yourecognize the captain or 2 Q. Right. What aboutthe hazardous class here? dispatcher's signature? 3 A. They're definitely different.

A. No, sir. 4 Q. Okay. Butyou don't have enough information to Q. Okay. Do yourecognize any ofthe other 5 know whethertheseparticular shipping names are handwriting in this document, sir? 6 improper?

A. No,sir. 7 A. Not without pertinent documentation, no, sir. Q. Okay. Youwouldbe able to find out who the 8 Q. Okay. And thepertinent documentation would be pilotwas from thepilot employee number on this 9 what again? document, correct? 10 A. The shippingpaperortheA.I.R. Shipper's guide.

A. Yes, sir. 11 Q. Okay. Thank you. Q. Okay. Now, looking at theproper shippingname, 12 MR. ARCHIER: Markthis CS-14, please. listedhere, do you see any problems with thathazmat 13 (ExhibitNo. CS-14 marked.) shipping name? 14 Q. (BY MR. ARCHIER) Take amoment, Mr. Smith, and

A. It's not a namethat I recognize, but I couldn't 15 look at page 1 and 2 ofExhibit CS-14. tell you definitively without the book orthe shipping 16 A. (Witness complies.) Okay, sir. paper. 17 Q. Okay. Take a look at page 2 at thathazardous

Q. So you've neverheard ofa hazardous material 18 material name. called "Beckman Coulter"? 19 A. Yes, sir.

A. I have not, but again, I would have to-- I don't 20 Q. Okay. Have you ever heard ofthat particular memorize hazmat material, so I would have to checkthe 21 hazard material? book. 22 A. Yes, sir.

Q. And then onthe second hazmat, theproper 23 Q. Okay. In what context? shippingname is also listed as "Beckman Coulter," 24 A. On thehazmats that I've reviewed. right? 25 Q. In the past? 82 84 A. It is. 1 A. In the past. Q. Okay. Well, letme ask youa question. Ifthe 2 Q. Okay. Now, take a look atpage I ofExhibit proper shippingname in the first instant is Beckman 3 CS-14. Coulter and the proper shipping name inthe second is 4 A. Okay. Beckman Coulter, how come theyhave different UN 5 Q. Do you see anyproblems with thatproper shipping identificationnumbers? 6 name?

A. They should betwo differenthazardous material. 7 A. Although it's kind ofhard to read, it doesn't Q. Ifthey were two different hazardous material, 8 look like it's spelled correctly. wouldn't they have a differenthazardous material 9 Q. Okay. Is there any issue with the UN IDnumber? shipping name? 10 A. They do notmatch.

A. Theywould have a differentproper shipping name, 11 Q. Okay. What aboutthe hazardclass? yes. 12 A. The shipping papers say it should be a class 8,

Q. A different proper shippingname, correct? 13 and class 3 is inscribed here on the page. A. Correct. 14 Q. Okay. Now, do yourecognize the dispatcher's Q. Okay. So ifwe look at also thatthere's a 15 signature at the bottom? hazard class 9 on one, the first one, and there's a 16 A. No, sir. Nor the handwriting. hazard class 8 on the second one -- 17 Q. Okay. All right. Now, whydoes the information

A. Can I go back a second? 18 onthe NOPChave tobe accurate? Q. Yeah, sure. 19 A. For first responders so they know-- ifthe A. There should and there's instances where the 20 aircraftwere to have an incident, whomever's, the
names could be the same and have different UN ID 21 pilot's incapacitated, first responders know how to numbers. 22 correctly assess and take care ofthe accident site.

Q. Okay. Soyou're sayingthe shippingname could 23 Q. So youwould agree with me thattheproper be the same? 24 shippingname is importantinformation?

A. It's a possibility, but ninetimes out often, 25 A. I would agree. 

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### ( '·



# ( 

# • e FEDERAL AVIATION ADMINISTRATION 

### v. MARINAIRE Deposition of: 

### CORY SMITH 5/15/2013 22 (Pages 85 to 88)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 85 87 Q, Okay. 1 instead of24 calendar months as the regulation (ExhibitNo. CS-15 marked.) 2 specifies, as I previously stated. The pilots are Q. (BY MR. ARCHIER) I'm showingyouExhibit CS-15, 3 taught to

-- and were taught atthe time to call Mr. Smith. Pleasetake a moment and look atit. When 4 everything- sorry- write everything down on the NOPC you're finished, letmeknow. 5 form verbatim and to call that in to dispatch and convey

A. (Witness complies.) Okay, sir. 6 to them whatthey'recarryingverbatim. Q. Doyou see any problem with the proper shipping 7 Q. Okay. Now, Martinaire had an audit from our name as listedhere? 8 hazmat section in about the last couple ofyears,

A. Yes, sir. 9 correct? Q. What do you see? 10 A. 2011. A. I don't recognize thename. Itseems to be cut 11 Q. So ifthere were an inspections today, would you offor abbreviated orwhatnot. 12 feel confidentthat you've solved this problem?

Q. Okay. Are you able to recognize whatthe 13 A. Absolutely. hazardous material is bythe UNidentificationnumber 14 Q. You seem prettyconfident, Mr. Smith. You say alone? 15 absolutely.

A. With thebook. 16 A. I say absolutely because I'm pretty confident. Q. Withoutthe book? 17 Q. Why are you confident? A. No. Withoutthebook, no, sir. 18 A. Because I believe thatthepolicies and Q. Okay. Without the hazardous class? 19 procedures that we putin place took care ofthe A. Rephrase yourquestion, sir, please. 20 problem. We've educated ourselves even further with Q. Are you ableto recognize the name ofthe 21 assistance from the- some hazmat inspectors. hazardous material withjustthehazardous class 22 Q. And what

-- specifically which hazmat inspectors information that's here? 23 gave you that assistance?

A. No,sir. 24 A. I don't know the names specifically. Theyhelped Q. Okay. Andyou don't know ofany hazardous 25 us kind ofcultivatethe form and how we should change 86 88 material name C-0-R-R, correct? 1 it on the day oftheinspection. I believe Paul Klimas

A. Notthe full name, no, sir. 2 was one. He's the one that I rememberthe most. Q. Okay. And do yourecognize the signature atthe 3 Q. Okay. bottom? 4 A. Mr. Klimas. The otherguys' names, Ijust don't

A. No, sir. Nor the handwriting. 5 remember. Q. Okay. Butyou could find outwho thepilotwas, 6 Q. And he helped you formulate a better format for correct? 7 reporting?

A. I could. 8 A. At the end,yes, sir. MR. ARCHIER: Okay. I needto take a 9 Q. Why do you say at the end? five-minute break. 10 A. There was some things that we needed to figure (Breaktaken from 11:51 a.m. to 11:56 a.m.) 11 outwhatthey wanted, whatthe regulations were, how we Q. (BYMR. ARCHIER) Atthe time ofthese NOPC's 12 worked on the regulation. And that wasn't being that wejustlooked at,Mr. Smith, what was Martinaire's 13 conveyed clearly in my opinion from the hazmat policy toward completingNOPC's? 14 inspectors. And then at the end, after we saw eye to

A. You want to be more specific? l5 eye, then we were able to help take care oftheproblem. Q. Yeah. I'mjustwondering-- we've seen a series 16 Q. Do you know about-- when Mr. Klimas conducted ofNOPC's thatwere incorrect, and I wasjustwondering 17 that inspection that day, do you know about how many whattheirpolicy toward those NOPC's were, I mean 18 NOPC's he looked at? toward the completion ofNOPC, toward the training of 19 A. I didn'tlook at them. I didn't count how many pilots towardNOPC. I mean what was thepolicy of 20 he looked at. I mean I looked atthem, butI didn't Martinaire atthattime? 21 countphysically how many he looked at, so I can'ttell

A. Well, first ofall, the policy goes hand in hand 22 you definitively. with the regulation. 23 Q. Ifyou had to take a guess, how many would you

Q. Okay. 24 say? A. The pilots are trained every 12 calendar months 25 MR. DWORKIN: You mean ifhe were to 

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# ( FEDERAL

# A~ATION Deposition of: CORY SMITH ADMINISTRATION v. MAIIINAIRE 5/15/2013 23 (Pages 89 to 92)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 89 estimate? 1 MR. ARCHIER: Yes, ifhe were to estimate. 2 MR. DWORKIN: Don't guess. Don't guess, but 3 ifyouhave a good faith estimate, that's different. 4

A. I don't even wantto give you a good faith 5 estimate because I didn't countthem. I was in and out 6 getting information for him so... 7

Q. (BY MR. ARCHIER) When Mr. Klimas met with you, 8 who all was inthat meeting? 9

A. Myself, Mr. Klimas, Mike Bates, and again, the 1 0 other hazmatinspectors. Honestly, I don't remember 11 their names. I'm really bad with names. I'll forget 12 yours herein a little while. 13

Q. Howmany times did Mr. Klimas meet with you? 14 A. One. 15 Q. Just one time? 16 A. Um-hmm (affirmative). 17 Q. So you haven't seen Mr. Klimas since that 18 particularmeeting? 1 9

A. I have not seen him since thatparticular 2 0 meeting, no, sir.

Q. Okay. Now, Mr. Smith, you indicated to methat you do subsequent internal audits ofthe NOPC; that's correct, right?

A. I'm one ofthetwo people that does the audits, 90 21 122 123 124 25

yes. 1

Q. Okay. And who is the otherperson that-- 2 A. MikeBates. 3 Q. Okay. Now, how often do you do the audits? 4 A. Every day. 5 Q. Every day you do an audit? 6 A. Monday through Friday. 7 Q. What does that audit entail? 8 A. I getthe NOPC form, I get outthe A.I.R. 9 Shipper's guide book, and I compare apples to apples, 10 make surethateverything was spelled correctly, proper 11 shipping name, properUN ID number, make surewhatever 12 is in thebook matches whateveris on the NOPC. 13

Q. And Mr. Bates does the same thing when you're not 14 there? 15

A. Yes, sir. 16 Q. Okay. Do you keep any records ofthose audits? 17 A. Keep records for 90 days. 18 Q. Okay. So you have records ofthe-- you keep the NOPC's for 90 days, right?

A. We keep the NOPC's for 90 days. Q. Ifyou find-- MR. DWORKIN: "We" being Martinaire, not you personally.

A. "We" being Martinaire. 19 20 21 22 23 24 25 91 Q. (BYMR. ARCHIER) Okay. And

-- butyou're responsible for maintaining thoseNOPC's, correct, for filing them, correct, and keepingthem in oneplace, right?

A. I'mresponsible for auditing them, and I make sure thatthey are keptin one place. Ourdispatch employees actually putit in the binder. I grab it out ofthe binder, inspect it, and I putitbackin the binder.

Q. Okay. Now, who at thedispatch maintainsthat binderwith the NOPC in it?

A. Well, all the dispatchers do. Q. All the dispatchers? A. They putthe NOPC's into the binder. Q. Andthe binderjustincludes all theNOPC's for a specific day?

A. For numerous days. Q. Fornumerous days. So ifl went to the dispatch officetoday, I could go to a binderthat looks something like this, and itwould have all theNOPC's in it?

A. Forthe past90. Q. Forthepast90 days? A. Yes, sir. Q. Okay. Wouldthatparticularbinder also have the 92 hazardous material shipping papers attached to the NOPC's?

A. No, sir. Q. Okay. A. It's not required. Q. It's not required. So the only way-- you're evaluating this with looking at the guide book to find out ifthat NOPC is correct?

A. That is not the only way. Q. Okay. Is there any other way? What's the other way again?

A. Well, the dispatchers when the pilots calls the shipping**pape~s** in to the dispatchers, they, too, look at the guide book and make sure everythingis correct with the NOPC before they give the go-ahead to carry the hazardous material.

Q. So let me ask you this. Suppose apilot gives you -- gives the dispatch wrong -- a wrong hazmat shipping name.

A. Okay. Q. Will the dispatch not release that pilot to fly? A. I don'tunderstand your question. Q. I mean, you're saying that the dispatch person has the power-- reviews thatNOPC, correct?

A. Um-hmm (affirmative). 

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# C.

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# '-- FEDERAL

# ~ATION ADMINISTRATION v.

# ~INAIRE Deposition of: CORY SMITH 5/15/2013

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

1 2 3 4 5 6 7 8 9 0 1 2 3 4 5 6 h7

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### 24 (Pages 93 to 96) 93 95 Q. They review the NOPC information? 1 CHANGES AND SIGNATURE A. Um-hmm (affirmative). 2 WITNESS NAME: CORY SMITH DATE: Q. Now, for thepilotto getthe go-ahead to fly, 3 PAGE LINE CHANGE REASON that dispatch person has to give thatpilotthe go-ahead 4 to fly? 5

A. That dispatch person will tell thepilotif 6 there's an error with the hazardous material. And if 7 there is an error, the pilot refuses the package. 8

Q. Oh, the pilotrefuses the package? 9 A. The pilot can refuse the package

- orthe pilot 10 does refuse the package. 11

Q. Sothe pilotrefuses thepackage? 12 A. That's correct. 13 Q. Do they leave thatpackagethere on the loading 14 dock? 15

A. They leavethepackage with UPS. 16 Q. Okay. What is-- has that ever happened in your 17 tenure? 18

A. Absolutely. 19 Q. Okay. So before thatpilot can take off, that 20 NOPC has to have correcthazmatinformation on it? 21

A. That's correct. 22 MR. ARCHIER: Okay. I do nothave any 23 further questions, Mr. Dworkin. 24 MR. DWORKIN: Okay. We'll see you tomorrow 25 94 96 withMr. Bates at 9 o'clock. 1 I, CORY SMITH, have read the foregoing deposition (Proceedings concluded at 12:07 p.m.) 2 and hereby.affix my signature that same is true and 3 correct, except as noted above. 4 5

6 CORY SMITH 7 THE STATE OF ) 8 COUNTY OF ) 9 10 Before me, on this 11 daypersonally appeared CORY SMITH, known to me (or 12 proved to meunder oath orthrough 13 ) (description ofidentity 14 card orotherdocument) to betheperson whose name is 15 subscribed to the foregoing instrument and acknowledged 16 to methat they executed the same for the purposes and 17 consideration therein expressed. 18 Given undermy hand and seal ofoffice this 19 day of 2013. 20 21 22 NOTARYPUBLIC INAND FOR 23 THE STATE OF COMMISSIONEXPIRES: 24 25 

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# (_ FEDERAL

# A~ATION ADMINISTRATION v.

# ~NAIRE Deposition of: CORY SMITH 5/15/2013

1

2
3

4
5
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7 U.S DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION OFFICE HEARINGS WASIDNGTON, DC
In the Matterof: ) FAA DOCKETNo. FAA-2013-0040 MartinaireAviationLLC) FAA CASE No. 2011SW700189 (Civil PenaltyAction) Respondent ) REPORTER'S CERTIFICATION DEPOSITION OF CORY SMITH

MAY 15,2013 I, Kristin McDowell, Certified Shorthand Reporter in and for the State ofTexas, hereby certifYpursuant to the Federal Rules ofCivil Procedtrre to the following:

That this deposition transcript is a true record of the testimony given by CORY SMITH, the witness named herein, on May 15th 2013 after said witness was duly sworn/affirmedbyme.

That the deposition transcript was submitted on the 97

8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 --,--dayof 2013 to Mr. Michael L. Dworkin, MICHAEL L. DWORKIN & ASSOCIATES, 465 California Street, Suite 210, San Francisco, California 94I04 for examination, signature and return to me by

_______ ,,2013.

98

1 That the depositiontranscript was returned to U.S. 2 Legal Support on , 20I3, was 3 properly executedby the witness to the deposition 4 officer, andthe attached change/correct sheetcontains 5 any changes, and the reasons therefor, madeby the 6 witness. 7 8 That the original deposition transcript, ora copy 9 thereof, together with copies ofall exhibits, was 1 o delivered on the

__day of , 2013 to Mr. 11 James Archierfor the safekeeping anduse at trial. 12 That the amount oftimeused by each party at the 13 deposition is as follows: 14 MR. JAMES ARCHIER.

........ 02 HOURS:27 MINUTES 15 MR. MICHAEL DWORKIN

....... 00 HOURS:OO MINUTES 16 1 7 Thatpursuant to information given to the deposition 18 officer at the time said testimony was taken, the 19 following includes counsel for all parties ofrecord: 20 MR. JAMES ARCHIER: Attorney forFAA; 21 MR. MICHAEL DWORKIN: Attorney for Martinaire. 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11
12
13
14
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### 25 (Pages 97 to 99)

That a copy ofthis certification was served on all parties shown herein.

Certifiedto bymethis

__day of , 2013.

KRISTIN MCDOWELL Texas CSRNo. 8218 Expiration Date: 12/31114 U.S. Legal Support, Inc. Firm# 343 5910 N. Central Expressway, Suite 1 00 Dallas, Texas 75206 214-741-6001 214-741-6824 (FAX)

Taxable cost$

____ _ Job#2-143523 99



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# ADMINISTRATION~. MARINAIRE Deposition of: CORY SMITH 5/15/2013



### A abbreviated69:24 85: 12 abbreviations70:6 abide38:21 able 6:9 8:10,14 51:3,6 60:19,25 62:21 69:22

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89:23,25 90:4,17 authority 11: 11,15 automatically 14:22 average 14:18,20 18:25 aviation 1:1,4,22 2:3,8,11,15 7:6,9,12,25 8:19

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83:10 90:9 a.m 1:20 36:5,5 73:6,6 86:11,11

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90:14 94:1 batteries79: 14 Beckman 81:19,24 82:3,5 Becky2:11 4:10 Beech 8:15 55:25 56:11 68:1,3 beginning20:9 believe8:20 21:7 25:5 26:13 28:23,25 30:9,9

30:15,18 31:14,25 34:11 62:24 65:17 66:12 66:14 87:18 88:1 better49:1,2,3 88:6 binder 14:25 15:2 29:2 91 :7,8,9,11,14,15,19 91:25 bit7:4 31:6 blank32:14 board 13:8 15:19,20,20 40:18 48:21 50:1,5

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86:11 bring 15:25 37:15 building5:6 busier21 :23,23 business 35:22 45:8



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# c FEDJitL AVIATION

# ADMINISTRATION~. MARINAIRE Deposition of: CORY SMITH 5/15/2013

case 1:4 55:10 97:4 category53:15 cause 1:19 ceased47:3 center 13:22 Central99:13 certain41:10 57:4 67:13 certificate 3:7 8:8 76:10 certification97:7 99:1 certifications8:7 Certified23:3,5 97:9 99:3 certify97: 1 0 Cessna55:25 56:1 Cessnas68:2,4,5 CFI22:25 23:1 CFII7:14 23:4 CFII's22:24 CFI's22:24 CFR62:14,24 change 19:20,24 20:1 48:9,12 87:25 95:3 changed 19:18 65:13,15 changes5:15,21 33:14,17 34:9 95:1 98:5 change/correct98:4 charge39:14 check9:3 10:1,25 11:10 20:14,22 38:17 62:2

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# ADMINISTRATION~t. MARINAIRE Deposition of: CORY SMITH 5/15/2013

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29:12,24 30:2,4,10 32:3 34:5,24,25 35:2,5,7 36:4 46:15 57:14 66:5 73:1 80:4 88:25 89:3


### U.S. LEGAL SUPPORT

- DALLAS, TEXAS 214-741-6001 5

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# (

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# ADMINISTRATION~. MARINAIRE Deposition of: CORY SMITH 5/15/2013

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### FAA 1:3,4,18 10:24 43:7,8,11,11 97:3,4 98:20 FAA-2013-0040 1:3 97:3 face-to-face 16:23 17:19 facility7:15 27:4 40:15 fact 50:6 failure 30:24 31 :3 faith 89:4,5 familiar 10:10 33:8,11,12 35:24 41:17 far 11:9,12 46:24 65:6 74:14 FAR's11:12 father 80:6 Fax2:6,14,21 99:14 Federal1:1,22,24 2:3,8,11,15 4:13 97:1,11 feel38:22,23 87:12 Fibreboard65:25 figure 88:10 filed 34:1 filing 91:3 fill27:3,15 37:2 38:11,16 39:1,16,19 40:4



### U.S. LEGAL SUPPORT

- DALLAS, TEXAS 214-741-6001 6

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# (

# FED~L AVIATION

# ADMINISTRATION~. MARINAIRE Deposition of: CORY SMITH 5/15/2013



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### U.S. LEGAL SUPPORT

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## (

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### FEDJitL AVIATION

# ADMINISTRATION~. MARINAIRE Deposition of: CORY SMITH 5/15/2013

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### U.S. LEGAL SUPPORT

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# ( FEDJitL AVIATION

# ADMINISTRATION~. MARINAIRE Deposition of: CORY SMITH 5/15/2013

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### U.S. LEGAL SUPPORT

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# (

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### FEDJilL AVIATION

# ADMINISTRATION~. MARINAIRE Deposition of: CORY SMITH 5/15/2013

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### U.S. LEGAL SUPPORT

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# ADMINISTRATION~. MARINAIRE Deposition of: CORY SMITH 5/15/2013

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### U.S. LEGAL SUPPORT

- DALLAS, TEXAS 214-741-6001

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# FEDE~L AVIATION

# ADMINISTRATION~. MARINAIRE Deposition of: CORY SMITH 5/15/2013 12 

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### U.S. LEGAL SUPPORT

- DALLAS, TEXAS 214-741-6001

# (



# (

(

# FEDE~L AVIATION

# ADMINISTRATION~ MARINAIRE Deposition of: CORY SMITH 5/15/2013

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### U.S. LEGAL SUPPORT

- DALLAS, TEXAS 214-741-6001

# (



# (

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### FEDJitL AVIATION

# ADMINISTRATION~. MARINAIRE Deposition of: CORY SMITH 5/15/2013

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### U.S. LEGAL SUPPORT

- DALLAS, TEXAS 214-741-6001

# (



# (

# FEDE~L AVIATION

# ADMINISTRATION~. MARINAIRE Deposition of: CORY SMITH 5/15/2013 15 

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### U.S. LEGAL SUPPORT

- DALLAS, TEXAS 214-741-6001

## (



# (

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### FEDJilL AVIATION

# ADMINISTRATION~. MARINAIRE Deposition of: CORY SMITH 5/15/2013

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### U.S. LEGAL SUPPORT

- DALLAS, TEXAS 214-741-6001

## (



# (

# FEDE~L AVIATION

# ADMINISTRATION~. MARINAIRE Deposition of: CORY SMITH 5/15/2013

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### U.S. LEGAL SUPPORT

- DALLAS, TEXAS 214-741-6001

# (



# (

(_ FED.L AVIATION ADMINISTRATION4111t. MARINAIRE Deposition of: CORY SMITH 5/15/2013

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### U.S. LEGAL SUPPORT

- DALLAS, TEXAS 214-741-6001

## (

# FEDE~L AVIATION

# ADMINISTRATION~. MARINAIRE Deposition of: CORY SMITH 5/15/2013



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52:12 59:25 63:7 69:20 70:20 73:2,4,11 75:14 78:2 79:23 81:1 83:16 85:6 95:2 97:14,15 98:3,6 witnesses 6:16 wondering86:16,17 word 17:23 72:14 work5:9 13:23 20:17 22:12 23:21,25 24:9,21

25:19 31:20,21 32:6 45:12,15 49:2,3 worked 8:18 31:2 88:12 working21:12,14 22:7 24:20 25:16,18,21,24

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### X X3:1,8 y 

### yeah 17:21 21:11 23:2,14 24:3,14 29:1 37:6

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# z 19



### zone55:6,9,15 56:16,17,17,18 67:13,18 74:13

74:14 zones 55:11,11,16,18 56:1,4,6,11,20 67:16,18

00 98:15 0226:2 98:14 0

1 

### 18:9 65:25 70:18 71:4 78:1 80:20 83:15 84:2 10:0136:5 10:15 36:5 100 99:13 11:00 31:15 11:15 73:6 11:3073:6 11:5186:11 11:56 86:11 12 34:17 86:25 12-month42:21 12/31114 99:12 12:07 1:20 94:2 1245 54:6,9 1263 54:5,7 1268 65:4 13th77:5 1417:14 22:18,18 151:13,19 97:8 15th97:15 1965:25 1900 8:15 55:25 56:112 2 3:2 40:3 43:21 58:23 60:1 64:5,7 68:20,21


### U.S. LEGAL SUPPORT

- DALLAS, TEXAS 214-741-6001

# (

I (**~**

# FEDE~L AVIATION

# ADMINISTRATION~ MARINAIRE Deposition of: CORY SMITH 5/15/2013

70:18,21,23 71:2 78:1,22,25 83:15,17 50 57:10 2000 25:3 26:4 52 3:14 200125:4,4 59 3:15 2003 25:4,6 5910 99:13 2004 8:20 21:9,10,11,12 25:12,13 200521:8 6 201145:2 61:16,17 77:6 87:10 621:24 2011SW700189 1:4 97:4 6.172:23 2013 1:13,20 96:19 97:8,15,18,22 98:2,10 6/6 61:16,17

99:3 63 3:16 2020 78:11,12 68046:22 2102:19 97:20 69 3:17 214-741-600199:14 214-741-6824 99:14 7 222-50992:6,14 70 3:18 222-5945 2:6,14 73 3:19 24 34:18 87:1 75 3:20 2417 31:12 7520699:13 26011:23 2:5,13 761371:24 2830:18 76137-4298 2:5,13 77 3:21 3 344:17 64:5 65:7 78:1,22,25 80:15,16 84:13 8 882:17 84:12 3-5-5 66:5,6 30 18:25 803:22 309179:23 817 2:6,6,14,14 323 77:3 8218 99:11 343 99:12 83 3:23 36 3:10,11 85 3:24 38 30:9,15 9 4 910:17 79:23 82:16 94:1 4 3:5 55:7,9 9:141:20 4th 8:20 55:15 90 13:12 15:1 40:2,4 90:18,20,21 91:22,23 4:00 31:14 94104 2:20 97:20 413:12 953:6 415 2:20,21 973:7 421-2500 2:20 421-2560 2:21 463:13 465 2:19 97:19 49 62:14,24 5 5.172:23



### U.S. LEGAL SUPPORT

- DALLAS, TEXAS 214-741-6001 201
2 3 4 5
6 7 8 9 

### 10
11 12 

### 13 14 15 16 17
18 19
20 21
22 

### 23 24 25 FEDJilL AVIATION

# ADMINISTRATI~ v. MARINAIRE Deposition of: CORY SMITH 

# 0fVIQIJJ**~~**

# L 5/15/2013 

# rl**~~~** 95

CHANGES AND SIGNATURE WITNESS NAME: CORY SMITH

# DATE:_~,L~~-~-- PAGE LINE CHANGE REASON

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# _______________________**1Jr~~-~-~~l~~--~t~~~~-**

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# ---------------------~-~-~-~-~~l~~~-~~----**----------------------~~rl~-~-~~--~-~~~~------** 2<:" lL 

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## \"'2.

# FED~L AVIATION

# ADMINISTRAT~ v. MARINAIRE Deposition of: CORY SMITH 5/15/2013

1 I, CORY SMITH, have read the foregoing deposition 2 and hereby affix my signature that same is true and 3 correct, except as noted above. 4 5

6 7 THE STATE OF

## JC~~-----) 8 COUNTY OF

## -~4JL~

# _____)

9 10 11 day Before me,

# -~~~~------------~ on this personally appeared coR<f SMITH, known to me (or 12 proved to me under oath or through 13 (description of identity 14 card or other document) to be the person whose name is 15 subscribed to the foregoing instrument and acknowledged 16 to me that they executed the same for the purposes and 17 consideration therein expressed. 18 Given under my hand and seal of office this 19

# --~~~--day**of---~~-------------'** 2013. 20 21 22

23

24 25

# ~~~~~--~~~~~~~~--~ NOTARY PUBLIC IN AND FOR



# --- THE STATE OF

__

### j~~-r.-;r------- COMMISSION EXPIRES:

### -ZL~~13

# _____

U.S. LEGAL SUPPORT

- DALLAS 1 

### TEXAS 214-741-6001 96

# FED~ AVIATION ADMINISTRATita v. MARINAIRE Deposition of: CORY SMITH 5/15/2013

1

2

3



### 4

5

6

7

8 9 U.S DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION OFFICE HEARINGS WASHINGTON, DC

In the Matter of: FAA DOCKET No. FAA-2013-0040

Martinaire Aviation LLC ) FAA CASE No. 2011SW700189

Respondent (Civil Penalty Action)

REPORTER'S CERTIFICATION DEPOSITION OF CORY SMITH MAY 15, 2013 I, Kristin McDowell, Certified Shorthand Reporter 10 in and for the State of Texas, hereby certify pursuant 11 to the Federal Rules of Civil Procedure to the 12 following: 13 That this deposition transcript is a true record of 14 the testimony given by CORY SMITH, the witness named 15 16 17 18 herein, on May 15th 2013 after said witness was duly sworn/affirmed by me.**~hat** the**deposi~ion** transcript was submitted on the

# -L~Jt~_day of

# J[~~~--- 2013 to Mr. Michael L. 19 Dworkin, MICHAEL L. DWORKIN & ASSOCIATES, 465 California 

### 20 Street, Suite 210, San Francisco, California 94104 for 21 22 23 

### 24 25 examination, signature and return to me by

# ~~-1_~--------· 2013.



### U.S. LEGAL SUPPORT

- DALLAS, TEXAS 214-741-6001 97

# FED~L AVIATION ADMINISTRATitt Deposition of: CORY SMITH v. MARINAIRE 5/15/2013

1 That the deposition transcript was returned to U.S. 2 Legal Support on--------------------' 2013, was 3 properly executed by the witness to the deposition 4 officer, and the attached change/correct sheet contains 5 any changes, and the reasons therefor, made by the 6 witness. 

### 7 8 That the original deposition transcript, or a copy 9 thereof, together with copies of all exhibits, was 10 delivered on the

______ day of ------------' 2013 to Mr. 11 James Archier for the safekeeping and use at trial. 12 That the amount of time used by each party at the 

### 13 deposition is as follows: 

### 14 MR. JAMES ARCHIER

........ . 02 HOURS:27 MINUTES 

### 15 MR. MICHAEL DWORKIN

...... . 00 HOURS:OO MINUTES 

### 16 17 That pursuant to information given to the deposition 18 officer at the time said testimony was taken, the 19 following includes counsel for all parties of record: 

### 20

21 22 

### 23 24 25 MR. JAMES ARCHIER: Attorney for FAA; MR. MICHAEL DWORKIN: Attorney for Martinaire.



### U.S. LEGAL SUPPORT

- DALLAS, TEXAS 214-741-6001 981 2 3 4 5 6 7 8 9 10 11



### 12

13



### 14

15 16 17 18 

### FEDJitL AVIATION ADMINISTRATitt v. MARINAIRE Deposition of: CORY SMITH 5/15/2013

That a copy of this certification was served on all parties shown herein. Certified to by me this 

# lc&h day

# ofJ[i_GL~-' 2013.

KRISTIN MCDOWELL Texas CSR No. 8218 Expiration Date: 12/31/14 U.S. Legal Support, Inc. Firm# 343 5910 N. Central Expressway, Suite 100 Dallas, Texas 75206 214-741-6001 214- 741- 6 824 (FAX)

Taxable cost $

___________ 99

19 Job#2-143523 20 

### 21 22 23 

### 24 25



### U.S. LEGAL SUPPORT

- DALLAS, TEXAS 214-741-6001

# • •

EXHIBITB
Exhibit 7 to Deposition ofPaul Daniel Klimas

FAA Case No. 2011SW700189 I DMS No. FAA-2013-0040
MARTINAIRE AVIATION, LLC'S RESPONSE AND OBJECTIONS TO COMPLAINANT'S MOTION FOR DECISION

# (



# ( U.S. Department ofTransportation Federal Aviation Administration May 18,2012
Inreply 

# •

Referto: AGL-7B 2011-GL-70-0205 GreatLakes Region 2300 EastDevonAvenue Des Plaines, Illinois 60018

EXHIBIT 

# N0.,_1,___ 

# • s(7·1}


# •--·--·---·-·---

..

## ---- &!nt>elt flqoning & t;1iprion Scrviots


### REGULAR AND CERTIE D MAIL- RETURN RECEIPTRE VESTED

ORDER**ASSESSING~**

### PENALTY
OnDecember 19,2011,youwere advisedthroughaFinalNoticeofProposedCivilPenaltythatthe FAAproposedto assess acivilpenalty

### intheamountof$35,000.
Afterconsideringa111heevidencein

### thismatter, includingtheinfonnationpresentedattheinformal conference, andpursuanttomutual agreement,theAdministrator

### has detenninedthat:
1. OnoraboutMay 11,2011, MartinaireAviation, LLC (MT A)transportedbyairaone gallonofPmplePowerIndustrial StrengthCleaner/Degreaser, ahazardousmaterial.
2. Theabove-describedcleaningliquidwastransported inaircraftN9505B from Cadillac, Ivii (CAD) toLudington, IV1I (LDM) andthento CapitalCityAirport(LAN)inLansing, Ivii,whereitwas discoveredbyaFAASpecial Agent(SA)during aninspectionof MTA's compliancewithhazardousmaterialtransportationlaws. 3. Inthe course oftheinvestigation, an FAA special agent discoveredthat on or aboutMay 11,2011, aMTA employeeunlawfully transported hazardous material byair and therefore MT9A hadnot metits employee hazardous material training requirements.
4. Thematerial withinthe shipmentis classified as hazardous materials under Section 172.101 ofthe Hazardous Materials Regulations. Thepropershippingnamefor PutplePowerIndustrial StrengthCleaner!Degreaseris UN 1760, CorrosiveLiquidN.O.S., Class 8, PackingGroup II

. 5. Thishazardousmaterial shipmentwasnotdeclared, described, packaged,markedorlabeled as containinghazardous

### materialsorintheproperconditionfor

### transportaccordingtothe Hazardous MaterialRegulations.
6. The shipmentwasnotlabeledCARGO AIRCRAFTONLY.

# (



# c

( 7. At

### all times**i~**...mtionedherein, the shipment was not**a~;,_.vmpanied** bya Shipper's Declaration for Dangerous Goods.
8. MTAtransported the hazardous material above-described by airwithout shipping papers containingtheproper shipping name, withoutdelineatingthehazard class, withouttheprefix "UN" or "NA," as applicable; withoutthetotal quantityby weight or volume ofhazardous material, and withouta basic description ofthe hazardousmaterial.
9. MTAtransportedthe above-described hazardous material by air withouttheproper packaging orlabelingthatwould have indicatedthehazardousnature ofthe liquid.
1

0. MT A transportedby 

### airthe above-described hazardous material withouttheproper shippingname, assigned identification number, ortherequiredmarkings in English.
11. MTAtransportedbyairthe above-described withoutproperlypackagingthe hazardous material in accordance withthe Hazardous Material Regulations.
12. MT A didnotmake emergencyresponse information, includingtheemergency response telephone number, available for use at all times the hazardous material was present. Byreason ofthe above, it appears that MTA violated the following Department of TransportationHazardous Materials Regulations: a) 49 CFR §171.2(e) inthat MTAtransported by airhazardous material thatwas not properlypacked, classed, described, marked, labeled andwas not inconditionfor shipment asrequired by the Hazardous Material Regulations. b) 49 CFRPart 172.200(a), inthatMTAtransportedhazardousmaterial byair and did notproperlydescribe the material on shippingpaper. c) 49 CFRPart 172.204(a), inthatMTAtransportedhazardous material by air and did notproperlycertifYthat material inaccordance withtheregulations. d) 49 CFRPart 172.301(a), inthatMTAtransported hazardous material by

### air ina non-bulkpackage and did notproperlymarkthatmaterial inaccordance withthe regulations. e) 49 CFRPart 172.400(a), inthatMTA transported hazardousmaterial by air and did notproperly label thatmaterial in accordance withtheregulations; 

### f) 49 CFRPart 172.402(c), inthatMTAtransported by airhazardous material which is authorized on cargo aircraft ONLYifthepackageis labeled as CARGO AIRCRAFT ONLY as specified in49 CFRPart 172.448. g) 49 CFRPart 172.600(c)(2), inthat.MTA transportedhazardous materialby air and didnotprovideemergencyresponse information in accordance withthe regulations;

2

# ( h) 49 CFRPart

...L.702(a), inthatMTAdidnotensuretl.

__ employees involved 

### in the handling ofhazardousmaterials were trained inaccordance with subpartH ofpart 172;and i) 49 CPRPart 173.l(b),inthat MTAtransported hazardous material byairwhen

### that material was notpreparedinaccordance withtheregulations.

THEREFORE, ITIS ORDEREDunder49 U.S.C. §5123, and pUrsuantto the settlement agreement, thatyou aie assessed a civil penalty inthe amount of$15,000.00.
This Order**constitut~s** a finding bythe FAA ofthe facts andregulatory violations contained herein. The OrderAssessing Civil Penalty and MTA'spaymentofthe civil penalty do not constitute orimply admissions byMT A thatitcommittedthe violations found bythe FAA, or thatMTA agrees with thefacts averredtobythe FAA. (;{ Inorderto satisfypaymentofthecivilpenalty, youarehereby directed to make a payment

### of ' $15,000.00, bycertified checkormoney order, on orbefore June20, 2012 payableto the FederalAviationAdministration, to theAccounts Receivable Branch (AMZ-310-ACE/AGL), P.O. Box25082, OklahomaCity, OK73125. Inthealternative, youmaypayyourcivilpenaltywitha creditcard, or !lbankaccount**debit~** overthe futemet. To pay electronically, visitthe web site at https:/;\F,:>,rvv.pay.goy. Underthe SearchPublicForms option,type in "FGL-FINEI." Clickon "CivilPenattyPaymentsGreatLakes Region". Youmustthen completetherequested information and click "Continue." Youwillthenbe directed to enteryourcreditcardorbankaccount debit information. To usethebank account debit, you will needyourbankrouting number, account number, and checknumber. Delinquent debts maybe reported to consumerreporting agencies or**comm~rcial** credit bureaus, which would adversely affect your creditrating. Nonpayment ofthis debtmay ultimatelyresult in areferral to a collection agency, the futemal Revenue Service, orto the United States DepartmentofJustice for enforced collection.

By:

Cc: 

### Mr. MichaelDworkin Michael 

### L. Dworkin and Associates 465 CaliforniaSt., Suite 210 San Francisco, CA 94104

AGL-700 Jeffrey A. Klang Regional Counsel

Kate Barber Attorney

3

# •

EXHIBIT C
Exhibit 6 to Deposition ofPaul Daniel Klimas

FAA Case No. 2011SW700189 I DMS No. FAA-2013-0040 MARTINAIRE AVIATION, LLC'S RESPONSE AND OBJECTIONS TO COMPLAINANT'S MOTION FORDECISION

# (



# ( J



# ( -.:::,... ,·· • .o: 

# • ·,o

U.S. Department OfTransportation FederalAviation Administration NorthwestMountainRegion Colorado, Idaho, Moutana 

### Oregon, Utah, Washington Wy01ning 

### 1601 LindAvenue S.W. Renton, 

### Washington 98057 

### Tel: (425)**227~2007** 

### Fax: (42S) 227-1007 Ot'fie!e ofRegional Counsel
June 19, 2009 

### FAA Case No. 2009NM700058
SERVED: CERTIFIED MAIL- RETURN RECEIPT REQUES1'ED 

# ·ro: President Mm1inaire Aviation, LLC 4745 Frank Lak.e Drive Addison, "fX 7 5001 

### ORDERASSESSING CIVILPENALTY Otl April20) 2009, Martinaire Aviation, LLC was advised through aNotice 

### ofProposed Civil Penaltythatthe FAAproposed to assess acivil penalty inthe amount of$32,400.
After

### co11sideration ofall the 

### available inforn1ation, includingthe 

### infbnnation Martinaire 

### Aviation, LLC presented following issuance ofthe Notice, it

### has been determinedthat:
1.



### 2. 3.



### 4. 5. 

### 6. Martinaire Aviation, LLC (hereafter Martii.laire) is a business entitythat regularly offers, accepts, 

### ortransportshazardous material (HAZMAT). Martinaire is also 

### an air carrier with more than six pilots. On or aboutFebruary 3, 2009, Martinaire accepted and transported two shipn1ents tor 

### transport in air

### com1nerce: One shipment was offeredby

### BW Technologies at Honeywell ofArlington, Texas. This shipment was destined for PortAngeles, Washinf,'ion. This shipmentwas being transportedby use ofUnited Parcel Service trackingnumber lZ 6A5 69R01 5763 2618.
7. 1'his

### package was a 

### declared HAZMAT and the 

### shippingpapers identified

### the shipment as a Compressed gas, n.o.s. (nitrogenhydrogen suHide), Class 2.2, UN19S6. 8. The 

### second shipmei'lt 

### was offered by

### PML Microbio1ogicals, on <')t 

### about February 2, 2009, 

### at ornearWilsonville, Oregon.
9. 

### This shipm.e11t was 

### being transported byuse ofUnited 

### Parcel Service

### tracking number lZ 947141 01 5165 

### 1333.

ll3 39'VId**3~I'VINil~'VIW** 175LS617EGL6**f.~** EXHIBIT NO.

__ U

__ 

# aS· 1 

# 1'r)**~-----~-** ....

# ____ Silnbelt Rtportin11 & Liliptlon Senic:c as:E1 l113l/13l/l1

# c



# c

I**~Martinaire** Aviation, 

### LLC- 2009NM700058 June 19, 2009 Page2 

### 10. This shipmentwas destined ibrPort Angeles, Washington. 11. On February 3, 2009, both ofthe above shipments were in transit and being loaded on to Martinaireflight 690 at Boeing Field 

### in Seattle, Washington. 12. Priorto flight 690's departurej aFederal AviatiottAdministration (FAA) Haza1·dous Matelial Agentrequested thatthepilotproducethe notification to pilot in command for hazardous materials (NOPIC) forthat flight. 13. Thepilot was unable to product the NOPIC and departed for Port Townsend, Washington knowing thatthesehazardous materials were aboard. 14. The pilot departed withoutthebenefit ofa copy ofthe written notification to thepilot, to 

### inc1udethe·emergencyresponse infonnation during n·a\lSport of

## the HAZMA T aboa1·d the · aircraft while in flight. 15. 

### The FAA Haza1·dous Matelial Agentthen requested from Martinaire the NOPICs for the previous 90 days. 16. The following Martinaire NOPIC documents retained atMartinaire's principal placebusiness were determined to be defective: Date Flight# 

### Aircraft Tail 

### # PIC Employee# 11/7/08 

### 690 N1324G 4242 12/5/08 

### 690 Nl324G 4242 1129/09 

### 690 Nl324G 4242 

### 2/3/09 690 N1324G 4242 

### 2/3/09 690 Nl324G 4242



## -- ..

# _ 17. Specifically, each oftheabove Martinaire NOPIC documents failed to:

a. List the hazard class, packing group, ortotal number ofpackages; b. confinn thatno damage orleakingpackages havebeen loaded 011 

### the airct·aft;

c. coni'irmthatthepackage mustbe carried only on cargo aircraftifits tra11sportation abol:U"d**passenger~carrying** 

### aircraft is forbidden; or, d. indicate when applicable that ahazardous material was being carried under terms ofa special pem1it.

£0 39t'd**3~It'NLL~t'W** t>9L96PEU6

# (



# (**·M~rtinaire** Aviation, LLC- 2009NM700058 June 19, 2009 Page3 

# e.

Byreason 

### ofthe foregoing 

### circumstances, Martinaire violated the 

### tollowing Departn1et1tof Transportation Hazardous Materials Regulatio11s (49 C.P.R.):

a. Section 

### l75.33(b). it

### that

### it failed to 

### have available to 

### its pilot-in-command·a copy of"the 

### written notification to 

### the pilot, to include the emergencyrespo11se intcnmation during tra11Sport ofthe hazardous material aboard the airc..Taftwhile in 

### flight. b. Section 175.33(c)(2), 

### in that it

### failed to 

### retain a copy ofeach 

### notification 

### ofpilot-incommand 

### for 90 

### days atthe airport ofdeparture 

### orthe

### operator's principal 

### place of business.

c. Section l75.33(c)(3), 

### inthat it

### failed to have the

### information reqttiredto be

### retained U11der

..this.

### paragr.aph readily accessible atthe 

### airpor.t ofdeparture and tl1e.intended-airpor.t of

arrival 

### tbrthe 

### duration ofthe 

### flight leg. d. Section 175.33(c)(4), in

### that it failed. 

### to make available, upon request, to 

### an authorized official of

### aFederal, State, 

### orlocal agency 

### at reasonable tin1es and locations, 

### the documents 

### orinformation 

### required to 

### beretained by

### 49 C.F.R. 175.33. NOW, THEREFORE, IT IS ORDERED, 

### pursuant to Sectiot15123(a) ofTitle49 oftheUnited States Code 

### (Transportation) [49 U.S.C. §5123(a)], Martinaireis assessed a civil penalty

### in the amount

### of$20,000. Martinaire's payment 

### ofthe 

### <.:ivil penaltypursuant to 

### this Orderdoes not constihlte 

### orimply admissions by

### Martinairethat jt

### committed the 

### violations found 

### by the FAA, or that 

### Martinaire agrees with the 

### facts ave1Ted bytheFAA. However, 

### Martinajre acknowledges thatthis Order constitutes a finding by

### the FAA 

### ofthe facts and regulatory

### violations contained

### he.rein.
Wehereby acknowledge receipt ofMartiilaire's check in the amount of

### $20,000 (Check No. 00039365, 

### dated Jw1e 

### 3, 

### 2009, which we accept i11 

### full settlement ofthis matter. Martimtiremay considerthis t11atter 

### closed. Regards, DWIGHT S. WILLIAMS 

### Regio11al 

### Counsel

By:

### -~~~~~----­ cott R. 

### Morris FAAAttomey
MC/mc



### cc: Michael L. 

### Dworkin, Esq.

P9LS617€C:L6

# (



# (_ ...,_

MARTINAIREAVIATION, Ll..C.

.$ DATE 

## ·;96to3to9 ·'

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AEFERENOE AMOUNT PISCOUNT 

### 2009 20000.00 

## o.oo 20000.00

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### 5 200

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# • 0
U.S. Department OfTra11sportation FederalAviation Administration NorthwestMountainRegion**C~lorado,** Idaho, Montana 

### Oregon, Utah, Washington 

### Wyoming 1601 LindAvenue S.W. 

### Re11t6n, Washington 98057 Tel: (425) 227-2007 Fax: (425) 227w1007 Otlice ofRegional Counsel Apri120, 2009 FAA CaseNo. 2009NM700058 

### VIA REGULAR AND CERTIFIED MAIL -RET'ORNRECEIPT REQUESTED

President Martinaire Aviation, 

### LLC 4745 

### Frank Luke Drive Addison, TX 75001

NOTICE OFPROPOSED CIVILPENALTY
A reportof

### investigation indicates that:
1.


### 2. 3.

4. 

### 5.
6.


### 7.
8.
9. Martinaire Aviation,

### LLC (hereafter

### Martinaire) is abusiness entity

### that

### regulru:ly offers, accepts, or

### transports hazardous 

### 1naterial (HAZMAT). 

### Martinrure is also an air carrierwith

### morethan six pilots. On 

### orabout February3, 2009,

### Martinaire accepted andtransported two shipments for transportin

### air commerce. One shipment was offeredbyBW Technologies atHoneywell ofArlingtOll, Texas. This shipment was

### destined forPort

### Angele$, Washington. 

### This shipment

### was being

### transportedby use ofUnitedParcel Service

### tracking number lZ 6AS 69R 01 5763 2618. This**pacl~ge** was a declaredHAZMAT 

### and the shipping

### papers identifiedthe 

### sbipme11t as a Compressed 

### gas, n.o.s. (nitrogen.hydrogen sulfide), Class 2.2, UN1956. The 

### second shipment was offeredby PMLMicrobiologicals, onor aboutFebruary2, 2009, at 

### ornearWilsonville, Oregon. This 

### shipll'l.entwas being

### transported by**~LSe** ofU11ited Parcel Service

### tracking 

### number lZ 947 141 01 5165 1333. 10. This 

### shipmentwas destined

### for Port

### Angeles, Washington.

913 39'ii'd**3~I'ii'Nil~'ii'W** PSL961:>£2:L6 89!£! llBl/06/61

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### Ma:rtinaire Aviation, LLC- 2009NM70005'8 April 20, 2009 Page2 11. On February 3, 2009, both ofthe above shipments were in

### transit and being loaded 

### on to Martinaire flight 690 at .BoeingField iil

### Seattle, Washington. 12. Priorto 

### flight 690's depart:ure, aFederalAviation Administration (FAA) Hazardous Material 

### Agentrequested thatthepilotproduce the notificationto pilotin command for**ha~ardous** 

### ntaterials (NOPIC) for 

### that flight. 13. Thepilotwas unable to producttheNOPIC and departed for 

### PortTownsend. Washington !mowingthatthese haza:cdol.lS materials were aboard. 14. The

### pilot departedwithout the 

### be11efit ofacopy ofthe written 

### 11otification.to 

### thepilot, to 

### include the emergencyresponse info1mation during transport ofthe HAZMAT aboard the aircraftwhile ill

### flight. 15. The FAAHazardous Material Agentthenrequested from 

### Marti11aire the NOPICs for the previous 90 days. 16. Thefollowing Martinaire NOPIC documents retained atMartin.aire's principal placebusiness were determhted to be defective:

Date 

### Flight# Aircraft Tail

### # PIC Employee 

### # 1117/08 690 N1324G 4242
12/5/08 

### 690 Nl324G 4242 1/29/09 

### 690 Nl324G 4242 2/3/09 

### 690 Nl324G 4242 2/3/09 

### 690 N1324G 4242

17. Specifically, each of

### the aboveMartinaire NOPIC documents failed

### to:

a. List thehazardclass, packing group. ortotal number ofpackages; b. confirn1 thatno damage or leakingpackages have been loaded on the aircraft;

c. confirmthat the package mustbe canied only on cargo aircraft if

### its transportation aboard passenger-cmying aircraftis forbidden; or, d. indicate when applicable that 

### ahazardous material was being carriedunderterms ofa special 

### pem1it.

Lea**3El~d** P£LS6t>EGL6

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# c ' ,_

Martinaire

### Aviation, LLC- 2009NM700058 April 20. 2009 Page3 

### Byreason ofthe foregoing circumstauces, it appears that Martinaire violated the following Department ofTransportationHazardous Materials Regulations (49**C~F.R.):**


### a. Section l75.33(a)(1)> inthat it

### failed to provide the piiot-in-conunandwith the correct informationconcerning thepropershippingname, hazard class, and identification numberrelating to the shipments descli.bed above. b. Section 175.33(a)(2)> inthat

### it failed to provide thepilot-in-eommalldwith the correct informationconcerningthe total

### numberofpackages 

### as requitedby49 C.F.R. 175.33(a) relating to the shipments described above.

c. Section 175.33(a)(5), 

### inthat 

### itfailed to provide the pilot-in-co11.1111and with confit1nation that

### no damaged orleakiltg 

### packages had b-een loaded 011 

### the aircraft. d. Section 175.33(a)(9), 

### inthat 

### it

### failed to providethepilot-in-command with

### confirmation that the package 

### mustbe eaJ.1'ied 

### only on cargo aircraft

### ifits transportatiOli. aboard passenger-carrying

### aircraft is 

### forbidden.

e. Section 175.33(a)(10), in that

### it failed to provide the

### pilotMin.-commandwith an 

### indication whether ornot ahazardous material

### was being carriedl.lnder terms ofa special permit.. 

## ±: Section 175.33(b), it that 

### it failed to have available to itspilot-in-command acopy ofthe writtennotification to thepilot, to include the emergency

### response intbrmaii.on during trat.1Sport ofthe hazardous tnaterial aboard the aircraft while inflight.
g. 

### Section 175.33(c)(2), in

### that it

### failed to retain a copy ofeach lJOtification of**pilot-in~** 

### command for 90 

### days at tlte 

### airport ofdepartw:e orthe operatot'sprincipal place of business. h. Section 175.33(c)(3), 

### inthat it

### failed to have the intbm1ationreq1.liredto be retained underthis paragraph

### readily accessible atthe airport ofdeparture and the intended airport ofarrival for tl1e 

### duration ofthe flight leg. i. Section 175.33(c)(4), in that

### it failed to lli.ake available, 

### upon request, to an authorized official ofaFederal, State, orlocal agency atreasonable times and locations, the doc1.unents orinformation

### requiredto be retained by

### 49 C.P.R. 175.33. In

### accordance with 

### Section 5123(a) ofTitle49 oftheUnited States Code (Transportation) [49 U.S.C.**§~123(a)],** 

### Martinaire

### is liable for acivilpenalty not to exceed 

### $50,000 for 

### each violation oftheDepartment ofTransportationHazardous Materials Regulations. Afterreviewing ourinvestigative file, we propose to assess a civil penaltyinthe amount of $32,400.

80 3El'ii"d**3~I'ii"NilCI'ii"W** t>9L96t>£lL6

# ( _.·



### Martinaire Aviation, LLC- 2009NM700058 Apli120,2009 Page4 Enclosed is information concerning 

### Martil1aire's o-ptions inresponding to this Notice. 1'he options includeparticipating in aninfonnal conferencewith an FAA attorney and**s~tbn:rission** 

### of in±bnnation to the FAA for consideration. Itmay submit, in writing, its choice ofthe 

### altematives explained on 

### the enclosed

### infom1ation fonn, on orbefore thirty (30) days after

### it

### receives this Notice. If itfails to submit achoice within thattime, it 

### will have no fllrthet· rightto participate 

### in 

### the two informalprocedures listed above. DWIGHT S. WILLIAMS Regional Cotmse-1.-.-:-·-./,)

BY:

Enclosures: Infonnation Sheet/ReplyFomJ!.FAR 13.16 and Subpart G ofPart 13

6{3 39'i7d 179L9617EU6 

## ..

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# MARTINAIRE.._.___~~ February 20, 2009 Special Agent

### Michael B. Talon Federal Aviation Administration Security& 

### Hazardous Materials Division 1601 

### Lind AvenueS. W., Suite 530 

### Renton, W A 98057

### 4056
Ref: 

### LOI: 2009NW7000S8 To AgentTalon; Martinaire Aviation, L.L.C. ("Martinaire'') acknowledges receipt ofyour letter ofFebruary 6, 2009, received by this office 

### on February 12, 2009 

### regarding 1he 

### alleged violation ofHazardous Materials 

### Regulation 175.33 

### on February 3,

### 2009. Martinaire has reviewed yourLetter ofInvestigation and offers the following response. This response is 

### in addition to the 

### information previously provided to 

### you by 

### Martinaire ChiefPilot Captain Michael 

### Bates and 

### the information provided 

### and discussed with 

### you during telephone conversations between Capt. Bates and

### yourself. Martinaire's ApprovedHazardous Materials Program contains provisions and proceduresthat

### address the issuesraised inyour letter. Martinaire has the properforms 

### andprocedures that address each required item under49 CFR 175.33 and ourprogran.J and records beenreviewed, andpassed, during several FAA

### inspectionfield and office inspections overthe past

### several years. As background, Martinaireprovides abriefsynopsis asto what

### ourprogramconsists ofandthe procedures thepilots are to

### follow. When

### receiving a

### packagethatcontains Hazardous Material (l-IM), 

### Martinaire requires its Pilots to

### complywith all Hazardous Materials Regulations astheypertainto

### the specific itembeing carried; 

### oot Approved Program, and 

### ourTraining

### Program. The pilotisrequiredto not only visuallyinspectthe package, butto 

### also remove, review, andplacetheprovidedNOPC form in hispocket and carry

### to destination. PriortoputtingtheprovidedNOPC in

### his pocket, the

### pilottakesthe information from.

### the form and enters 

### iton Ma:rtinaire Form**MRA~HAZ02** 

### Form, a copy ofwhichis attached to this 

### response. 

### TI1e**MRA~HAZ02**

### Fonnwas designed to 

### be 

### used in 

### addition to the

### NOPCprovidedby

### the shipper. The NOPC that

### is usuallyprovideddoes notcontain all ofthe required informationunder49 CFR 175.33 andtherefore Martinaire, with

### the help and guidance ofFAAInspectors from the FAAFortWorth Regional Security & 

### Hazardous Materials Office, 

### developedthe MRA-HAZ02 Form**('~02 Form'~.**  The 

### 02 Fonn containsblocks to record the informationthat

### 49 CFR 175.33 requiresbutis notonthe shipperNOPC. Thatinformation includes RAMTI & Location,**Total~**DGIHMpackages onboard, 

### Cargo OnlyAircraft, 

### Special PermitRequired, Damaged orLeakingPackage Warning, General Information and contactnumber. and Captain's signature.
1 4745 Frank Luke Drive • Addison, Texas 75001 • 972.:..349-5700 • Fax 972-349-5750 • www.martinalre.com

tat 39\1d**3~I\1NI1~\1W** 179L96PEU6

### ( Oncecompleted, the pilotcalls all 

### ofthe information on the 02 FormtoMartinaire Dispatch, 

### wherethe informationisrecorded by

### theDispatcheronMartinaire Form**MRA~HAZO**

### 1and 

### saved for

### the required period oftime. In

### responseto

### yourinitial 

### phone call to Martina.ire, Capt. Bates conducted athoroughreview ofthe incident

### in BFI

### thatled

### to your investigationand ofMartinaire's

### procedures and

### training as

### tl1ey relate 

### to

### the carriage ofhazardous materials. Aspartofthe**review~** 

### the materials, forms, andprogramwere reviewed once again with

### anInspectorfromthe FAAFortWorth Regional Secutity & 

### Hazardous Materials 

### Office. Itis our conclusionthatMartinaire•s program andfonns do comply with

### 49 CFR 175.33 and that 

### all of 

### the informationrequired by 

### 49 CFR 175.33 is 

### accounted for in

### ourprogram. Asourintental investigationcontinued, itwas determinedthatpilotin question was 

### properly trained, having

### recently completed RecurrentTraining (as shown

### by the includedtrainingrecords) andwas aware ofthe ptoper

### wayto 

### l12ndle hazardous materials. Itwas also afinding ofMartinairethatthepilot hadinadvertently 

### usedhis lastcopy ofthe 02 Fonn inhis

### possession and didnothave any blank f.orms inwhich·

### torecordthe information. Therecords atthe

### Martinaire Dispatch Office do 

### containthe**req~d** 

### information, which shows that

### the pilotatleastknew whathe was supposed to do. As to why the pilotdidnotmakecopies ofthe 02 Form beforeusing the last one, orwhy

### he did not call Dispatchandrequestthat

### a blankform be 

### faxedto him; 

### inour**opinio~**

### thepilot

### failedto provide 

### anacceptable answer. ( As aresultofthis incident, Martinairetookthe

### following actions:

• sentoutaremindermemo to 

### all 

### Martinairepilotsconcerningthe need anduse ofthe 02 Fonn • printed additional new blank copies of the 

### 02 Form. and sentthem

### to the pilots • placed a copy oftheform on ourintercompany website so that 

### it

### canbe downloaded by

### the pilots, if 

### needed • gave the BFIpilotadditional 

### remedial training in

### the requirements aud use ofthe 02Form
As

### for the three items you asked tO! 

### in

### yourletter, and as we 

### discussedinourrelephone call ofFebruary 12th:



### • Item 1bad 

### beenpreviouslyprovided. • Item 2isincludedwith

### thisresponse. • Item 3 

### is listed 

### above. I am available to discuss the aboveresponse and canbereacheda:t 

### 972-349-5704. Professionally.

# ~~~ :Alan R.usinowitz 

### ExecVP&COO



### n**39~d** t>9L96t>EZL6 2

sg:et lt0Z/0Z/Zt

# ( u.s. Department ofTransportation Northwest Mountain Region Colorado, ldal'lo, Montana, Oregon Utah, wash!nston, Wyoming 6: Alaska SECURITY 

### a HAZARDOUS MATERIALS DIVISION 1601 Und Avenue s.w., Sulte 530 Renton, Washington 98057·4056 Federal AViation Administration T01: (425) 227•270Q Fax: (425) OZ27·1700

CERTIFIED'

### MAIL- RETURNRECEIPTREQUESTED
Mr. 

### MitchAcker P1·esident!CEO Martinaire Aviation, LLC 4745 Frank**L~e** 

### Drive Addison, TX 75001 DearMr. Acker: Letter ofInvestigation File Number: 2009NM700058 · February 6, 2009



### TheUnited States Department ofTranspol'tation (USDOT)/Federal Aviation Administration (FAA) is conducting an investigationconcerning the apparent failure ofMartinaire Aviation, LLC (MT9A) to comply with 

### Title 49, Code ofFederal Regulations (49 CFR), Section 175.33, Shippingpaper and notification ofpilotpin·comtrtand. 

### OnFebruary 3, 2009, priorto departure offlight 690, in Seattle, WA, King County International Airport/Boeing Field 

### (BFI), MT9A, pilot, Mr. Lance 

### Thompson, co1.tldnot provide anotification to pilot 

### in command for hazardous materials. FAA Inspector did confirn1 that hazardous materials were loaded onboard flight 690. As part ofthe inspection we 

### requested copies of

### notifications to pilot in

### command for the previous 90 

### days from BFI. 

### Listed below are details from the 

### 90 day file 

### records (Martinaire 

### NOPC 

### Information Form) obtained from dispatch and 

### provided by 

### MT9A Chief

### Pilot, Mr. 

### Mike Bates.**Th~se** 

### forms**f~il** 

### to meet some oftherequiremetlts of49CPR 175.33:
1. 

### Martinaire Date: 11/07/08 Flight#: 

### 690 

### AIC Tail #: 

### 1324G PlCEMPL#: 

### 4242 Acct

### # ftom NOPC: E29524 Emergency Contact#

### fTonl NOPC: (800) 424y9300 

### Reference# f'rom NOPC: 1ZE29S24016284l164 Description: Corrosive Liquid. Aliphatic Amines, UN2735 Quantity: 5Liters, POD D Dispatcher: Unknown

lt 39'i1d**3~I'i1NIH:I'i1W** PSL96PEZL6

# ( 2. Martinaii'e 

### Date: 12/05 Flight#: 690 

### AJC Tail 

### #: 1324G 

### PIC EMPL#: 4242

# e

!

.



### Acct #

### from NOPC: 629 654 

### Emergency Contact# from NOPC: 800 424-930 Reference # 

### f'rom NOPC: 982152 35276 

### Description: UN1282 Quantity: 1 

### 00 rnl, Zone 4 Dispatcher: Unknown 3. 

### Martinaire 

### Date: 1/29/09 Flight#:690 A/C Tail 

### #: 1**~24G** 

### PIC EMPL #: 4242 Acct

### #from NOPC: 6AS69R 

### Emergency Contact# from NOPC: 

### 800-424-9300 Reference # il:omNOPC: 184208 

### Description: UN1956, 

### nitrogen hydrogen sulfide Quantity: 

### 1box .037 kg, Zone 

### 5 Dispatcher: 

### Joe 

### 4. Martinaire Date: 2/3/09 Flight#: 

### 690 

### AJC Tail #: 13240 

### PIC EMPL #: 4242 Acct

### #fromNOPC: 947141 

### Emergency Contact#

### from NOPC: 

### 800-424-9300 Reference# from

### NOPC: 12874 

### Description: Ethanol solution, UN1170 Quantity: 1

### box 30 ml, 

### Pod D Dispatcher: 

### Joe Phillips

Et 39\:td**3~I\1N!l~\1W** P5L56P8GL6 as:Et lt0G/0Z/lt

# (_ . 

# ,:··

. ·

.... \. .}"" 

# •
(



### 5. Martinaire Date: 2/3/09 

### Flight#: 

### 690 

### NC Tail#: 1324G PIC EMPL

### #: 4242 

### Acct# 

### from

### NOPC: 6A569R Emergency Contact# from NOPC: 800424-9300 

### Reterence#fromNOPC: 184208A Description: 

### UN 1956, nitrogenhydrogen sulfide 

### Quantity: 0.037 kg, 1box:> 

### Pod C Dispatcher: Joe 

### Phillips Bach ofthe 

### records above failed to listthe hazard class, packing group, total number of 

### packages, confirmation thatno damage orleaking packages have been loaded onthe aircraft, confmnationthat the package must be can·iedonly oncargo aircraft 

### ifits transportation aboard

### passenger-carrying aircraft 

### is forbidden, 

### an indication when applicable 

### that a hazardous·material is 

### being carried u11der 

### terms ofa special permit. You are being provided an opportunity to reviewthe events associated with this allegation, 

### and furnish any information ormaterial you deem relevantto the investigation. Your 

### response should

### include: 1. Hazardous 

### materials trainingrecords 

### for all employees involved 

### with the acceptance. rejection, handling and loading ofhazardous 

### materials atyour BFI station, 2. Hazardous materials training 

### record for MT9A Pilot> Mr. Lance 

### Thompson. 3. A

### description of

### proposed actions 

### to prevent similar incidents in the future

.



# . Please be advised, the allegation contained herein does not necessarily include all deficiencies thatm.ay be subsequently discovered 

### d\1ring the course ofthis investigation. Yourresponse, if

### any, is 

### needed within 10 

### business days after receipt ofthis letter and may 

### be sentto.

### my attention 

### at the letterhead address. 

### Ifwe do notreceive a writtenrespo11Se withinthe 10-daytime

### period, we must 

### concl\ldethis investigation without the 

### benefit ofyour statement. Ifyou have 

### any questions regarding this matter, please feel free to contact me at (425) 227-2724. Sincerely,



### Michael B. Talon 

### Special Agent Seattle Offiee Security and 

### Hazardous Materials

Pt 39t'd**3~H1N!l~'i1W** P9L96PElL6

# • •

EXHIBIT D Deposition ofMichael Bates

FAA Case No. 2011 SW700189 I DMS No. FAA-2013-0040 MARTINAIRE AVIATION, LLC'S RESPONSE AND OBJECTIONS TO COMPLAINANT'S MOTION FOR DECISION

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### ' l

.......**~.** 

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FEDERAL AVIATION ADMINISTRATION v. MARTINAIRE Deposition of: MICHAEL BATES 5/16/2013

1
2 3 4 5
6 7 6 9 10 11 12 13 14 15 16 17 16 19 20 21 22 23 24 25

1 2 3
4 5
6
7 B 9 10 11
12 13
14 15
16 17 18
19 20
21
22
23 24 25 U.S DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION OFFICE HEARINGS WASHINGTON, DC In the Matter of: I FAA DOCKET No. FAA-2013-0040 Martinaire Aviation LLC ) FAA CASE No. 2011SW700189 ) (Civil Penalty Action) Respondent

******************************************************** ORAL DEPOSITION OF

MICHAEL BATES
MAY 16, 2013 ************************************'********************

ORAL DEPOSITION OF MICHAEL BATES, produced as a witness at the instance of the FAA, and duly sworn, was taken in the above-styled and numbered cause on May 16, 2013, from 9:04a.m. to 10:59 a.m., before Kristin McDowell, CSR in and for the State of Texas, reported by machine shorthand, at the offices of FEDERAL AVIATION ADMINISTRATION, 2601 Meacham Boulevard, Fort Worth, Texas 76137 pursuant to the Federal Rules of Civil Procedure.

APPEARANCES
Mr.James Archier FEDERAL AVIATION ADMINISTRATION Office ofRegional Counsel Southwest Region 2601 MeachamBoulevard FortWorth, Texas 76137-4298 Phone: (817) 222-5099 Fax: (817) 222-5945 JAMES.ARCHIER@FAA.GOV COUNSEL FORFEDERAL AVIATION ADMINISTRATION

-andMs. Becky Holms FEDERAL AVIATION ADMINISTRATION Office ofRegional Counsel SouthwestRegion 260I Meacham Boulevard FortWorth, Texas 76137-4298 Phone: (817) 222-5099 Fax: (817) 222-5945 COUNSEL FORFEDERALAVIATION ADMINISTRATION

Mr.Michael L. Dworkin MICHAELL. DWORKIN & ASSOCIATES 465 California Street Suite 210 San Francisco, California 94104 Phone: (415) 421-2500 Fax: (415)421-2560 E-MAIL: LAW@AVIALEX.COM COUNSELFOR MARTINAIRE

Also Present: Mr. Alan Rusinowitz 1

2 1
2 3
4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 

### 1 (Pages 1 to 4)
3 INDEX PAGE APPEARANCES

............... . 2 WITNESS MICHAEL BATES

DIRECTEXAMINATIONBYMR. ARCHIER.. . 4 Signature and Corrections

. . . . . . . . 71 Reporter's Certificate.

. . . . . . . . . 73 EXHIBITS NO. Description PAGE :MB-1 Notice.

. . . . . . . . . . . . . . . . . 04 :MB-2 Complaint

. . . . . . . . . . . . . . . . 24 :MB-3 Answerto Complaint

........... 25 :MB-4 NOPC Training Record.

. . . . . . . . . . 35 :MB-5 NOPC Document

.............. 41 :MB-6 NOPC Document

. . . . . . . . . . . . . . 45 :MB-7 NOPC Document

.............. 46 :MB-8 NOPC Document.

. . . . . . . . . . . . . 47 :MB-9 NOPC Document

. . . . . . . . . . . . . . 49 :MB-10 NOPC Document

.............. 51 :MB-11 NOPC Document

. . . . . . . . . . . . . . 53 :MB-12 NOPC Document

.............. 54 :MB-13 NOPC Document

. . . . . . . . . . . . . . 55 :MB-14 NOPC Document

..... , . . . . . . . . 56 :MB-15 NOPC Document

. . . . . . . . . . . . . . 58 :MB-16 NOPC Document.

............. 59 :MB-17 E-mail.

. . . . . . . . . . . . . . . . . 67

PROCEEDINGS (Oath administered.) MICHAEL BATES, having been first duly sworn, testifies as follows: EXAMINATION BY MR. ARCHIER:

Q. Goodmorning, Mr. Bates. How are youtoday? A. Fine, sir. Q. Thank you for coming. My name is James Archier. I'm the attorney who will be taking your deposition today. The other attorney in the room is Ms. Becky Holms.

A. Okay. MR. ARCHIER: Ms. Court Reporter, would you please mark this as MB-1 for identification. (Exhibit No. MB-1 marked.) MR. ARCHIER: And, Mr. Dworkin, I believe I gave you a notice yesterday. Do you still have that notice? MR. DWORKIN: Yes, I do. MR. ARCHIER: All right. 4

Q. (BY MR. ARCHIER) Mr. Bates, I'm showingyou what is marked as MB-1 for identification. Have you seen this notice ofdeposition before?

A. No,sir. 

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FEDERAL AVIATION ADMINISTRATION v. MARTINAIRE Deposition of: MICHAEL BATES 5/16/2013

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Okay. Your Honor-- I mean. Thankyou very much. MR. DWORKIN: Counsel, ifit would expedite things, we can stipulate that the exhibits from the

-- MR. ARCHIER: It won't. MR. DWORKIN: Okay. MR. ARCHIER: Okay. MR. DWORKIN: Okay. MR. ARCHIER: All right. But I appreciate 5 1 2 3 4 5 6 7 8 9 that. It won't. 1 0

Q. (BY MR. ARCHIER) How long have you been employed 11 with Martinaire?

A. Since May of 1999. Q. Okay. Andpriorto May of 1999, where were you employed?

A. I was a flight instructorin Oklahoma. Q. Okay. What was the name ofthat company? A. Itwasjustme teaching people at the airport. Mike Bates teaching people, not a company.

Q. So you were like a private instructor? A. Yes. Q. Okay. And how long were you doing that instruction?

A. About a year. Q. About a year? Okay. 6 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Were youworking ata company priorto that? 1 A. Yes. Itwas a construction company. I was a 2 corporate pilot. 3

Q. Whatwas the name ofthat company? 4 A. Okemah Construction. 5 Q. Can you spell thatforme. 6 A. 0-K-E-M-A-H, Construction. 7 Q. And yourtitle whatwas again? 8 A. Corporatepilot. 9 Q. Whatyears were you there? 1 o A. January '98 till February '99. 11 Q. Describe yourduties to methere, please. 12 A. At Okemah Construction? 13 Q. Yes, please. 14 A. Preflight the airplane, show up one hour prior 15 to

- or two hours priorto scheduled departuretime, 16 preflight getthepassengers on board, transportthem 1 7 from A to B. 1 8

Q. Okay. 19 A. Spend the day with them, fly them home. 20 Q. Okay. There's some preliminary matters, Mr. 21 Bates, that I should have gone through priorto starting 2 2 this deposition. I'm going to back up, andthen I'm 2 3 going to go back to your -- these preliminarymatters. 2 4 And I apologize for gettingjump started without going 2 5 

### 2 (Pages 5 to 8)
7 through these preliminarymatters. This deposition is takenpursuantto notice and in accordance with theFederal Rules ofCivil Procedure. Duringthe course ofthe deposition, ifyou'd answerout loud, no nods or shakes ofthe head, I'd appreciate that. Do we understand that?

A. Yes, sir. Q. Okay. Ifl ask you a question that youdon't understand, ask meto repeatitorrephrase it, and I will do so. Do you understand that?

A. Yes, sir. Q. Okay. Ifyouneed a break, letme know oryour counsel know, andwe will work that out so youcan have
a break. Understand?

A. Yes, sir. Q. Okay. Wehave waterhere ifyouneedwater. If youneed to take any otherkind ofbreak, wecan take that, okay?

A. Yes, sir. Q. All right. Is there anything about your physical, emotional, ormental condition that will not allow you to understand my questions today?

A. No, sir. Q. Ifthat changes, will youpromise to tell me? A. Yes, sir.

Q. Okay. Is there anything aboutyourphysical, emotional, ormental condition that will not allowyou 8

to give full and complete answers to my questions today?

A. No, sir. Q. Ifthatchanges, will youpromise to tell me? A. Yes, sir. Q. Okay. Are youon any medications that will make itdifficult for youto understand my questions today?

A. No, sir. Q. Are you sicktoday? A. No,sir. Q. Okay. Are youcurrently under doctor's care? A. No, sir. Q. Okay. Any alcohol within the last eighthours? A. No, sir. Q. Okay. Is there any otherreason youthink

-- thatyou can think ofas to why youwon'tbe able to answermy questions fully andtruthfully?

A. No, sir. Q. Okay. Now, I wantto go back to Okemah Construction.

A. Yes, sir. Q. Youworked, you said, as a corporatepilot? A. Yes. Q. Okay. And you worked there from approximately 

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9 11 1998 until whatdate? 1 A. In Dietzenbach, Germany.

A. February 1999. 2 Q. Were you born in Germany? Q. Okay. Andjusttell me a little bit aboutyour 3 A. Yes, sir. duties as a cotporatepilotthere. 4 Q. Where at?

A. I'd have to checktheweather, preflightthe 5 A. Heilbronn. It's south central. aircraft. 6 Q. South central? What's a majorcity nearthere?

Q. When you say preflight the aircraft

-- 7 A. Stuttgart. A. I'd inspectit. 8 Q. And you came to theU.S. during what year? Q. Okay. 9 A. 1987. A. Forairworthiness, make sureit's safe to fly, 10 Q. 1987? fueled, cleaned, and then fly the passengers. 11 A. Yes, sir.

Q. Okay. And what type offlying routes wereyou 12 Q. From 1995 to 1998 were you employed or ...? doing? 13 A. Flightinstructing.

A. Nationwide. 14 Q. Okay. Where was that at? Q. Nationwide? 15 A. Oklahoma City and McAlester. A. Yes,sir. 16 Q. And was that for anyparticularorganization? Q. And were youjustflying theemployees around or 17 A. Freelance. cotporate executives? 18 Q. Freelance? And when you freelanced, who would

A. Corporateexecutives. 19 you do

-- who would you be freelancing for? Q. Okay. Priorto being atthat company, where were 20 A. Local people thatlive near there

-- in thattown you at, sir? 21 that want to learn bow to fly.

A. I was in the Air Force. 22 Q. Where did you learn howto fly? Q. In the Air Force? 23 A. In Blytheville, Arkansas. A. Yes, sir. 24 Q. Under what school? Q. And whatwas yourrankin the Air Force? 25 A. Freelance. 10 12 A. Staffsergeant. 1 Q. Freelance? Q. And what years were you in the Air Force? 2 A. Yes, sir. A. 1987 to 1995. 3 Q. And during whatperiod was thatthatyou learned Q. Prior to the Air Force, were you in school or did 4 how to fly? you...? 5 A. Spring of1989.

A. Yes, sir. 6 Q. In any ofyourpreviousjobs, did you haveto Q. Okay. Tell me about youreducational background 7 deal with hazmat? and

... 8 A. No,sir.

A. Took college in Germany. 9 Q. Now, I want to go back. You said you started Q. You did

-- from what years were you in college? 10 with Martinaire in 1999, correct? A. Fouryears back from 1987. 11 A. Yes, sir. Q. So what was the name ofthe school you attended? 12 Q. All tight. Whatwas yourfirstjob with A. It's a German name. It's Heinrich and then Mann, 13 Martinaire? M-A-N-N, Schule, school. 14 A. Caravan pilot.

Q. Where is that located at? 15 Q. Okay. When you say Caravan pilot, whatdo you A. In Dietzenbach, Germany. 16 mean bythat? Q. What's that near? 17 A. Cessna 208 Caravan. A. Frankfurt, Germany. 18 Q. Okay. And did you-- how long were youin that Q. What was your area ofstudy? 19 role as a Caravanpilot? A. Foreign languages. 20 A. Until April 2000. Q. Foreign language. Do you speak German? 21 Q. Whatposition did you assumenext? A. I speak German and French. 22 A. Metro captain. Q. Priorto that, were you in high school or...? 23 Q. Whatdoes that mean? A. Yes, sir. 24 A. Differenttype airplane. Q. Okay. Where was that located? 25 Q. Okay. Whatkind ofaitplane --isthat thename 

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### 4 (Pages 13 to 16) 13 15 ofthe airplane? 1 A.

- check airman.

A. Metroliner, yes. 2 Q. Okay. And when you say -- tell me about your Q. Metroliner? Okay. How does that differ from the 3 dutiesjustas apilot. Caravan? 4 A. Cometo work one hour priorto departure, check

A. Ithas two engines, it's faster, itcarries more. 5 theweather, inspect your aircraft, make sureit's safe Q. Itcarries more? 6 to fly, reportthatto dispatch thatyou're readyto go. A. Yes, sir. 7 The UPS truckwill show up, load up the airplane with Q. Okay. Were you flying basically the same 8 cargo, and then depart. territory? 9 Q. Okay. And you also said you did work as a check

A. No, sir. 10 airman? Q. Okay. When you were flying the Caravan, what 11 A. Yes, sir. territory were you flying? 12 Q. Okay. Now, tell me what that entails.

A. Oklahoma. 13 A. You check the proficiency ofother pilots to make Q. Just Oklahoma? 14 sure their six-month and one-year checks are A. And Texas. 15 satisfactory. Q. Oklahomaand Texas. When you were flying the 16 Q. Does thatmean their currency to fly? Metro, what area were you flying? 17 A. Yes, sir.

A. New Orleans,Louisiana, upto Cincinnati

-- 18 Q. Okay. And in 2003 you became the chiefpilot? Kentucky. The airport's in Kentucky. It's called 19 A. Yes, sir. Cincinnati. 20 Q. Tell me about the duties, your duties as a chief

Q. And you operated as -- the Metro from up until 21 pilot. whattime? What was the last date? 22 A. Basically make sure thatthe other pilots that

A. November 2000. 23 I'm supervising are safe, legal, and I use the General Q. Afterthat what did you do? 24 Ops Manual as guidance as myjobdescription's listed in A. I came to Dallas. With Martinaire came to Dallas 25 there, and I reportto director ofoperations. 14 16
to fly the Metro. 1 Q. Who is the director ofoperations?

Q. Okay. And you flew the Metro in Dallas, and that 2 A. Mr. Rusinowitz. territory would've included what? 3 Q. Okay. How many people report to you?

A. Oklahoma, Texas. Sometimes further, butI can't 4 A. Usually about45 people. remember where those were. 5 Q. Forty-fivepeople?

Q. Okay. And you flew the Metro in the Dallas area 6 A. Yes, sir. for how long? 7 Q. Okay. Forty-five people thatreport to you, are

A. Until November 2001. 8 they all pilots? Q. After 2001 what did you do? 9 A. Yes, sir. A. Caravan again. 10 Q. And what areas do those pilots fly? Q. Caravan. Same territory? 11 A. Nationwide, sir. A. Yes, sir. 12 Q. Okay. Do you-- would you be able to describe Q. Okay. So from 2001 how many years did you fly 13 the territories that they fly? the Caravan? 14 A. Yes.

A. I still do, sir. 15 Q. Could you tell methat, please? Q. Okay. Butduring thatperiod oftime from 1999, 16 A. Should I go by states? did youprogress up the ladder in terms ofyour title? 17 Q. Ifyou could. Whichever is easier for you. I mean yourfirstjob-- I presume, when you came in in 18 A. North Dakota, South Dakota, Pennsylvania, Texas, 1999 you didn't come in as the chiefpilot? 19 Arkansas, Oklahoma, California, Oregon, Washington,

A. Correct. 20 Michigan. I thinkthat's it. Q. When did youbecome chiefpilot? 21 Q. Okay. Is Martinaire a cargo operator only? A. 2003. 22 A. Yes, sir. Q. Andpriorto 2003 you werejusta pilot? 23 Q. Okay. Are youthe largest cargo operator in the A. And a check airman. 24 country? Q. And a-- 25 A. No,sir. 

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 17 Q. Okay. Are you the largest feeder cargo operator 1 inthe country? 2

A. No, sir. 3 Q. What-- how do yourank intenns ofsize? 4 A. Medium size. 5 Q. Medium, okay. 6

Now, howmany aircraft does Martinaire have? 7 A. I don'tknow for sure. 8 Q. Okay. Whattype ofaircraft do they have? 9 A. Caravans, Cessna 208. 1o Q. Cessna 208s? 11 A. And theBeechcraft 1900. 12 Q. Okay. How much does a Cessna cost approximately? 13 MR. DWORKIN: You mean Cessna 208? 14 MR. ARCillER: Cessna 208. 15 MR. DWORKIN: Ifyouknow. 16 A. I don't know. 17 Q. (BYMR. ARCHIER) You don't? 18 A. It'stoo variable. 19 Q. Whyis it variable? 2o A. New they cost more than used. 21 Q. Okay. Do youhave any idea about the cost ofa 2 2 Beechcraft? 2 3

A. No,sir. Q. Okay. As chiefpilot what's your salaryper 18 24 25

year? 1 MR DWORKIN: Objection. It's notrelevant. 2 Q. (BY MR. ARCHIER) You may answer. 3 A. I'd have to go look at my pay statement. 4 Q. Roughly? 5 A. Sixty. 6 Q. Sixty, okay. And the pilots that fly the routes, 7 generally how much do they earn? 8

A. Depends on how long they've been with the 9 company. 10

Q. Okay. Can youtell me in more detail about your 11 duties as chiefpilot, please. 12

A. Recruit new pilots. I train them, with help from 13 otherpeople. Someone-- you know, make surethey come 14 to work on time, make sure they're in uniform, and make 15 sure they follow the right FAR's, make sure they 16 basically do theirjob. And I reportto my boss if 17 there's something I need approvarfor. Well, 18 management-- I guess supervisor. Supervise other people.

Q. Anything else? A. No, sir. Q. Okay. With regard to training, Ijustwant to focus on that for a moment. What type oftraining are you involved with with Martinaire? 19 20 21 22 23 24 25 

### 5 (Pages 17 to 20)

A. Flighttraining. Q. Flight training? A. Yes,sir. Q. And what does that entail, flight training? A. Regulations, airman information manual, aircraft, performance, navigation, weather.

Q. Okay. And do you train the new pilots when they
come through the door?

A. Specifically for the company, yes. Q. Okay. Do you do any hazmat training? A. Yes,sir. Q. Okay. Tell me about the hazmat training that you do.

A. We have a hazmat training program. Q. Okay. A. And we follow thatprogram. Q. Okay. Tell me about that program, please. 19

A. Well, it's in our General Ops Manual. It's a FAA-approved program. We have certain requirements that
we have to follow for X amount ofhours training.

Q. Who do you administer that training to? A. Everybody, all the pilots. Q. All the pilots. Okay. And is it recognition training for hazmat?

A. Yes, sir.

Q. Okay. Is itany awareness training? A. Yes,sir. Q. Okay. Is it safety hazmattraining? A. Yes,sir. Q. Okay. Is there any other areaofhazmattraining that I missed?

A. No,sir. Q. Okay. Do you also train thepeople in dispatch regarding hazmat?

A. Yes, sir. Q. Tell me about thattraining. Is thatthe same training that you administerto thepilots?

A. It's almost identical, butbecause oftheir function, the difference that they have to record the information comingfrom pilots, it's -it'sthatplus 20

the specific howto do it. Howto record it and whatto do with the forms oncethey've beenrecorded.

Q. And oncethey record it, whatdo they do with the forms?

A. They storethem in a binder. Q. Okay. And where is thatbinderkept? A. In dispatch. Q. Is there a person responsible for maintaining that binder?

A. Yes. 

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 21 Q. Who is that? A. Myself. Q. Okay. And in that binder, would that be where all the Notification ofPilot-in-Command forms are?

A. Yes,sir. Q. Andyouput notification ofpilot-- notification ofpilot information forms in there on a daily basis?

A. Yes, sir. Q. Ifthere are mistakes on that form, how do you determine whether the pilotmade the mistake or dispatch made the mistake?

A. IfI find a mistake, I have to go research where it came from, where the mistake came from. Itcould be
a typo, butit's caught atthe dispatcher's level. So it depends on the case.

Q. Okay. You say you have to research it. Give me an example ofthe type ofresearch you would do.

A. Lookin the A.I.R. Shipper's regulation book, there's a table that shows chemical names and UN IDs and
see ifthey match orifthis was simply a six thatlooks like a G, for example. I can find thatprettyquickly by going to theperson who may have written it down. If they don't know, look in the book.

Q. Okay. And ifyou find a mistake, are corrections done atthat time? 22

A. Yes, sir. Q. Okay. Do you-- so you conduct the audit, then, ofthat book on those NOPC forms?

A. Yes, sir. Q. And you conduct that audit on a daily basis? A. Yes, sir. Q. When you find mistakes, when do you determine additional training that's necessary?

A. Sometimes it's not required because the mistake wasn't made because ofa training deficiency.

Q. What would the mistake be? A. A number written down, like, not very neat or transpose a number, then you would tell theperson say, Look, make sureyou're more accurate.

Q. Okay. A. The only kind ofmistakethat I can think of. Q. Okay. Are you familiar with the allegations in the FAA's lawsuit against Martinaire?

A. Yes. Q. Okay. Tellme about yourfamiliarity. A. We had some notification pilot command forms that
were - that were incorrect.

Q. Okay. Anything else? A. No,sir. Q. Okay. So youbasically, how did you gain that 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

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### 6 (Pages 21 to 24)

knowledge about

-- from the inspection or...?

A. Yes, sir. From the inspection. Q. Okay. How did you gain knowledge aboutthe complaintitself?

A. Through my supervisor. Q. Through your supervisor. Okay. What didhe say to you about that?

A. That we haveto make changes. Q. Okay. And whatkind ofchangeswas he talking about?

A. Quality assurance, double-checking. Q. Didyoumake those changes? A. Yes, sir. Q. Tell me about those changes. A. We redesigned the NOPC form itself. Q. Okay. When wasthat done? A. On the spot, immediately. Q. Immediately. A. Yes,sir. Q. Okay. A. The day ofthat inspection. Q. What changes were done to that form? 23

A. It was made easierto read, easierto understand, with emphasis on the materials.

Q. And when you say the materials, you mean the

hazard--

A. The hazmats, yes. Q. Has that seemed to help? A. Yes, sir. Q. Okay. What othertype ofchanges didyoumake? A. The auditingprocess became more thorough. Q. Tell me about the auditingprocess. A. Myselfand my assistant were the onlytwopeople that auditthem daily.

Q. Okay. Your assistant would beMr. Cory Smith? A. Yes, sir. Q. And do both ofyou look at them individually? A. Depends. Ifwe're both there, yes. Like today he's doingit; and I'm here, so I'm not doingit.

Q. I understand.

Werethere any other changes that weremade? A. No, sir. Q. Okay. MR. ARCHIER: Would youmark this as MB-2, please. (ExhibitNo. MB-2 marked.) 24

Q. (BYMR. ARCHIER) Mr. Bates, I'm showing youthe complaintthatwas filed in this action against Martinaire. Have you ever seen this complaintbefore?

A. I don't know. 

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 29 A. I don'tremember each pilot. Q. Okay. Sowas that individual, one on one? A. Yes, sir. Q. So you wouldn't havejust shown all the pilots another PowerPointpresentation on hazmat?

A. Well, they all received in-house training. Q. Okay. A. Butthe individuals was done on top ofthat. Q. Okay. So you sat down with each individual pilot, and you talked to them about the seriousness of this matter?

A. Yes. Now, notin person. On the phone. Q. On the phone? A. Yes, sir. Q. Okay. Andhow long would that conversation last? A. Depends. I don'trecall. Q. And what type ofthings would you go into when you talked to each pilot?

A. The Arizona NOPC would be discussed. Q. Okay. Roman numeral two I, "Counseled all flight department and dispatch personnel in the interest of preventingrecurrence." When we say flight department, who are we talking about?

A. Pilots and dispatchers. 30 Q. Pilots and dispatchers? Okay. Didyou sit down
one on one and talk to all the dispatchers?

A. Yes, sir. Q. How many dispatchers are we talking about? A. Itvaries. Sometimesthere's four, sometimes there's five.

Q. Okay. And when you say it varies, arewetalking about at any given time in the dispatch office, there would be maybe four or five?

A. Like, atthe time, I don't know how many we had
on staff.

Q. Okay. How many dispatchers do you have on staff now?

A. I don't know the actual count. Q. Okay. Is there only one dispatch office? A. Yes. Q. Okay. And that dispatch office is

-- operates out ofAddison; is that correct?

A. Yes. Q. Okay. So the pilots, no matterwhat states they're flying into, they're going to call the dispatch office in Addison?

A. Yes. Q. And then the dispatch office in Addison is going to write down the information on the NOPC form-- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

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### 8 (Pages 29 to 32)

A. Yes. Q.

-- to dispatchers. Okay.

And what's the name ofthe head dispatchperson? Is there a manager?

A. Now? Q. Who-- A. JenniferMoore. 31

Q. Okay. When you say "now," I presume there wasn't
a managerbefore?

A. There was a managerbefore. Q. Okay. Who was that? A. That wasJermaine Peacher. Q. Okay. Did Jermaine

-- can you spell that? A. No,sir. Q. Okay. You don'tknow how to spell the lastname? A. No,sir. Q. Okay. When did Jermaine leave? A. I don't remember. Q. Was itrecently? A. No,sir. Q. Okay. And the person who's heading the dispatch office now, her name again?

A. That'sMs. Moore. Q. Is thatJennifer Moore? A. Yes, sir.

Q. Take a look at Roman numeral triple I. 32

You "revised its hazmattrainingprogramto specifically address any problems and ensure future compliance." Did you make revisions in the written training program document?

A. Yes. Q. Okay. What were those changes thatwere made? A. The notification pilotcommand form change. It changed the training program also.

Q. And youjustreincorporated that-- A. Yes,sir. Q.

-- into that?**~y** other changes to the hazmattraining program? A. No, sir. Q. Okay. Take a look atRoman numeral four I, little four I, "Revised the NOPIC form to make itmore user friendly." I believe we've discussed that; is that correct? A. Yes,sir. Q. Five, "Provided its personnel with additional hazmat training so as to preventrecurrence ofsuch incidents including: Hazardous material recognition, acceptance and transport ofdangerous goods, proper completion and [sic] revised NOPC form." And the personnel refers to both the dispatch and 

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33 35 the pilots? 1 A. No, sir.

A. Yes,sir. 2 Q. Okay. Q. Okay. Roman number six, "Implemented a program 3 (Exhibit No. MB-4 marked.) ofdaily audits ofall NOPIC's which have since shown 4 Q. (BY MR. ARCHIER) Mr. Bates, I'm showing you what that compliance has been achieved." 5 is marked as MB-4 for identification. Why don't you Andthat's Mr. Bates and Cory Smiththat do that? 6 take a look at it, the first page. Just look at the A. Yes, sir. 7 first page, and then when you're finished looking at the Q. Take a look at Affirmative DefenseNumber 7. And 8 first page, let me know. Ijustwant to focus on it. I want to go through this 9 A. (Witness complies.) Yes, sir. paragraph Roman numeral by Roman numeral. The first one 10 Q. Okay. Is that your signature, says -- you see in that Roman numeral one? 11 manager/instructor, at the bottom?

A. Yes. 12 A. No,sir. Q. Ifyou canreadthat to yourself, it says, 13 Q. Whose signature is that? "Complainant's case is devoid ofany sense of 14 A. I don'tknow, sir. proportion." Doyouknow whatthatmeans? 15 Q. Okay. Is

-- do you know Jermaine Peacher?

A. No,sir. 16 A. Yes, sir. MR. DWORKIN: I'm goingto object. These 17 Q. Is Jermaine Peacher still employed with
are legal pleadings. I authored them. I did not seek 18 Martinaire? Mr. Bates' approval or consent when I drafted them. 19 A. No,sir. This is --youknow, these are basically legal 20 Q. Okay. Do you know when Mr. Peacher left? arguments. 21 A. No, sir. MR. ARCHIER: And I understand your 22 Q. Ifyou can, speak a little louder, sir. objection. 23 A. Yes, sir.

Q. (BYMR. ARCHIER) You may answer. 24 Q. Would you like any water? A. Can you repeat the question. 25 A. No, sir. 34 36 Q. Do you understand Roman numeral numberone? 1 Q. Okay. Doyou know Kyra Davis? A. No,sir. 2 A. Yes, sir. Q. Okay. Take a look at Roman numeral numbertwo, 3 Q. Is she still employed with

-- "During the period oftime covered by complaint, 4 A. No, sir. Martinaire carried some 500 to 600 shipments all without 5 Q. Do you know when she leftthe employment? incident." Do you know whetherthat's true ornot? 6 A. No, sir.

A. No,sir. 7 Q. Do you knowTalenaPenn? Q. Okay. Take a look at Roman numeral numberthree. 8 A. Yes, sir. "The NOPIC's examined by the FAA inspection team on July 9 Q. Is she still employed with Martinaire? 8, 2011, which gives rise to this case covered aperiod 10 A. Yes, sir. of90 days. The total number ofNOPIC's examined by the 11 Q. Is she located in the dispatch office

-- in FAA was 500 to 600." 12 Addison, correct? Do you know whether that's true or not, that 13 A. Yes, sir. statement? 14 Q. Okay. Is she

-- and I presume sheworks as a

A. No,sir. 15 dispatcher, correct? Q. Okay. "Ofthis total number, only 12 were 16 A. Yes, sir. observed to have any discrepancies." Do you know 17 Q. Does she workrotating shifts? whetherthat's true? 18 A. I don't know, sir.

A. No,sir. 19 Q. Okay. Do youknow Matthew Gunter? Q. Okay. Ifyou could speak a little louder, I'd 20 A. Yes, sir. appreciate it, Mr. Bates. 21 Q. Does MatthewGunter still work with Martinaire? Take a look at Roman numeral number four. 22 A. Yes, sir. A. Yes, sir. 23 Q. Do youknow Isaac

-- well, I knowhowto Q. Do you know whether Martinaire has lessthan a 24 pronouncehisname: Rusinowitz. Do you know hundred employees? 25 Mr. Rusinowitz? 

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### AINAIRE 5/16/2013 10 (Pages 37 to 40) 37 39 1 A. Yes, sir. 1 2 Q. And I presumeMr. Rusinowitz still works with... 2 3 A. I don't know for sure. 3 4 Q. You don't know for sure? 4 5 MR. DWORKIN: He doesn't. 5 6 MR. ARCHIER: Okay. 6 7 Q. (BYMR. ARCHIER) Okay. Who currently is the 7 8 dispatch manager at Martinaire? 8 9 A. JenniferMoore. 9 10 Q. Jennifer Moore. Doyou know when Jennifer Moore 1 0 11 becamethe dispatch manager? 11 12 A. No,sir. 12 13 Q. Now, as dispatch manager, are you familiar with 13 14 Jennifer Moore's duties? 14 15 A. No, sir. 15 16 Q. Who was that familiarity? 16 1 7 A. The director ofoperations. 1 7 18 Q. And that wouldbeMr. Rusinowitz? 18 19 A. Yes, sir. 19 2 o Q. Okay. Do you know what a dispatch clerk does? 20 21 22 23 24 25

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. No,sir. Q. Okay. Is thatMr. Rusinowitz's son? A. Yes, sir. Q. And the signature here atthe bottom, wedon't knowwho that is, right? 38 21 22 23 24 25

A. No, sir. No, sir. 1 Q. And when you say "acopy ofthis certificate will 2 be maintained at Martinairecorporateheadquarters," is 3 this a binderfor this form? 4

A. I believe so. 5 Q. Okay. And this training that-- NOPC training, I 6 notice that itwas datedon 7/14/20I I. How often is 7 this NOPC training administered? 8

A. Normally every two years. 9 Q. Every two years. You said "normally." Whatdo 1 o you mean bynormally? 11

A. That'swhatthe FAA requires. 12 Q. Okay. Haveyoudone any morethan the two-year 13 period? 14

A. We do itevery 12 months. 15 Q. Every 12 months. 16

Why? 17 A. To make sure people know theirinformation 18 better; 19

Q. Take a look at page2. 2 o A. Yes, sir. Q. Do youknow Kathy Preston? A. Yes, sir. Q. Do you know what a LAN station manageris? A. Yes, sir. 21 22 23 24 25 Q. What ask that? A. TheLAN is abbreviation for Lansing. Q. Oh, okay. A. And station manageris a station manager. Q. Okay. Is Ms. Preston still at Martinaire? A. No,sir. Q. Do youknow whose signature that is atthe bottom?

A. It's mine. Q. Okay. Can youread that date? Is that July 13th
or I5th, 20II?

A. I don'tknow, sir. Q. You can't see it clearly? A. No, sir. Q. Okay. Take a look atpage 3, Mr. Bates, please. A. Yes, sir. Q. The printing here is faint. And I believe the first name is Todd Peffers?

A. Yes, sir. Q. He's a flight coordinator. Is he stiil employed with Martinaire?

A. No,sir. Q. Okays. Do youknow

-- there's another name here. I believe it's James Gardner?

A. I don'tknow, sir.

Q. You don't know, okay.

There's anothername here. Are you able to make that name out?

A. No,sir. Q. Okay. I think it's Jerrod Tuinstra. Does that
name ring a bell?

A. I don't remember. Q. Okay. What does the

-- I notice the position titles behind here are flight coordinators. What does a flight coordinator do for Martinaire? 40

A. They did the same procedure as a dispatcher would in

- as far as the NOPC's are concerned, recording what the pilot calls in.

Q. I'mjustcurious why are some called dispatchers and some called flight coordinators? MR. DWORKJN: Ifyou know. A. I don't know. Q. (BY MR. ARCHIER) You don't know? Okay. Now, I notice this is signed by Kathy Kristin. Do you know her?

A. I don't know Kathy Kristin. MR. ARCHIER: Mr. Dworkin, I'd like to take
a five-minute break. Is that good with you? MR. DWORKJN: Sure. (Break taken from 9:56a.m. to 10:03 a.m.) 

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# A~ATION ADMINISTRATION Deposition of: MICHAEL BATES v. 

### AINAIRE 5/16/2013 11 (Pages 41 to 44)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 41 43 MR. ARCIDER: Would you please mark the next 1 A. Yes, sir. document as MB-5. 2 Q. Areyou able to tell from thatUN identification (Exhibit No. MB-5 marked.) 3 number whatthe proper shippingname wouldbe? Q. (BY MR. ARCIDER) Okay. Mr. Bates, I'm showing 4 A. No,sir. you what is marked as MB-5 for identification. Take a 5 Q. Okay. And ifyou gavethatUN identification moment and look at it, please. 6 numberto a first responder withouttheproper shipping

A. (Witness complies.) Yes, sir. 7 name, that information is notgoingto be any assistance Q. Okay. Do you recognize it? The document, do you 8 to a first responder, would it? recognize it? 9 A. I don'tknow, sir.

A. I know whatitis, butI don't

... 10 Q. Youdon'tknow? Q. What is it? 11 A. No, sir. A. It's a NOPC. 12 Q. Okay. Take a look atthe second line where it Q. Okay. There's a signature atthe bottom under 13 says "proper shippingname." captain ordispatch signature. Do you recognize that 14 A. Yes, sir. signature? 15 Q. Do yourecognize that? Thatname?

A. No, sir. 16 A. The Boehringer? Q. Okay. Do you recognize any ofthe handwriting in 17 Q. Yes. this

-- on this document? 18 A. Yes. That's not a chemical.

A. No, sir. 19 Q. Youknowthat. How do youknowthat? Q. Ifyou look in the top line, there is a pilot 20 A. That's one ofthethings thatwe trained the
or-- there's a employee number. 21 pilot on to make sure he doesn't do it again.

A. Yes, sir. 22 Q. Whatis that name, bythe way? Q. That employee numberwouldbe the pilot's 23 A. It's a company in Germany. employee number, correct? 24 Q. Okay. Wouldthat name havebeen on a box or

A. Yes, sir. 25 something? 42 44 Q. And you wouldbe

-- you have information that you 1 A. Yes, sir. wouldbe able to identify who thatpilotis, correct? 2 Q. Okay.

A. With a list, yes. 3 MR. DWORKIN: Counsel, in looking at our Q. Yes. With your list, okay. 4 answer, we have not denied these allegations. This is

Now, take a look at the box that has the proper 5 admitted. You know, you can conduct the deposition the shipping name in it. 6 way you see fit, but these issues

-- these are not at

A. Yes, sir. 7 issue. Q. Doyou see any problem with that NOPC shipping 8 I mean we have admitted thatthe proper name? 9 shipping name was not included. We have in our answers

A. Yes, sir. 10 to paragraphs 3 and 4, we're willing to stipulate to Q. Whatproblem do you see with it? 11 thatMr. Bates will find the very, very same problems in A. Boehringeris not a chemical. 12 reviewingthe NOPC's that Cory Smith found yesterday. Q. Okay. I'm looking at the very first line. 13 MR. ARCHIER: Thankyou. I appreciate your A. Oh. 14 statement, Mr. Dworkin. I'm going to continue with my Q. Thevery first proper shipping name. 15 examination. A. I was looking at the other one. 16 MR. DWORKIN: Very well. Q. Okay. 17 Q. (BY MR. ARCHIER) Take a look at the third box. A. It's notthere. 18 Doyou recognize that name, Mr. Bates? Q. It's notthere? 19 A. No, sir. A. That's correct. 20 Q. Okay. That's notthe name ofhazardous material Q. There shouldbe a shipping name in that line, 21 thatyou're aware of, correct? correct? 22 A. No, sir.

A. Yes, sir. 23 Q. Okay. Taking a look atthis form, do you see any Q. Okay. I noticed in thatparticularboxthere is 24 otherproblems beside the improper shipping names?
a UN identification number? 25 A. No, sir. 

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# c FEDERAL

# A~ATION ADMINISTRATION v.

# ~INAIRE Deposition of: 

### MICHAEL BATES 5/16/2013 12 (Pages 45 to 48)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 45 .MR. ARCHIER: Will youplease mark this as 1 MB-6, please. 2 (Exhibit No. MB-6marked.) 3 Q. (BY .MR. ARCHIER) Mr. Bates, please take a look 4 atpage 1ofMB-6 andpage 2 ofMB-6, and when you're 5 finished, let me know. 6

A. (Witness complies.) Yes, sir. 7 Q. Okay. Mr. Bates, do you recognize-- take a look 8 atthe box where it says "propershipping name"? 9

A. Yes, sir. 10 Q. Doyou see any problems with that shippingname? 11 A. No, sir. 12 Q. Doyou see any problem with the UN identification 13 number? 14

A. Yes, sir. 15 Q. Whatproblems do you see with the UN 16 identification number? 17

A. It's not the rightnumber. 18 Q. Whatnumber should be there? 19 A. Onpage 2- it should be 1263. 20 Q. Doyourecognize thepage 2 document? 21 A. No,sir. 22 Q. Okay. Do you have any idea where thepage 2 2 3 document would have come from?

A. It says UPS on there.

Q. Sothis wouldbe the UPS information that gives you whatwas shipped on that particular day?

A. Yes, sir. Q. Okay. Gotit. 46

Do youknowwhy the UPS document is attached to this?

A. No, sir. Q. Okay. Thankyou. .MR. ARCHIER: Will youpleasemark this as 24 25

1 2 3 4 5 6 7 8 9 MB-7,please. 10 (ExhibitNo. MB-7 marked.) 11 Q. (BY .MR. ARCHIER) Have you finished looking at 12 it?

A. Yes, sir. Q. Okay. Take a look atthe-- the signature atthe bottom ofthepage. Doyou recognize that signature?

A. No, sir. Q. Do yourecognize any ofthe handwriting on this page?

A. No, sir. Q. Okay. Take a look atthe shipping name. Do you see anyproblems with that shippingname?

A. No, sir. Q. Okay. Do you see any problems with the UN identification number? 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Yes, sir. Q. What's theproblem with the UN identification number? 47

A. Thenumberis supposed to be 1987, butit says here 1087.

Q. Doyou see anyproblems with the information on thispage -- on theNOPC on this page?

A. No, sir. Q. Okay. MR. ARCHIER: Will you pleasemark this as MB-8, I believe. (ExhibitNo. MB-8 marked.) (Witnessreviews document.) Q. (BY MR. ARCHIER) Finished? A. Yes, sir. Q. Okay. Do yourecognizethat signaturein the captain's ordispatcher's signature?

A. No,sir. Q. Even though youdon'trecognizethat signaturein the captain's ordispatcher's spot, would that signature be a dispatcher?

A. I don't know, sir. Q. Don'tknow, okay.

Take a look at theproper shippingname. A. Yes, sir.

Q. Do you see anyproblems with the proper shipping
name information that's putthere eitherwith the proper shipping name, the UN ID?

A. No, sir. Q. Okay. Take a momentto look at the hazardous material shipping document that's attached and see if you see anyproblems with it.

A. It should have been verbatim. Q. It should have been

-- so you're saying the proper shipping name should have been "Petroleum Distillates, n.o.s., Super Agitene"?

A. Correct. Q. Okay. And that wasn'tput in the

-- the block, correct?

A. Correct. Q. And what should the UNidentification have been? A. 1268. Q. Thatwasn'tplaced there correctly, correct? A. It'shard to read. 48

Q. Okay. Nowtake a look atthe second block where it says "proper shipping name." You would agree that thatparticular shipping name should have been Petroleum Distillates, n.o.s., SuperAgitene?

A. Yes, sir. Q. Okay. Andthey did get the shipping name right, 

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# ( FEDERAL

# A~ATION ADMINISTRATION Deposition of: MICHAEL BATES v. 

### MA.INAIRE 5/16/2013 13 (Pages 49 to 52)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 correct? I mean the shipping

-- theUN IDnumber correct?

A. Yes. Q. Okay. I wantto ask you a question. The emergency contactnumberthat's here, where does dispatch getthatnumber from? Do they getthat from the pilot? Ifyoulook to the right on that document on the first page.

A. Itshould come from the pilot. Q. Correct. And the pilotwould getthatright off the hazmat shipment, correct?

A. Yes, sir. 49 51
1 Q. It's the sameexact information? 2 A. Yes, sir. 3 Q. Okay. Do yourecognize that signature at the 4 bottom? 5 A. No, sir. 6 Q. Do you recognize any ofthe other handwriting on 7 this document? 8 A. No, sir. 9 Q. Okay. Thank you. 1o MR. ARCHIER: Will youmark this as MB-10, 11 please. 12 (ExhibitNo. MB-10 marked.) Q. Okay. Thankyou. 13 Q. (BY MR. ARCHIER) Take a moment to look at page 1 MR. ARCIDER: Would you mark this MB-9, 14 and page 2, Mr. Bates, ofMB-10, and when you're please. 15 finished, look up at me, please, sir. (ExhibitNo. MB-9marked.) 16 A. (Witness complies.) Yes, sir. Q. (BYMR. ARCIDER) Take a moment, please, Mr. 17 Q. Okay. I notice the bottom there's a signature Bates, and look atMB-9, ExhibitMB-9. When you're finished, letme know. 1 8 that's T. Peffers? 19 A. Yes, sir. A. (Witness complies.) Yes, sir. 2 0 Q. Do youknow that person? Q. Take a look atthe shipping name in thatblock. 21 A. Yes, sir. Do you see anyproblemwith the shippingnamethere? 2 2 Q. Who is that?

A. Without the NOPC- the hazmatcoupon, I can't 2 3 tell. 24

Q. Okay. Andyou say withoutthe hazmat coupon. 2 5 50
Youmean the hazardous material shippingpaper? 1

A. The paper that should be- that comes on the 2 other box, I don't have that to be sure. 3

Q. Right. You wouldneed thehazmat shippingpaper 4 in orderto determine whether thatproper shipping name 5 is correct, right? 6

A. That or a book. 7 Q. And when you saythebook, whichbook are you 8 talking about? 9

A. The one than we use, like, to audit these forms. 10 That kind ofbook. 11

Q. Ail right. Sothattype ofbook, Ijustwantto 12 make sure we're talking about the rightkind ofbook or 13 the samekind ofbook. Are you talking about 49 CFR 14 100? 15

A. No, sir. 16 A. He was a flight follower in Michigan. Q. Butthey're no longer with the company, correct? A. No, sir.

Q. Okay. Take a look at theproper shipping name andthe UN identification andthe hazard class information. Doyou see any problems with that information, sir?

A. The hazard class is 5.1 on the form, and it should be 6.1 based on this form behind it.

Q. Okay. Andthe form you're looking at is the document from UPS, correct?

A. Right. Q. Okay. A. ButI normally don't see this. This is new. Q. Right. You don't normally see this UPS form? A. Correct. Q. What you normally would see wouldbethe hazardous material shipping document?

A. Yes, sir. 52

Q. Okay. What-- are youtalking about a different 17 kind ofbook? 18

A. Like a A.I.R. Shipper's regulations bookthat 19 shows me whatthat is.

Q. Okay. Doyou everreferto the hazardous 20 21 22 23 24 25 Q. Okay. Now, whenyou say younormally see that hazardous material shipping document, do the pilots send you that hazardous shipping document when they send you the

-- do they transmitthat hazardous material shipping documenttothe dispatch office? material regulations to getthe proper shipping?

A. Youcan. A. In the form ofa NOPC. Q. In the form ofa NOPC? A. Yes, sir. Q. Okay. Butyou don'tutilize that information? A. Ours is the same. Q. Butyou don't actually see the hazardous material 

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# (

'- FEDERAL

# A~ATION ADMINISTRATION Deposition of: MICHAEL BATES v. 

### MA.INAIRE 5/16/2013 14 

### (Pages 53 

### to 56)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 53 shipping document?

A. No, sir. Q. Okay. Thankyou. MR. ARCHIER: MarkthisMB-11, please. (ExhibitNo. MB-11 marked.) Q. (BY MR. ARCHIER) Mr. Bates, please take a look atMB-11, and when you're finished looking atit, raise yourhead, letmeknow when you're finished looking at it.A. (Witness complies.) Yes, sir.

Q. There's a signatureinthebottom, captain's or dispatch signature. Doyourecognize that signature?

A. No, sir. Q. Okay. Doyourecognize the hazardous material information that's in this box?

A. I can't really read the name. Q. Okay. You can'tread the name? A. Something "ink." Q. Okay. That's all you can make out? A. Yes, sir. Q. Okay. Withoutthe hazardous material coupon, you wouldn'tbe able to determine whetherthis information is correct, correct?

A. Right now I would need the shippingpaper or - the shippingpaperto make this right. 54

Q. To determine whetherthatname is right? A. Yes, sir. Q. Okay. Thankyou. MR. ARCHIER: MB-12, please. (Exhibit No. MB-12 marked.) Q. (BYMR. ARCHIER) Mr. Bates, please take a look atMB-12 for identification.

A. Yes, sir. Q. Doyourecognize it? A. It's a NOPC. Q. Okay. Doyourecognize the signature at the bottom?

A. No, sir. Q. Do yourecognize any ofthe otherhandwriting on this document?

A. No, sir. Q. Doyourecognize any -- take a look atthe hazardous material shipping block. Do you see any problem with thathazardous material shippingblock?

A. I would need more information. Q. You would needthe hazardous material shipping paper?

A. Itwould help, yes. Q. Inyour experience doing thisjob, haveyou ever-- are you aware ofanyhazardous material that's 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 written as "NOS"? A. It's part ofa complete name. Q. Okay. Would itbe fair to say with regard to the MB-12 docwnent, that the shipping name on MB-12 is incomplete?

A. Yes, sir. Q. Okay. MR. ARCHIER: Ms. Court Reporter, mark this
as MB-13. (Exhibit No. MB-13 marked.) 55

Q. (BY MR. ARCHIER) Take a moment to look atpage I and page 2 and page 3 ofthis document.

A. (Witness complies.) Yes, sir. Q. Take a look at the signature page, Mr. Bates. A. It appears to beblank. Q. Itshouldn'tbe blank, should it? A. No, sir. Q. Okay. Do you instruct your dispatchers to sign the NOPC forms?

A. Yes, sir. Q. Why do youtell them to sign the forms? A. So I know who tookdown the information. Q. Okay. Take a look at the first shipping name and UN identification nwnber andhazardclass. Do you see any problems with the hazardous material information in

there?

A. Proper shippingnameis not correct. Q. Okay. Do you see any problems with the second hazardous material shipping name?

A. It's the same as the first one. Q. Okay. And you're looking at the UPS form to make that determination, correct?

A. Yes, sir. Q. Okay. MR. ARCHIER: Will youmark this as MB-14, please. (Exhibit No. MB-14 marked.) 56

Q. (BY MR. ARCHIER) You recognize any problem with the hazardous material shipping name, Mr. Bates?

A. Yes, sir. Q. What problems do yourecognize? A. "Beckman Coulter" is not a chemical. Q. How do you know that? A. This is what we taught thepilot not to do again. That's partofourremedial fix was: Don't do that. Proper shippingnameis a chemical, not a person ora company.

Q. Okay. Do you recognize any problems with the secondhazardous material shipping name?

A. It's the same as the first. 

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# (. FEDERAL

# A~ATION ADMINISTRATION Deposition of: MICHAEL BATES v. 

### MA.INAIRE 5/16/2013 15 

### (Pages 57 

### to 60) 57 1 Q. Same, okay. 1 2 MR. DWORKIN: This is a case of20/20 2 3 hindsight. 3 4 MR. ARCHIER: Thankyou for your commentary, 4 5 Mr. Dworkin. 5 6 Q. (BY MR. ARCHIER) Now, let me askyou a question, 6 7 ·Mr. Bates. Thepilot madethis mistake, correct? 7 8 A. Yes, sir. 8 9 Q. How do you know thepilotmadethis mistake and 9 1 0 not the dispatch? 1 0 11 A. Because oftalking to the pilot. 11 12 Q. Okay. Anddoyourememberspecificallywhothis 12 13 pilotwas? 13 14 A. No, sir. 14 15 Q. Okay. What was the pilot'sreaction when you 15 16 told him that Beckman Coulter is not a hazardous 16 1 7 material? 1 7 18 A. I don't rememberwhat he said specifically. 18 19 Q. Okay. Didhe even know where to lookto getthe 19 2 0 hazardous material name? 2 0 21 A. He got it offthe coupon, offthe hazmat- the 21 22 23 24 25

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 shippingpapers. Q. The shipping papers? A. Yes, sir. Q. Does this particular pilot still work with

Martinaire?

A. I don'tknow, sir. 58

Q. Okay. Butyou don't see Beckman Coulteron any ofyourNOPC forms anymore, do you?

A. Not on ourforms, no, sir. Q. I mean youdon't see this type ofmistake again? A. No, sir. Q. Okay. Do yourecognize who the dispatcher's signaturehere? 22 23 24 25

1 2 3 4 5 6 7 8 9 A. No, sir. 1 o Q. Do you recognize any ofthe otherhandwriting 11 here? 12

A. No, sir. 13 MR. ARCHIER: Wiii youmarkthis as MB-15, 14 please. 15 (ExhibitNo. MB-15 marked.) 16 Q. (BY MR. ARCHIER) Take a moment and look at 17 MB- I5, please. 18

A. (Witness complies.) Yes, sir. 19 Q. Take a look at the hazardousmaterial shipping 2 0 block. Do you see anyproblems with the hazardous 21 material shippingblock? 2 2

A. Theword

-- the name appears to be missing a 2 3 letter ortwo. 2 4

Q. Okay. Sothe same is notproperly written onthe 2 5 59 UPS document

-- it's nottranscribed the sameas theUPS document?

A. Correct. Q. Okay. You see any other issues? A. Ifthat's whatthatis, then the numberdoesn't match.

Q. So you've got an improper UN ID number, and you have a wrong shippingname; is that correct?

A. Itappears to be, sir. Q. Do yourecognize the handwriting at the bottom? A. No, sir. Q. Do yourecognize any otherwriting on this page? A. No, sir. Q. Okay. Thankyou. MR. ARCHIER: Will youmark this as MB-16. (ExhibitNo. MB-16marked.) Q. (BYMR. ARCHIER) Take a moment, Mr. Bates, please, and look atMB-16.

A. (Witness complies.) Yes, sir. Q. Do yourecognize the signature in the captain's
or dispatch signature?

A. No,sir. Q. Okay. Doyou recognize any otherhandwriting on thepage?

A. No, sir.

Q. Do you recognize thehazardous material that's written in the hazardousmaterial block?

A. No, sir. Q. Okay. And why is that? A. It's missing letters again. Q. Okay. Andyou can tell it's missing letters, correct?

A. I don't know ofa chemical called-- Q. C-0-R-R? A. I don't. Q. Okay. Right. Thankyou.

Now, Mr. Bates, I thinkyou saidyou started with Martinaire in 1999, right?

A. Yes, sir. 60

Q. Okay. Doyou-- are you familiar with any ofthe otherhazardousmaterial NOPC shipping violations that thecompany hashad?

A. I'mfamiliarbutnot expertknowledge, no detailed knowledge.

Q. What's your familiarity? A. I don't know which oneyou're referring to. Q. Okay. Howmany are you familiar with? A. One. Q. One? A. Yes, sir. 

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## ( FEDERAL

# A~ATION ADMINISTRATION v.

# MA~INAIRE Deposition of: 

### MICHAEL BATES 5/16/2013 16 (Pages 61 to 64)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 61 63 Q. Tell meabout the one you're familiar with. 1 A. Mr. Rusinowitz. A. Itwas where a NOPC was transmitted, the 2 Q. Okay. information was transmitted, butfor some reason the 3 A. Myself, the directorofmaintenance. Those are pilot didn't have one on his person when the inspector 4 the seniormanagers, thepeople that run the day-to-day asked him to see his paperwork. Ithad been called in, 5 operation. buthe didn't have itin his possession. 6 Q. Okay. Otherthan Mr. Rusinowitz, have you talked

Q. Okay. Howcould thathappen? 7 to any other seniormanagement about the NOPC problems? A. He eitherlost it or didn'thave itto begin 8 A. Can you rephrasethe question? As to whatwe with. 9 talked aboutorjustin general?

Q. Okay. So the inspector was talking directly to 10 Q. JusttheNOPC violations. the pilothimself? 11 MR. DWORKIN: Youmean these NOPC

A. Yes, sir. 12 violations? Q. Okay. Butyou don'trequire yourpilots to 13 MR. ARCHIER: Yes, these NOPC violations. maintain their NOPC's, right? 14 A. I talked with Mr. Rusinowitz aboutit and with

A. Correct. 15 Mr. Smith. Q. And was there a violation written for that case? 16 Q. (BY MR. ARCHIER) And Mr. Smith, you mean the A. I don'tknow. 17 president? Q. You don't know? 18 A. No, no, no. Cory Smith, my assistant. A. I don't know. 19 Q. Have you talkedto the president about this? Q. And you're not aware ofany otherviolations at 20 A. No details. I mean he asked, like when an all? 21 inspection was over, how did it go. Thatkind of

A. Nothing regardingNOPC's, sir. 22 discussion but nothing specific. Q. Okay. Aside from NOPC's, are you aware ofany 23 Q. And when he asked, what did you say afterthe other hazardous material violation cases? 24 inspection? What did you say to him?

A. No, sir. 25 A. I told him I don't know what's going to happen. 62 64 Q. Are you aware ofany administrative actions 1 Q. Okay. Anything else? against Martinaire for hazardous material violations? 2 A. No,sir.

A. No,sir. 3 Q. Okay. I want to focus now, Mr. Bates, on the Q. Okay. Are you a partofseniormanagement? 4 dispatch office. Tell me howthe dispatch office A. Yes, sir. 5 operates. Q. Okay. And what is meantby seniormanagement at 6 MR. DWOR.KJN: Ifyouknow. Martinaire? 7 A. I know some things.

A. We don't really have it defined. 8 Q. (BY MR. ARCHIER) Tell me what you know. Q. Howmanypeople wouldyou say are in the senior 9 A. They monitor ourflights that arein the air. management group? 10 They make surethe pilots arewherethey're supposed to

A. The people named in FAR-119. 11 be one hour priorto departure. Ifa planedoesn't show Q. Say again? 12 up on time, they letpeople know. It's not really A. The people named in FAR-119, the 13 search and rescue, butlook for it. regulation federal aviation, managementpersonnel. 14 They reportNOPC's. They takethe calls from the

Q. And who wouldthatbe specifically? 15 pilots ifthere's illness. They areinformed by A. Thepresident. 16 maintenanceifthe airplane is up ordown as far as Q. Who is that? 17 availability, andthey relay that information to pilots. A. Mr. Mitch Acker. 18 They monitorthe weather and assist the pilots on Q. How do you spell that lastname? 19 decision-making. A. I believe it's A-C-K-E-R. 20 Q. Do the people in dispatchreport to you? Q. And he's the president? 21 A. No,sir. A. Yes, sir. 22 Q. And Ibelieve you told me the name they report Q. Where is he located at? 23 to, Jennifer Moore, right? A. In Addison. 24 A. Atthis time, yes. Q. Who else wouldthat include? 25 Q. Okay. So your contact with dispatch would only 

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# c FEDERAL

# A~ATION ADMINISTRATION v.

# MA~INAIRE Deposition of: MICHAEL BATES 5/16/2013

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 

### 17 (Pages 65 to 68) 65 67 betherecording ofthe NOPC fonns, correct? 1 There may be otherbranches thatI don'tdeal with,but

A. No. There's more to it than that That'sjust 2 that's my family tree, the one I use. one thing we do together. We work together all day 3 Q. Okay. So when you said there may be otherfamily long. 4 trees, meaning are you a subsidiary?

Q. Okay. Justtell me howyou-- your other 5 A. No,sir. ' interfaces, howyou interface with dispatch. 6 Q. Are you theparent company?

A. Ifa pilot's late for work, theylet me know. 7 A. No,sir. And then I call the pilot and ask what's going on, that 8 Q. You're not the parent company? kind ofinteraction. 9 A. The family treethat I describe is in my General

Q. So anything thatrevolves around a pilot, 10 Operations Manual,justoperations control from topto communications with a pilot, you would getinvolved 11 bottom, how it's-- and that's all I know about. I with? 12 don'tknow ofany otherstuff.

A. Yes, sir. 13 Q. Okay. Who's the chainnan ofthe board? Q. Okay. Anything that involves whether a plane 14 A. I believe it'sJay Paynter. gets from point A topointB on a timely fashion, you 15 Q. Do youknow how many people are on the board? would get involved with? 16 A. No,sir.

A. Yes,sir. 17 (ExhibitMB-17 marked.) Q. Okay. Anytraining, hazmattraining with 18 Q. Take a look at the next document I have in front dispatch youwould get involved with hazmat training? 19 ofyou.

A. Yes. 20 A. Yes, sir. MR. ARCHIER: I need to take a five-minute 21 Q. Take a look at page 1and 2. break. 22 A. Yes, sir. (Break taken from 10:43 a.m. to 10:54 a.m.) 23 Q. What is this document? Q. (BYMR. ARCHIER) Mr. Bates, are you familiar 24 A. Itappears to be e-mail from me to the pilots. with the corporate structure ofMartinaire? 25 Q. Okay. And what was thepurpose ofthis e-mail? 66 68 MR. DWORKIN: Can you describe what you mean 1 A. To- based on the consent ofit, to reiterate by corporate structure? 2 the importance ofaccurate

- accuracy and proper MR. ARCHIER: Well, Iwill do that. 3 completion ofNOPC forms. Q. (BY MR. ARCHIER) But do you understand my 4 Q. Okay. And I noticed thatyou CC'ed Preston? question? 5 A. Yes, sir.

A. Like a family tree? 6 Q. Who wouldthatbe? Preston who? Q. Yes. Yeah, Imean the family tree, the 7 A. It's the same, it's Kathy Preston. corporate? 8 Q. Oh, it's Kathy Preston?

A. Yes, sir. 9 A. Yes. Q. Tell me the family tree. 10 Q. And she would be

-- atthattime, shewould have A. Well, it's the president- well, actually, the 11 been the head ofdispatch? chairman ofthe board. 12 A. No, sir.

Q. Chairman ofthe board? 13 Q. Who would shehave been? A. Yes. And then it's president. 14 A. The station manager in Lansing. Q. President? 15 Q. Who is no longerthere, right? A. Vice president. 16 A. Correct. Q. VP? 17 Q. And ofcourse Mr. Rusinowitz? A. And there's -it'slike executive vice 18 A. Yes, sir. president, chiefoperatingofficer is the same thing. 19 Q. Okay. And I notice you writeit to all pilots And director ofoperations under that same person. Then 20 and flight followers. I know who you'retalking about there's myself, the director ofmaintenance, and the 21 with regard to thepilots. Who are you talking about assistant chiefpilot. 22 with regardto flight followers?

Q. You said yourself? 23 A. The dispatchers. A. The director ofmaintenance and the assistant 24 Q. Thedispatchers? chiefpilot. And that's my family tree, so to speak. 25 A. Yes, sir. 

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### FEDERAL A

.. TION ADMINISTRATION Deposition of: MICHAEL BATES v. 

### 5/16/2013 18 (Pages 69 to 72)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 69 71 Q. Oh,okay. That's who youmean by

-- anybody 1 CHANGES AND SIGNATURE else? 2 WITNESS NAME: MICHAEL BATES DATE:

A. No. 3 PAGE LINE CHANGE REASON Q. Okay. 4 A. Those people. 5 Q. All right. I notice that youmake it clearthat 6 you don't want the pilots tobe rushed by UPS orDHL? 7

A. Yes, sir. 8 Q. Have youknown that to bethe case? 9 A. No,sir. 10 Q. No, sir? 11 A. No,sir. 12 Q. Okay. I notice thatthe last line you said, "A 13
more detailed e-mail with complete instructions will be 14 sent out within the next few weeks [sic]." Do youknow 15 whatthat e-mail entailed? 16 MR. DWORKIN: Fewdays. 17 Q. (BYMR. ARCHIER) I'm sorry. Within the next few 18 days. Doyouknow whatthat e-mail entailed? 19

A. It's been a while, so I don'tknow for sure which 20
one itmay have been. 21

Q. Would it have possibly reiterated the information 22 in this e-mail? 23

A. I would imagine it would have been more complete 24 than this e-mail. 25 70 72 Q. When you say more complete, what type of 1 I, MICHAEL BATES, have read the foregoing information would it havehad in it? 2 deposition and hereby affix my signature that same is

A. I'm speculatingthat I would have sent them 3 true and correct, except as noted above. examples on how to fill itproperly, like an attachment 4 ofsome sort. But I don't know wherethat was orwhere 5 itis at this time. 6 MICHAEL BATES

Q. Are you satisfied with the corrective action that 7 THE STATE OF ) Martinairehas done? 8 COUNTY OF )

A. Yes, sir. 9 Q. Okay. Why do you say that? 10 Before me, , on this A. Being firsthand knowledge ofthe audit, I can see 11 day personally appeared MICHAEL BATES, known to me (or that there's no more mistakes. 12 proved to meunder oath orthrough

Q. Okay. 13 ) (description ofidentity MR. ARCHIER: I don't have any other 14 card orother document) tobethe person whose name is 15 subscribed to the foregoing instrument and acknowledged questions. Mr. Dworkin, I don't have any other 16 to me that they executedthe same for the purposes and questions. 17 consideration therein expressed. MR. DWORKIN: Okay. 18 Given under my hand and seal ofoffice this (Proceeding concluded at 10:59 a.m.) 19 day of '2013. 20 21 22 NOTARY PUBLIC IN AND FOR 23 THE STATE OF COMMISSION EXPIRES: 24 25 

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# c.

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### v. FEDERAL

# A~TION ADMINISTRATION Deposition of: MICHAEL BATES 5/16/2013 19 (Pages 73 to 75)

1
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7 U.S DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION OFFICE HEARINGS WASHINGTON, DC
In the Matter of: ) FAA DOCKET No. FAA-2013-0040
Martinaire Aviation LLC) FAA CASE No. 201 ISW700189 (Civil Penally Action) Respondent ) REPORTER'S CERTIFICATION DEPOSITION OF MICHAEL BATES MAYI6,2013 I, Kristin McDowell, Certified Shorthand Reporter in and for the State ofTexas, hereby certifY pursuant to the Federal Rules ofCivil Procedure to the following:

That this deposition transcript is a true record of the testimony givenby MICHAEL BATES, the witness named herein, on May I6th 2013 after said witness was duly sworn/affirmedby me.

Thatthe deposition transcript was submitted on the**--~day** of 2013 to Mr. Michael L. 73

B 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Dworkin, MICHAEL L. DWORKlN & ASSOCIATES, 465 California Street, Suite 2I0, San Francisco, California 94104 for examination, signature and return to meby

______ _,2013.

74

1 That the deposition transcript was returned to U.S. 2 Legal Support on , 2013, was 3 properly executedby the witness to the deposition 4 officer, andthe attachedchange/correct sheet contains 5 any changes, and the reasons therefor, madeby the 6 witness. 7 B Thatthe original deposition transcript, or a copy 9 thereof, together with copies ofall exhibits, was 10 delivered on the

__day of , 2013 to Mr. 11 JamesArchier for the safekeeping anduse at trial. 12 That the amount oftime usedby each party at the 13 deposition is as follows: 14 MR. JAMESARCHIER.

........ 01 HOURS:40 MINUTES 15 MR. MICHAEL DWORKIN

....... 00 HOURS:OO MINUTES 16 17 Thatpursuantto information given to the deposition 18 officerat the time said testimony was taken, the 19 following includes counsel for all parties ofrecord: 20 MR. JAMES ARCHIER: Attorney for FAA; 21 MR. MICHAEL DWORKIN: Attorney for Martinaire. 22 23 24 25 1 2 3 4 5 6 7 8 9 10 11
12
13
14
15 16 17 18
19 20 21 22 23 24 25 That a copyofthis certification was served on all parties shownherein.

Certifiedtobyme this

__day of , 2013.

KRISTIN MCDOWELL Texas CSRNo. 8218 Expiration Date: 12/31/14 U.S. Legal Support, Inc. Firm # 343 5910N. Central Expressway, Suite 100 Dallas, Texas 75206 214-741-6001 214-741-6824 (FAX)

Taxable cost $ Job#2-143524

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a.m 1:20,20 40:25,25 65:23,23 70:18 B 

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72:2 73:7,13,17 74:1,3,8,13,17 Dworkin2:18,18 4:17,20 5:3,6,8 17:14,16 describe6:12 16:12 66:1 67:9 18:2 25:13 33:17 37:5 40:16,22,24 44:3,14 described27:9 44:16 57:2,5 63:11 64:6 66:169:17 70:15 description3:8 72:13 70:17 73:19,19 74:15,21 description's 15:24 detail18:11 E detailed60:19 69:14 E2:1,1 3:1,7 4:1,1 details 63:20 earlier27:10 determination 56:7 earn 18:8 determine21:10 22:7 50:5 53:22 54:1 easier 16:17 23:23,23 devoid 33:14 educational!0:7 DHL26:23,24,25 69:7 eight 8:14 Dietzenbach 10:16 11:1 either48:2 61:8 differ 13:3 emergency49:5 difference20:14 28:14 emotional7:21 8:2 different 12:24 50:17 emphasis23:24 difficult 8:8 employed 5:11,15 11:12 35:17 36:3,9 39:20 DIRECT3:4 employee41 :21,23,24 directly61 : 1 0 employees9:17 26:17 27:3 34:25 director 15:25 16:1 37:17 63:3 66:20,21,24 employment36:5 discrepancies 34:17 engines 13:5 discussed29:19 32:18 ensure32:3 discussion 63:22 entail19:4 dispatch 15:6 20:8,22 21:10 29:21 30:8,15,17 entailed 69:16,19 30:21,24 31:3,21 32:25 36:11 37:8,11,13,20 entails 15:12 41:14 49:6 52:21 53:12 57:10 59:21 64:4,4 ergonomics27:18 64:20,25 65:6,19 68:11 essential27:19 dispatcher36:15 40:11 47:21 Everybody 19:22 dispatchers29:25 30:1 ,2,4, 12 31:2 40:14 exact51:1

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### U.S. LEGAL SUPPORT

- DALLAS, TEXAS 214-741-6001 7

## (



# (

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### FEDEtlt AVIATION

# ADMINISTRATION~ MARTINAIRE Deposition of: MICHAEL BATES 5/16/2013

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51:13 55:11 58:17 59:17


### U.S. LEGAL SUPPORT

- DALLAS, TEXAS 214-741-6001 8

## (



# ( FEDEtlt AVIATION

# ADMINISTRATION~ MARTINAIRE Deposition of: MICHAEL BATES 5/16/2013

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### U.S. LEGAL SUPPORT

- DALLAS, TEXAS 214-741-6001 9

# (

( \.

# FEDE~L AVIATION

# ADMINISTRATION~ MARTINAIRE Deposition of: MICHAEL BATES 5/16/2013



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### U.S. LEGAL SUPPORT

- DALLAS, TEXAS 214-741-6001

### (



# ( FEDEtll AVIATION

# ADMINISTRATION~ MARTINAIRE Deposition of: MICHAEL BATES 5/16/2013

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### U.S. LEGAL SUPPORT

- DALLAS, TEXAS 214-741-6001 11

### ( FEDEtlt AVIATION

# ADMINISTRATION~ MARTINAIRE Deposition of: MICHAEL BATES S/16/2013

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### U.S. LEGAL SUPPORT

- DALLAS, TEXAS 214-741-6001

## (



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### FEDEttL AVIATION

# ADMINISTRATION~ MARTINAIRE Deposition of: MICHAEL BATES 5/16/2013

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### U.S. LEGAL SUPPORT

- DALLAS, TEXAS 214-741-6001

### {

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# ( FEDEtll AVIATION

# ADMINISTRATION~ MARTINAIRE Deposition of: MICHAEL BATES 5/16/2013

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### FEDEtlt AVIATION

# ADMINISTRATION~ MARTINAIRE Deposition of: MICHAEL BATES S/16/2013



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# ADMINISTRATION~ MARTINAIRE Deposition of: MICHAEL BATES 5/16/2013

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# e e FEDERAL AVIATION ADMINISTRATION 

## v. MARTINAIRE Deposition of: MICHAEL BATES 5/16/2013

1 CHANGES AND SIGNATURE
2 WITNESS NAME: MICHAEL BATES DATE:

# J2/L~4M}3 3 PAGE LINE CHANGE REASON 

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### U.S. LEGAL SUPPORT

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# e e FEDERAL AVIATION ADMINISTRATION v. Deposition of: MICHAEL BATES MARTINAIRE 5/16/2013

1 I, MICHAEL BATES, have read the foregoing 2 deposition and hereby affix my signature that same is 3 true and correct, except as noted above. 4 5

6 7 8 9 10

# --~----------------- MICHAEL BATES THE STATE OF

## -~~--) COUNTY OF

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Before me,

# ---~---~J-~~------' on this 11 day personally appeared MICHAEL BATES, known to me (or 12 proved to me under oath or through 13

## -~~--Jp~L~-ll~) (description of identity 14 card or other document) to be the person whose name is 15 subscribed to the foregoing instrument and acknowledged 16 to me that they executed the same for the purposes and 17 consideration therein expressed. 18 Given under my hand and seal of office this 19

# --~-1~ day of

# ---~~-------------' 2013. 20 21 22

23

24 25

# ---~-~------------ NOTARY PUBLIC IN AND FOR

# '~-~-~T~~~~o~~~~~~**\~,~**

## 07**27 2013**  THE STATE OF

__

### :f"~~----------- .' COMMISSION EXPIRES: 

# _:1_J&:._'l/.J.3

____

U.S. LEGAL SUPPORT

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# e e FEDERAL AVIATION ADMINISTRATION 

## v. Deposition of: MICHAEL BATES MARTINAIRE 5/16/2013

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8 9 U.S DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION OFFICE HEARINGS WASHINGTON, DC

In the Matter of: FAA DOCKET No. FAA-2013-0040

Martinaire Aviation LLC ) FAA CASE No. 2011SW700189

Respondent (Civil Penalty Action)

REPORTER'S CERTIFICATION DEPOSITION OF MICHAEL BATES MAY 16, 2013 I, Kristin McDowell, Certified Shorthand Reporter 10 in and for the State of Texas, hereby certify pursuant 11 to the Federal Rules of Civil Procedure to the 

### 12 following: 

### 13 That this deposition transcript is a true record of 

### 14 the testimony given by MICHAEL BATES, the witness named 15 

### 16 17 18 herein, on May 16th 2013 after said witness was duly sworn/affirmed by me. That the deposition transcript was submitted on the

# _l~fb 

# ___day of

# )~£L~---- 2013 to Mr. Michael L. 19 Dworkin, MICHAEL L. DWORKIN & ASSOCIATES, 465 California 

### 20 Street, Suite 210, San Francisco, California 94104 for 

### 21 22 

### 23 24 25 examination, signature and return to me by

# :ruljL----L~-------' 2013.



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# • e FEDERAL Deposition of: AVIATION ADMINISTRATION 

## v. MICHAEL BATES MARTINAIRE 5/16/2013

1 That the deposition transcript was returned to 

### u.s. 2 Legal Support on --------------------' 2013, was 3 properly executed by the witness to the deposition 4 officer, and the attached change/correct sheet contains 5 any changes, and the reasons therefor, made by the 6 witness. 

### 7 8 That the original deposition transcript, or a copy 9 thereof, together with copies of all exhibits, was 10 delivered on the

------ day of ------------' 2013 to Mr. 11 James Archier for the safekeeping and use at trial. 12 That the amount of time used by each party at the 13 deposition is as follows: 14 MR. JAMES ARCHIER

........ . 01 HOURS:40 MINUTES 15 MR. MICHAEL DWORKIN

...... . 00 HOURS:OO MINUTES 16 17 That pursuant to information given to the deposition 18 officer at the time said testimony was taken, the 19 following includes counsel for all parties of record: 

### 20

21 22 23 24 

### 25 MR. JAMES ARCHIER: Attorney for FAA; MR. MICHAEL DWORKIN: Attorney for Martinaire.



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# • e FEDERAL Deposition of: AVIATION ADMINISTRATION 

## v. MICHAEL BATES MARTINAIRE 5/16/2013

That a copy of this certification was served on all parties shown herein. Certified to by me this

# g2t~ day of

# :1_~11~--' 2013.

# -~9&~-------,.,.., KRISTIN MCDOWELL Texas CSR No. 8218 Expiration Date: 12/31/14 U.S. Legal Support, Inc. Firm # 343 5910 N. Central Expressway, Suite 100 Dallas, Texas 75206 214-741-6001 2 14- 7 4 1 - 6 8 2 4 (FAX )

Taxable cost $

___________ 75

19 Job#2-143524 20 21 22 23 24 25



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## EXHIBITE Deposition ofAlan Rusinowitz

FAA Case No. 2011SW700189 I DMS No. FAA-2013-0040
MARTINAIRE AVIATION, LLC'S RESPONSE AND OBJECTIONS TO COMPLAINANT'S MOTION FORDECISION

## (

j.-· ·-i' 

# '·--- FEDERAL

# A~TION ADMINISTRATION Deposition of: ALAN RUSINOWITZ V. 5/16/2013

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23 24 25 U.S DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION OFFICE HEARINGS WASHINGTON, DC In the Matter of: ) FAA DOCKET No. FAA-2013-0040 Martinaire Aviation LLC ) FAA CASE No. 2011SW700189 ) (Civil Penalty Action) Respondent

ORAL DEPOSITION OF ALAN RUSINOWITZ
MAY 16, 2013 

# *.""*** * * ** * ** * ** * * * ** ****** *** * ***** *** * * ********   ** *

ORAL DEPOSITION OF ALAN RUSINOWITZ, produced as a witness at the instance of the FAA, and duly sworn, was taken in the above-styled and numbered cause on May 16, 2013, from 9:04a.m. to 10:59 a.m., before Kristin McDowelL CSR in and for the State of Texas, reported by machine shorthand, at the offices of FEDERAL AVIATION ADMINISTRATION, 2601 Meacham Boulevard, Fort Worth, Texas 76137 pursuant to the Federal Rules of Civil Procedure.

APPEARANCES Mr. James Archier FEDERAL A VIATJON ADMINISTRATJON Office ofRegional Counsel Southwest Region 260I MeachamBoulevard FortWorth, Texas 76137-4298 Phone: (817) 222-5099 Fax: (817) 222-5945 JAMES.ARCHIER@FAA.GOV COUNSEL FORFEDERAL AVIATION ADMINISTRATJON

-andMs. Becky Holms FEDERALAVIATION ADMINJSTRATION Office ofRegional Counsel Southwest Region 2601 Meacham Boulevard FortWorth, Texas 76137-4298 Phone: (817) 222-5099 Fax: (817) 222-5945 COUNSELFORFEDERAL AVIATION ADMINISTRATION

Mr. Michael L. Dworkin MICHAELL. DWORKIN &ASSOCIATES 465 California Street Suite 210 San Francisco, California 94104 Phone: (415) 421-2500 Fax: (415) 421-2560 E-MAIL: LAW@A VIALEX.COM COUNSEL FORMARTINAIRE

Also Present: Mr. Alan Rusinowitz 1

2 

### 1 (Pages 1 to 4)
3
1 INDEX PAGE APPEARANCES

............... . 2 WITNESS ALAN RUSINOWITZ 2 3 4 5 6 7 8 9 DIRECT EXAMINATIONBY MR. ARCHIER.

. . 4

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Signature and Corrections

. . . . . . . . 48 Reporter's Certificate.

. . . . . . . . . 50

EXHIBITS NO. Description PAGE AR-1 Notice.

. . . . . . . . . . . . . . . . . 04 AR-2 Martinaire's letterofresponse . . . . . 30

1 PROCEEDINGS 2 (Oath administered.) 3 ALAN RUSINOWITZ, 4 having been first duly sworn, testifies as follows: 5 EXAMINATION 6 BY MR. ARCHJER: 7 Q. Good afternoon, Mr. Rusinowitz. Myname is James 8 Archier, andI'll betaking yourdeposition today. And 9 you know ourotherattorney, Becky Holms. 10 A. Yes. 11 Q. Okay. 12 MR. ARCHIER: Ms. Court Reporter, would you 13 please markthis as AR-1 for identification. 14 (ExhibitNo. AR-1 marked.) 4

15 Q. (BY MR. ARCHIER) Mr. Rusinowitz, have you seen 16 this document before? 17 A. Yes, I have. 18 Q. Okay. All right. And

-- thank you. As I 19 indicated in the notice, in document AR-1, this a notice 2 0 ofdeposition, and this particulardeposition is taken 21 pursuanttonotice and in accordance with the Federal 2 2 Rules ofCivil Procedure. 2 3 Mr. Rusinowitz, I'm going to askyou a series of 2 4 questions, sir, andplease answer out loud. No nods or 25 shakes ofthe head. Do youunderstand? 

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### FEDERAL A.TION ADMINISTRATION v. 

### MAerNAIRE Deposition of: ALAN RUSINOWITZ 5/16/2013

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 

### 2 (Pages 5 to 8) 

## sl 7 A. Yes. 1 A. Yes. Q. Okay. Ifl ask you a question youdon't 2 Q. Okay. Where isyourBAfrom? understand, ask me to repeat it and I'll rephrase it, 3 A. Dowling College. okay? 4 Q. And is that D-0

--

A. Yes. 5 A. D-0-W-L-I-N-G. Q. Ifyouneed a break, letme know and we'll take a 6 Q. Where is that located? break. 7 A. Oakdale, LongIsland.

A. Yes. 8 Q. When did yougraduate from there? Q. Okay. Is there anything about your physical, 9 A. 1984. emotional, ormental condition that will not allow you 10 Q. What did youmajorin? to understand my questions today? 11 A. Aeronautics.

A. No. 12 Q. And do you have any post-graduate education? Q. Ifthat changes, will youpromise to tell me? 13 A. No, sir. A. Yes. 14 Q. Okay. And did you start work after you Q. Is there anything about your physical, emotional, 15 graduated

-- orwhatyear did you graduate?
ormental condition that will not allow you to give full 16 A. 1984. and complete answers to my questions? 17 Q. Did you start work right after you graduated?

A. No. 18 A. I'veworked since I'm 16years old. Q. Ifthat changes, will youpromise to tell me? 19 Q. Okay. What was your firstjob afteryou A. Yes. 20 graduated in 1984? Q. Are youunder any medications that will make it 21 A. Flightinstructing. difficult for youto understandmy questions? 22 Q. Okay. And where was that at?

A. No. 23 A. Nassau Flyers, Republic Airport, LongIsland. Q. Areyou sick today? 24 Q. So you're a pilot? A. No. 25 A. Yes, sir. 6 8 Q. Okay. Are you are currently under a doctor's 1 Q. And youhave a pilot's license? care? 2 A. Yes.

A. No. 3 Q. How long did you do flight instruction? Q. Have youhad any alcohol within the last eight 4 A. I think about 1986. hours? 5 Q. Okay. And was yourjobjustto instructthe

A. No. 6 pilots on howto fly an airplane? Q. Okay. Any otherreason that youcan think of 7 A. Teach people how to fly airplanes and fly that youwon'tbe able to answer fully andtruthfully my 8 charter. questions? 9 Q. And fly charter?

A. No. 10 A. Yes, sir. Q. Okay. Where do you live at, Mr. Rusinowitz? 11 Q. So did youdo any flying, yourself, atthat time? A. Plano,Texas. 12 A. Yes. Q. Okay. And are youmarried or single? 13 Q. What type offlying did you do? I mean did you A. Married. 14 fly on behalfofthe company, orwere youjust-- I Q. And howmany children do you have? 15 guess youhad to fly

-- A. Two. 16 A. Personal and professional. Q. Okay. How long haveyoubeen an employee with 17 Q. Okay. After 1986, what company didyou...? Martinaire? 18 A. It's a long time ago, so within a year, my

A. Twelve and a halfyears. 19 progression was -- I wentfrom business

- I wentto Q. Okay. And so you would have started as an 20 Business Express Airlines. employee with Martinaire in whatyear? 21 Q. Business Express Airlines. Where are they

A. October 2000. 22 located? Q. Okay. Andpriorto your employment-- well, tell 23 A. They

-- atthattime they were located in me a littlebit about your educational background. Do 24 Bridgeport, Connecticut. youhave a BA? 25 Q. And what was your title with them? 

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be0f5d55-79bc-4c50-9e71-f5542e8eaa2f

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# ., FEDERAL A""'e'!ATION ADMINISTRATION v. 

## '&\

## ~INAIRE Deposition of: 

### ALAN RUSINOWITZ 5/16/2013 

### 3 (Pages 9 to 12)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 9 11 A. Firstofficer. 1 hired by DonaldTrump. Q. And what were your duties and responsibilities? 2 Q. The last flight engineer? A. I was second in command, to aid the captain,fly 3 A•. Yeah. We were hired as second officers. And the airplane, dowhathe did, shutup, sit down, don't 4 then the progression was --you know, we're a flight ask too many questions. The good old days. 5 engineer andthen you would move up to captain or

Q. Youmake it sound so simple. How long were you 6 co-pilot orfirst officer, thencaptain. So you always there? 7 started in the side saddle seatonthe 727 as the flight

A. About a year. 8 engineer. Q. Okay. And so you would have been there from 9 Q. They'renotin existence today, are they? 1986, roughly, to I980

-- 10 A. LikeI said, I was the lastpilotever hired by

A. '7, '8, somewhere in there. 11 Donald Trump. Q. All right. What did you do next? 12 Q. So how long didthat last? A. I wentto NewYorkAir. 13 A. Two years. Q. What was your title there? 14 Q. Okay. So that would havebrought us up to about A. Firstofficer on the DC-9. 15 what year, then? Q. DC-9 is a big aircraft. 16 A. 1992. A. Um-hmm, yes, sir. Ajet. 17 Q. 1992? Okay. So from 1992 to 2000, what did you Q. So whatroutes did you fly there? 18 do in thatperiod? A. New York, Boston, Florida, Cleveland, whatever 19 A. You ready? the schedulewas. They were a scheduled airline. 20 Q. Yeah.

Q. How long did you fly as a first officer there? !21 A. 1992 to '93, I worked for FlightSafety. A. Approximately one year. 22 Q. Okay. FlightSafety? Q. Okay. What did you do next? 23 A. '93 to '94, Business Express Airlines again. A. Backto instructing at Nassau Flyers. 24 Q. Business Express again? Q. Forhow long? 25 A. '94 to '95, backto FlightSafety. 10 12 A. Approximately a year. 1 Q. '94 to '95, backto FlightSafety. Q. Okay. What did you do next? 2 A. '95 to 2000, back to Business Express. A. Wentto a company called East Hampton Air. 3 Q. '95 to 2000

-- Q. What did you do there? 4 A. Um-hmm (affirmative). A. Flew as a captain. 5 Q. --backto Business Express? Q. And that's East Hampton? 6 A. Right. Then in 2000 sperit nine months at SIMCOM. A. EastHampton, Long Island to LaGuardia. 7 Q. What's that? Q. So you were the captain? 8 A. SIMCOM, S-1-M, then capital C-0-M. A. Yes, sir;. 9 Q. Okay. What kind ofcompany is that? Q. So the only place you flew was from Long

-- I 10 A. Training company. mean where did you fly from? 11 Q. Training?

A. We were**~ased** in the Hamptons. 12 A. Flighttraining. Q. Okay. 13 Q. Flighttraining. So you taught people how to A. And flew mostly to LaGuardia or Boston or 14 fly? Atlantic City. 15 A. No. I was in the- they were trying to develop

Q. Was this charter? 16 a new - orenhance

- itwas called the ab initio A. Somewas charter; most was scheduled. 17 trainingprogram, and theybrought me in to help do Q. Andhow long were you there? 18 that. A. Approximately a year. 19 Q. When you say the ab initio training program, what Q. A year, okay. You were a captain there? 20 do you mean? A. Yes, sir. 21 A. It's a new airline pilot training. Q. Okay. What didyou do next? 22 Q. Okay. So whatwere yourresponsibiiities there? A. Trump Shuttle. 23 A. Recruiting and developing the program. Q. Trump Shuttle? 24 Q. Okay. Now, in I992 you were at FlightSafety as A. I**~as** the lastflight engineer or pilotever 25 what? What was yourtitle there? 

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### FEDERAL

# A~ATION ADMINISTRATION Deposition of: ALAN RUSINOWITZ v. AINAIRE 5/16/2013 5 (Pages 17 to 20)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 17 A. To growthe ab initio training department and 1 recruitment and to help develop airlinepilot training 2 programs. 3

Q. Okay. So when you say ab initio, is that a trade 4 name? 5

A. It's an industryterm "from thebeginning." It's 6 to take - a pilotwho has all thelicenses and 7 qualifications but who's never flown for the airlines or 8 doesn't have any airline background andteach them how 9 to be an airlinepilot. 1o Now, you can take someone who either had licenses 11
oreven from ground zero, you know, the guy who raises 12 his hand and says, I want to be a pilot. Itdepends on 13 theperson wherethey enter theprogram. 14

Q. Okay. So your last date there would have been 15 sometime in 2000? 16

A. Yes. 17 Q. Okay. And then that's when you started your 18 tenure with Martinaire? 1 9

A. Correct. 2 0 Q. And when you started yourtenure with Martinaire, 21 what was your firstjob? Didyou come in

-- 2 2

A. Executive vice president, chiefoperating officer.

Q. Executive vice president and chiefoperating 18 23 24 25

officer. And that's whatyou are today, right? 1

A. Correct. With thatI'm also the director of 2 operations. 3

Q. Directorofoperations. Tell me what you do as 4 director ofoperations. 5

A. As director ofoperations, I'm responsible for 6 all flight operations activities, chiefpilot, assistant 7 chiefpilotto all the pilots and flight following or 8 dispatch. 9

Q. Okay. So all those people report to you? 1o A. Everybody but the president- well, asDO, yes. 11 Q. Now, as chiefoperating officer, whatdoes that 12 mean? 13

A. Everybody reports to me but the president. 14 Q. Okay. Butdoesn'tthat mean that you also get 15 into the financial? Don'tyouhandle the financial 16 aspects ofthe

-- 1 7

A. I get involved in everything. 18 Q. Okay. So do youmanage the financial aspects of 19 the company? 2o

A. No. 21 Q. Okay. Butyoutalk to theperson whomanages the 2 2 financial aspects ofthe company? 2 3

A. Well, are you talking about accounting money management or the fiscal responsibilities ofbeing an 24 25 19 officer ofthe company and where is the money going and where is it beingpissed away and how do we earn it, and things like that?

Q. Well, let'sjusttalk about the fiscal responsibility. That comes underyourbailiwick, right?

A. Comes offany officer's bailiwick. Q. All right. A. Yes. Q. As far as the accounting function, that doesn't
come underyourumbrella?

A. Well, I am above the vice president of accounting.

Q. So-- A. But I am not an accountant. Q. Butthose peoplereport to you, too? A. To me and thepresident, yes. Q. You and the president? A. And the board. Q. Andthe board. Okay. A. Did I do good on recapping 31 years of experience?

Q. The only thing you've ever done in your life is aviation, right, in some form?

A. Yeah. Since I'm 16. Q. Yeah. Since you're 16?

A. Yeah. Q. And you started out at 16. What did you do? Fly planes at 16?

A. That's the youngest you could beto get a student's pilot license. And in New Yorkyou can't drive until you're 17. So I used to takethe bus, ride 20

my bike 11 miles where they father or mother would drive
me to the airport, sit in thecar, an office for two hours while I had a lesson, and then drive me home. MR. DWORKIN: Alan's dad was in the aviation business.

A. I'm second generation. Q. (BY MR. ARCHIER) So he was apilottoo? A. Yes. Q. Okay. Mr. Rusinowitz, I need you to tell me about the business structure ofMartinaire Aviation. Do you understand my question?

A. I would need something more specific. Q. Okay. All right. I noticed on yourtax returns, which I gave back to your attorney

--

A. Yes, sir. Q.

-- that you file your tax returns as a partnership?

A. Martinaire Aviation, LLC, is a limited liability company. 

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# A~ATION ADMINISTRATION Deposition of: ALAN RUSINOWITZ v. 

### £INAIRE 5/16/2013 6 (Pages 21 to 24)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 21 23 Q. Okay. Now, it's a limited liability company? 1 A. ButI believe I'm also the secretary; chief A. Yes, sir. 2 operating officer and secretaryon that one. Q. Okay.· But I'm a little bitconfused, ifit's a 3 It'stwo officers, I believe the chairman and the limited liability company, howthe partnership comes in 4 director. there? 5 Q. Okay. There are two officers and you're one of

A. Not being an accountant- 6 the officersbecauseyou're the secretary and the

-- Q. Okay. 7 A. Chiefoperating. A.

-- or a corporatelawyer specializing in 8 Q.

-- chiefoperating officer? structures, itis my understanding thata limited 9 A. Correct. liability company as a taxable entity is taxed as a 10 Q. And who is the other officer? partnershipwheretheprofits or losses go through to 11 A. Mitch Acker. the owners or partners in theLLC. 12 Q. Andhe's thepresident?

Q. Okay. Thanks for that clarification. 13 A. AndCEO.

Now, as far as annual reports go, does 14 Q. President and CEO? Martinaire, LLC, file its own annual report? 15 A. OfMartinaire, Inc. I wantto make surewe're

A. We are notrequired to file an annual report 16 talking about

- because we're not a corporation. 17 Q. Right.

Q. Okay. So it doesn't file an annual report? 18 A.

- only Martinaire, Inc. A. No, sir. 19 Q. Yeah. We're only talking about, right now, Q. Okay. Is there

-- is Martinaire, LLC, a 20 Martinaire, Inc. subsidiary ofsome otherholding company? 21 A. Okay.

A. No. Itis owned by a series ofother companies. 22 Q. Okay. Mitch Acker is the president and CEO of Q. Okay. When you say a series ofother companies, 23 Martinaire, Inc., and you're the secretary and chief can you explain that structure to me? 24 operating officerofMartinaire, Inc.?

A. There are three corporations, all U.S. citizens, 25 A. Yes, sir. 22 24 that own MartinaireAviation. 1 Q. And there are no other officers?

Q. Tell me what number one is. 2 A. There's a chairman ofthe board. A. The largestpercentage holderis a company called 3 Q. Okay. Who is the chairman ofthe board? Martinaire, Inc., or Martinaire, Incorporated. 4 A. JayPaynter, P-A-Y-N-T-E-R. Now, I'd have to

Q. Martinaire, Incorporated? 5 verify this

- A. Correct. 6 Q. Right. Q. Where are they located at? 7 A.

-- all by looking atthe chart-- A. Same office. 8 Q. Yeah, I understand. Iunderstand. Q. Same office? 9 A. -but.this is-- A. It's a mailing address. 10 Q. Yeah. This is yourrecollection

-- Q. So it's like a corporate shell? 11 A. Yes. MR. ARCHIER: Well, I withdraw that 12 Q. --okay, that Jay Paynter is the chairman ofthe question. 13 board. Are there a board ofdirectors?

A. They are an owner ofMartinaireAviation, LLC. 14 A. There's two directors: JayPaynter and Ed Acker. Q. (BY MR. ARCHIER) Okay. Okay. Does that 15 Q. What does Martinaire, Incorporated

-- what's its Martinaire, Incorporated, have its own set ofofficers 16 corporate purpose? that-- 17 A. Martinaire, Inc., owns an approximate 70 percent

A. Yes. 18 interestin Martinaire Aviation, LLC. Q. Okay. Are you an officer ofthat company? 19 Q. So they own 70 percent? A. Yes. 20 A. Approximately. Q. Okay. So how many officers ofMartinaire, 21 Q. Okay. Incorporated, are there? 22 A. The accountantwill tell you to the decimal

A. It'sbeen a long time since I've looked atthat 23 place. I'll go approximate. structurebook. 24 Q. Okay. And then there's company numbertwo that

Q. Okay. 25 owns what fraction approximately? 

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### v. 5/16/2013 7 (Pages 25 to 28)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 25 27 A. Eighteen. 1 A. TheLLC. Q. Eighteen percent? 2 Q. The LLC, okay. Andthen the third corporation A. Yeah. 3 that's a playerin this, I guess there's only

-- there's Q. What's the name ofthat company? 4 about 12 percent left? A. Mid-Atlantic Freight. 5 A. Yes. Q. Do youplay arole there? 6 Q. Okay. Who is that? A. No. 7 A. Union Flights. Q. Who are the players in that company? 8 Q. Whatkind ofcompany is that? A. Areyou ready for this? 9 A. They were an airline. Q. Yeah. 10 Q. Okay. A. My understandingis Mid-Atlantic Freightis owned 11 A. And now -- well, they own 12 percent of by Atlantic Aero. Atlantic Aero is owned by an aviation 12 Martinaire Aviation, LLC. companythat owns a bunch ofaviation companies. And 13 Q. Okay. thatcompany is owned by BerkeleyInsurance. Now, there 14 A. I do not know whatelse they do. might be anotherlevel ortwo ofholding- I don't 15 Q. Okay. Do you know the president and CEOthere? know. 16 A. Yes, sir.

Q. Okay. But-- 17 Q. What's his name? A. You know, butitgoes across the board. And 18 A. Jay Paynter, P-A-Y-N-T-E-R. that's my limited understanding ofhow theirstructure 19 Q. Do youknow ifthey have their ownboardof goes. I really don't know. I don'tgetinvolved with 20 directors? it. I deal with Mid-Atlantic and Mid-Atlantic Aero. 21 A. No, I don't know. That's all. 22 Q. Butdoyou have an idea ofwhattype of

Q. Is Mid-Atlantic out ofAddison? 23 activities Union Flights' inright now? A. No. 24 A. No. Q. Where are they out of? 25 Q. Butthey own the 12 percent? 26 28 A. Greensboro, North Carolina. 1 A. Yes. Q. Who are the officers ofthat? Do youknow the 2 Q. So all three ofthese companies ownMartinaire officers? 3 Aviation, LLC?

A. Noclue. 4 A. Correct. Q. No clue, okay. Do youknowthe president? 5 Q. Okay. So Martinaire Aviation, LLC, files A. The presidentof

...? 6 separate corporate tax returns? Q. Mid-Atlantic? 7 MR. DWORKIN: Ifyou know. A. Mid-Atlantic. Atlantic Aero is Jim Spinder, 8 A. Aviation files a tax return. S-P-I-N-D-E-R. 9 Q. (BYMR. ARCHIER) Yeah. Martinaire?

Q. And he's the president and CEO? 10 A. I believe those are the ones we provided to you A. I-- 11 already. Q. Youthink? 12 Q. Yeah, right. Those are the ones, right. A. I believe he's the president. 13 A. Ifwe provided it, then we file it. Q. Okay. Andwould they have their own separate 14 Q. All right. Okay. Butas far as the companies board ofdirectors? 15 thatwould file a annual report, do youknow ifany of

A. I have told you what I know about that. 16 these companies file an annual report that includes Q. Oh, all right. 17 Martinaire LLC's earnings? You don'tknowthat? A. I only deal with Jim Spinder atAtlantic Aero or 18 A. I might beJewish, butI'm not an accountant. I Mid-Atlantic. That's all. I don't know anything else 19 don'tknow anything about accounting laws like that. about them. 20 Q. Okay. Okay. Where is the money going to come

Q. Why would youhave to deal with Jim Spinder? I 21 from to pay any assessed civil penalties?
mean whattype of-- 22 MR. DWORKIN: Objection. Speculative,

A. He's on the Martinaire Aviation board of 23 assumes facts not in evidence, irrelevant. directors, management committee/board ofdirectors. 24 Q. (BYMR. ARCHIER) Youmay answer.

Q. Okay. The limited corporation? 25 A. Martinaire Aviation, LLC, will have to pay any 

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### FEDERAL AJitTION ADMINISTRATION Deposition of: ALAN RUSINOWITZ 

### v. 5/16/2013 8 (Pages 29 to 32)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 29 fine levied against it, ifthereis one. 1

Q. Will you get help from any ofthese other 2 companies? 3 MR DWORKlN: Same objection. 4 Q. (BY MR. ARCHIER) Youmay answer. 5 A. I highly doubt it. 6 Q. When you say you doubt it, why? 7 A. I can't answer that. 8 Q. Why can't you answer it? 9 A. I cannot answerfor thecompanies that own 10 MartinaireAviation whatthey would do because I am not 11
an owner ofany ofthe companies that own Martinaire 12 Aviation, LLC. 13

Q. Okay. Thank you for that bit ofinformation, Mr. 14 Rusinowitz. Am I pronouncing yourname -- 15

A. Rusinowitz. 16 Q. Rusinowitz. 17 A. You can call me Alan for these proceedings. I'm 18 fine with that. 1 9

Q. Ijustwant to make sure. A. Oh, yeah. Q. Somepeople don't like, youknow

... A. No. I preferAlan. Q. Okay. Alan

-- A. Yeah. See? I'm more comfortable already. 30 20 21 '22 23 24 25

Q. Okay. Now that I've learnedhowto pronounce 1 yourname, I'd like to practice itmore, actually. It 2 tookme a whileto make sure I was pronouncing it 3 perfectly. 4 MR. ARCHIER: Can youmarkthis as AR-2. 5 (ExhibitNo. AR-2marked.) 6 Q. (BY MR. ARCHIER) Alan, pleasetake a look at 7 Exhibit AR-2 andread it, please. And when you're 8 finishedreading it, Jet meknow. 9

A. (Witness complies.) Yes, sir. 10 Q. Alan, whatis this exhibitthat Ijust showed 11 you? 12

A. It is Martinaire's letter ofresponse to the 13 letterofinvestigation issued by the FAA. 14

Q. Okay. Now, I wantto askyou a question. In 15 paragraph one it says, "As an FAA-certificated air 16 carrier." Whatkind ofcertificated air carrieris 17 Martinaire? 18

A. 135. 19 Q. I35. Arethey certificated as anything else? 20 A. As an air carrier? Q. Yes. A. Air carrier, no. Q. Okay. Aside from an aircarrier, are they certificated as anything else? 21 22 23 24 25 A. We have a 145 maintenancerepair station certificate. We actually have two.

Q. Youhave two? A. Yes. Q. Okay. Why do youhave two? 31

A. We have one for ourAddison maintenance facility and one for ourLansingmaintenance facility. And why there has to betwo gets well beyond my understanding of the maintenance regulations.

Q. Now, I wantto draw your attention to page 2 of your letter. And in page 2 the last full paragraph, there's a statementthat you make, "In response to some concerns that the format ofMartinaire's existingNOPC form might have contributed to these discrepancies, it
was agreed that Martinaire would revise this form. This
was done and bythe following Monday July II,the form
was not only revised but printed and distributed system wide." When you say system wide, what do you mean?

A. I believe it was already testified to that the form was sentto all thepilots that we have across the country.

Q. Across the country, okay. Ijust wantedto make
sure. Now, ifyoutake a look at the last page, under "training" you continueto talk about the corrective 32 action that was done. And you say, "Martinairereviewed andrevisedits training program forpilots and dispatchers to heighten awareness and emphasize the requirementfor accuracy in completingNOPC forms." Correct?

A. Yes. Q. Okay. That's one corrective action. Andthen you indicate the further corrective action is that the "dispatchers underwent supplemental training on July 14 and 15." Thatwas anotherpart ofthe corrective action, correct?

A. Yes. Q. Andthen you indicatethat: On July 26 the chief pilotMichael Bates sent anotherbroadcast e-mail to all pilots to further clarify howto complete the NOPC and attaching a verbatimcopy ofHMR 175.33. Thatwas another aspect ofthe corrective action, correct?

A. Yes. Q. Okay. And then-- and all that comes under training. Now, you also indicate the corrective action under "auditing," that: The dispatch manager, the chief pilot, andassistantpilots nowperformdaily audits of the NOPC's. Correct?

A. Correct 

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### FEDERAL

# A~ATION ADMINISTRATION Deposition of: ALAN RUSINOWITZ v.

# ~INAIRE 5/16/2013 9 (Pages 33 to 36)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 33 Q. And anotherpartofthecorrective action was the 1 cross-checking. Andyou indicate, "Ifany errors are 2 found, they are to becorrectedpriorto the aircraft's 3 departure." Correct? 4

A. Yes. 5 Q. Okay. And Ijustwantto make sure. This pretty 6 much summarizes all the corrective action that was done? 7

A. Training, auditing, cross-checking, the new form, 8 everything we've talked about, everything I have in 9 here, yes. 1o

Q. This is it. The corrective action, okay. 11

Nextto thepresident, Alan, you're the highest 12 rankingperson in Martinaire Aviation, LLC? 13

A. Yes. 14 Q. Okay. And it sounds like,judgingfrom the 15 letterthat wejustread, thatyou'repretty hands-on, 16 correct? 17

A. Yes. 18 Q. Okay. Whatknowledge doyou have ofany previous 19 hazardous material violations? 2 o

A. Knowledge. 21 Q. Tell me whatknowledge. 2 2 A. Can you be more specific in your question? 2 3 Q. Okay. All right. That's fair. 24

Doyou know anything about anyprevious hazardous 2 5 34 material violations at Martinaire? 1

A. Violation means an admission ofguilt, so it was 2 the Purple Powerincident up in Michigan. 3

Q. Tell me about that. 4 A. Boy, did you open the door on thatone. 5

We had a pilot who washes airplanes on the 6 weekend in Lansing. He was up in Cadillac, Michigan, 7 for the day, and he decided to go to, I don't know, 8 Wai-Mart, Target, some store because hewanted to pick 9 up a degreasingsoap because they were -- he was outof 1 0 itin Lansing. 11 And whatever day ofthe weekitwas, he had time, 12 he got it. Put it on the airplane

- and this was all 13 found out afterwards. You know, flew it to Lansing. 14 Well, he arrived in Lansing, and that day 15 happenedto be a spot inspection by, I believe, Agent 16 Nutt, who is a hazardous materials, dangerous goods 1 7 inspectorin the Detroit, Lansing, Michigan

- in Michigan.

Q. Okay. A. And, matter offact, Agent Nutt noticed that

-- thepilottaking his bottle offthe airplane. Itwas a one-gallonjug. Itwas called Purple Power. I don't know ifyou're familiarwith that. It'sQ. I'mnot. 18 19 20 21 22 23 24 25 A.

- another form ofSimple Green. MR. DWORKIN: A degreaser and cleaner. A. Soap. Q. (BY MR. ARCHIER) Okay. A. And he asked, Hey, what's that? And I guess the pilot said, Oh, this is Purple Power, dah-dah-dah-dah. 35

And Agent Nuttthen started an investigation into the not-proper carriage ofa hazardous material. And he talked to thepilot, and then we ended up getting informed ofit. An LOI subsequently followed. And when we looked into it, you know, when we talked to the pilot andit was what I one hundred percentbelieve today was a pure "uh-oh."

Q. Itwas pure what? A. Uh-oh. Q. Oh, okay. A. I would say "oh" something else, but we're on the record.

Q. Okay. A. This was explainedto Agent Nutt. Thepilot on his own accord and against advice from mecalled Agent Nutt himselfand said, Hey, the company didn'tknow anything about it. Thecompany didn'tknow I bought it, the company didn't know it was on the airplane, the company didn't- I literally wentto the store, bought 36 this so I'd have, you know, the PurplePowerto wash the planes this weekend. That's it. And basically that was also my response- which I'm sure you have a copy somewhere of, but explaining all ofthat. And, again, thepilot on his own accord and against my advice went to the inspector, called the inspector, however he communicated directly and said, Hey, they knew nothing about it. Next thing I know, Martinaire gets an LOI, what I would consider a very compoundingLOI, saying that, you know-- and, well, a subsequent violation ofmulti, different regulations regardingthe carriage of hazardous materials, you know, improperly boxed. Well, it wasn't in a box. Improperly labeled. Well, ifit's not a box, it doesn't have labels. Improper shipping papers. Well, ifit's notin a box and it didn't have labels and the company didn't know we were even carryingit, well, I guess that- there was no paperwork with it. And this went on and on. And this was being handled by an FAA counsel out ofChicago who was more interested in puttinga notch in herbelt and putting money in the coffers ofthe FAA and they-- than she was in the merits ofthe case. And this went on and on, and finally we reached 

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# A~ATION ADMINISTRATION v.

# ~INAIRE Deposition of: 

### ALAN RUSINOWITZ 5/16/2013 10 (Pages 37 to 40)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 37 settlement on itbecause- I considered it go-away 1 money. Itjust wasn't worth fighting. The expense to 2 fight would have been too much for the company to bear, 3 and we settled it. 4 Butto this day and as we sit here now, I am one 5 hundred percentconvinced thattheFAA counsel upthere 6
was wrongin how they handled it. I hated admittingto 7 anything. I do not to this day believe the company did 8 anythingwrong. 9 We were open with the FAA. Thepilot against 10 advice was open and cooperated with theFAA. And all 11 that attorney wanted was a notch. I am one hundred 12 percent convinced ofthat. 13

Q. How much did the notice ofimposed civil penalty 14 go out for? 15

A. I don'trememberthis. I'd have to look at the 16 file. 17

Q. How much did you settle it for? 18**~** 1- 19 Q. You don't recall an exact

-- 20 A. I'd have to look at the numbers. 21 Q. Right. 22 A. But what was really interestingin that case is 2 3 thatone ofthe pieces ofdocumentation we got from the 2 4 FAA attorney was actually a cut-and-paste ofsome ofour 2 5

information and three paragraphs from somebody else's
case. The numbers, thedates, it wasjustlikethe first two paragraphs, it made no sense. My question at thetime, which on advice ofcounsel I was not allowed to ask, was: Who violates theFAA for making mistakes? But- and, you know, I'm sureitcomes across in my tone, butIjust got a...

Q. How many years ago did that occur? A. I think itwas finally settled a year and a half ago, two years ago. I mean it's in ourfile. I'd have to look atthe papers.

Q. Maybe two and a half? A. Yes. And Ijustthought itwas ridiculous atthe time.

Q. Okay. 38

A. TheFAA wants the carriers

- and this comes, I know, through AFS. You know, the FAA wants carriers to be open and work with the FAA. And I have no problem doing that. And like I said, I'vehad this 20-plus years. I've been doing this and working with different FAA offices all overthecountry. I want to be safe, I wantto be in compliance, and ifl'm not, let's fix it. And that's exactly the toneI took in the meeting with, you know, inspectors or 1 2 3 4 5 6 7 8 9 10 11 12 l3 14 15 16 17 18 19 20 21 22 23 24 25 agents Klimas, June, and Sawyer. We sat down at a table like this. You've got a box thatthey used in training with labels. We got the NO PC. We sat there- and basically I thinkitwas either Mike orCory said ergonomically designed this form. That's the proper way ofsaying "makingitidiot proof."

Q. Right. A. And we satthere and we talked this entirething through. Itwas a perfectmeeting. You know, to me that's the way it should be.

Q. Okay. A. We did everything we said we were going to do. 39

Weput everythinginto place. And we arein compliance. Thatto me is the goal, not how much can we afford to pay.

Q. Okay. A. Sorry for pontificating a littlebit. MR. DWORKIN: Can I stand up and bow? Q. (BY MR. ARCHIER) You don't feel strongly about this, do younow?

A. You know, there arejustcertain things that get to me about certain procedures. I understand compliance. You know, ifairlines in general would realize it's much easier and cheaperto comply than it 40 is to try notto comply and get awaywith something, it would be a loteasier for everybody. Butitis easier to comply. And ifyou have a question, call and ask. Heck, I talkto this AgentJune a couple ofweeks ago or two months ago, I think itwas. I think ofnothing picking up the phone and callingMr. Klimas ifI have to. I'll do itwith the drug division, I'll do itwith myPOI, PAl, PMI. Ifyou've got a question, ask. You're supposed to foster the relationships. But, you know, sometimes I thinkitjustgets a little out ofhand.

Q. Now, are you familiar ordo you have

-- do you know anything about any ofthe administrative actions that--

A. Well, I know the Portland one was broughtup earlier today.

Q. Okay. Aboutthe Portland one? A. Um-hmm (affirmative). I thinkitwas Portland or Washington, one ofthe two states. Up in the left of the country.

Q. All right. And that was an administrative action?

A. You know, administrative. I thinkthat one was administrative. I'd have to reference a documenton that, butI know that-- I know a lot ofthe little 

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# ~ATION ADMINISTRATION v.

# ~TINAIRE Deposition of: 

### ALAN RUSINOWITZ 5/16/2013 11 (Pages 41 to 44)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 41 43 things behind it. 1 Q. Okay.

Q. Tell me what you know about that. 2 A. The one we're here on. This is the inspection A. Pilotlanded, you know, therewas an agent there, 3 priorto that one. hazardous material division inspector, and he had a 4 Q. Okay. There was one in 2009 where there was an hazmat box on board and he didn'thave his NOPC. Asked 5 administrative action? where theNOPC was. Pilot said something abouthe ran 6 A. '08 or '09, yeah, somethinglike that. out ofthem. 7 Q. Okay. Now

-- all right.

Q. Okay. 8 A. The every-two-yearcycle. A. Okay. Instead oftakingliketheone outofhis 9 Q. Right. GOM as a sample and makingcopies ofitand using it or 10 A. I'm expectingthem to walkin the door any day calling down to dispatch priorto departure attheother 11 now. Except for tomorrow. airport, Hey, can you fax me one, hejust- I can only 12 MR. DWORKIN: Right after lunch. guess atthis point, because I wasn'tthere. Butmy 13 MR. ARCHIER: Becauseyou guys close at four feeling is he took thecoupon, load- you know, 14 o'clock tomorrow, right? inspected the box, loaded it, called dispatch, gave them 15 THE WITNESS: No. Deposition tomorrow. theinformation, becauseI think itwas testified to 16 MR. ARCHIER: You're right. You're right. earliertodaythatthey had it atdispatch. Okay. 17 MR. DWORKIN: They'll come afterthe I don't- then typical takethe coupon, putit 18 deposition. in your shirtpocket, fly to your designation. And 19 THEWITNESS: Take a five? that, I believe, was all explained to the

- thatcame 20 MR. ARCHIER: Let's take five minutes. out during theinvestigation also. And I believe that 21 (Break taken from 1:16p.m. to 1:23 p.m.) one -I'd say, yeah, it was administrative action, but 22 Q. (BY MR. ARCHIER) Alan, there are certain factors whether itwas administrative action orviolation, I 23 that we have to consider under49 CFR 107.331 in the don't actually rememberwithout seeing the documents. 24 assessment ofcivil penalty. And one ofthose is we Butthatwas, you know, anothercase of, you 25 have to consider theprevious violations. Another one 42 44 ' know, the company had no knowledge ofthis, and the 1 is we have to considerthe ability ofthe respondentto pilot should have thought. He should have, you know

-- 2 pay a civil penalty. And the other is the effect on the he knew whatto do. Itwasn't-- to me itwasn'ta 3 respondent's ability to continue in business. question oftraining or lack oftraining or anything. 4 Will a $206,000

-- $206,550 civil penalty put Hejustdidn't make a copy ofthe piece ofpaper. 5 Martinaire outofbusiness?

Q. Now,there was one othercase that I'm aware of 6 MR. DWORKIN: Objection. There are other that came out ofNorthwest Mountain. 7 factors, which include compliance disposition, MR. DWORKIN: That's the one that Alan

... 8 corrective action, and

-- Q. (BY MR. ARCHIER) Is thatthe one you're-- okay. 9 MR. ARCHIER: I'll read all ofthem ifyou Now, that-- from what I understand the one that came 10 want meto. I'll gothrough all ofthem. Ijust out ofNorthwest Mountain, that was not an 11 mentioned three, butthere are other factors. administrative action. That was -- 12 MR. DWORKIN: There are a whole bunch of

A. I-- 13 other factors. Q. Okay. Ijust-- all right. There may have been 14 Q. (BY MR. ARCHIER) Yeah. Let me mention the other
some otheradministrative actions that you may notbe 15 factors. I don't want to seem like I'm-- but the first
aware oformay not remember. 16 factor is the nature and circumstances ofthe violation.

A. There was the two-yearinspection priorto this 17 The other is the extent and gravity ofthe violation. inspections in '09. 18 The degree ofrespondent's culpability, the respondent's

Q. Okay. Where there any violations discovered 19 priorviolations, the respondent's ability to pay, the there? 20 effect on respondent's ability to continue inbusiness

A. I thinkthatwas corrective action by Mr. Klimas. 21 and such othermatters asjusticemay require. That's I thinkthat's when I initiallymet him. 22 all ofthem.

Q. Okay. Thatwould have been the result ofthis. 23 But I'm asking you with regard to F, the effect Okay. 24 on respondent's ability to continue in business. Will a

A. No, no. This was 2011. 25 $206,550 civil penalty put Martinaire Aviation, LLC, out 

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# c FEDERAL

# A~ATION ADMINISTRATION v.

# MA~TINAIRE Deposition of: 

### ALAN RUSINOWITZ 5/16/2013 12 (Pages 45 to 48)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 45 47 ofbusiness? 1 And I also believe that 2010 there was a loss. MR. DWORKJN: Objection. Speculative. 2 The documents thatyou showme -- and I'm talking about Q. (BY MR. ARCHIER) Youmay answer. 3 the incometax statements that showed a loss of$53,307? A. Well, we lost money in 2012. I believe we 4 A. Again, I'd have to see the documentsto be able provided a partial year at the time ofsubmittal, the 5 to comment anything on the numbers. end result was a biggerloss. 6 Q. Okay. And yourealize I did return those We have lostmoneyin the first quarterof2013. 7 documents to your attorney yesterday? So any not-in-the-ordinary-course-of-business payments 8 A. Yes. that Martinaire has to do, including attorney's fees for 9 Q. Ail right. this matter, and anypossible civil penalty, whatever 10 A. I have them in my car. the amount, could be extremely harmful and detrimental 11 Q. Okay. Andbased on what I was able to read, that to the survivability ofMartinaireAviation, LLC. 12 in 2009 there was a profit of$910,404?

Q. And I believe based on the documentation that you 13 A. Again, nothingto reference itto. showedme for the first quarter of, I believe, 2013, I 14 Q. Ail right. think you saidyouhad a loss, right? 15 MR. ARCHIER: I hate to do this but I need

A. Yes. 16 to take another five-minute breakbecause I think we're Q. Okay. And I wantto make sure I havethis loss 17 getting close to the end. Okay? numberright, but was that loss in the neighborhood of 18 MR. DWORKIN: No problem. 300,000? 19 (Breaktaken from 1:29p.m. to 1:39p.m.)

A. I don'tbelieve we provided any financial data 20 MR. ARCHIER: I do not have any further for calendaryear2013. 21 questions, and that's it.

Q. Okay. So that wouldhave been-- the loss would 22 MR. DWORKIN: Okay. havebeen for up -- at the time, that would have been 23 MR. ARCHIER: Thank you for your time. for2012? 24 (Proceedings concluded at I:39 p.m.)

A. I'd have to review the documents- 25 46 48 Q. I see what you're saying. 1 CHANGES AND SIGNATURE A.

-- to getthe numbers. 2 WITNESS NAME: ALAN RUSINOWITZ DATE: Q. Okay. 3 PAGE LINE CHANGE REASON A. Whatever we gave you, I believe itwas worse than 4 that atyear's end. 5

Q. Okay. 6 A. Because I believe you had a partiai year's. 7 Q. Right. I had

-- I had, I believe, up to 8 I0/3I/12. 9

A. Oh, itwas worse. 10 Q. Okay. And so it was worse? 11 A. Oh, yes, sir. 12 Q. Okay. Do you know whatthat numberwould have 13 been? 14

A. I'd have to have itin front ofme. 15 Q. Okay. But you do know itwas worse than what you 16 show? 17

A. I believe so. 18 Q. Okay. 19 A. I'd have to look atthe year-end data. 20 Q. And I know the profits forthe previous year 21 based on the information that you show me were 22 approximately $I97,I69 for 20II? 23

A. I'd have to look atthe reference. 24 Q. Right, okay. 25 

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# ~ATION ADMINISTRATION Deposition of: ALAN RUSINOWITZ v.

# MA~~TINAIRE 5/16/2013 13 (Pages 49 to 52)

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8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I, ALAN RUSINOWITZ, have read the foregoing deposition and hereby affix my signature that same is true and correct, except as noted above. 49
1 2 3 4 5 That the deposition transcript was returned to U.S. Legal Support on , 2013, was properly executed by the witness to the deposition officer, and the attached change/correct sheet contains any changes, and the reasons therefor, made by the 51

6 witness. ALAN RUSINOWITZ THE STATE**OF---~** COUNTY OF

____**~** 7 8 9 10 Before me, on this 11 daypersonally appearedALAN RUSINOWITZ, known to me (or 12 proved to me under oath orthrough 13 ------------->(description ofidentity card orotherdocument) to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that they executed the same for the purposes and consideration therein expressed. Given undermy hand and seal ofoffice this

____dayof 2013.

NOTARY PUBLIC IN AND FOR THE STATE OF

______ _ COMMISSION EXPIRES:

_____ _

U.S DEPARTMENT OFTRANSPORTATION FEDERAL AVIATION ADMINISTRATION OFFICE HEARINGS WASlflNGTON, DC
In the Matter of: ) FAA DOCKETNo. FAA-2013-0040 Martinaire Aviation LLC) FAA CASENo. 2011SW700189 (Civil Penalty Action) Respondent ) REPORTER'S CERTIFICATION DEPOSITION OF ALANRUSINOWITZ MAY 16,2013 I, Kristin McDowell, Certified ShorthandReporter in and for the State ofTexas, hereby certifYpursuant to the Federal Rules ofCivil Procedure to the following:

That this deposition transcript is atrue record of the testimony givenby ALANRUSINOWITZ, the witness namedherein, on May 16th 2013 after said witness was duly sworn/affirmedby me.

That the deposition transcriptwas submittedon the

___ _cday of 2013 to Mr. Michael L. 50

Dworkin, MICHAEL L. DWORKIN & ASSOCIATES, 465 California Street, Suite 210, San Francisco, California 94104 for examination, signature andreturn to me by

-------·2013. 14

15 16 17 18 19 20

21 22 23 24 25

1 2 3 4 5 6 7 8 9 10 11
12
13
14
15 16 17 18
19 20 21 22 23 24 25 That the original deposition transcript, or a copy thereof, together with copies ofall exhibits, was delivered on the

__day of , 2013 to Mr. James Archier for the safekeeping and use at trial.

That the amount oftime usedbyeach party at the deposition is as follows:

MR. JAMES ARCHIER.

........ 01 HOURS:Ol MINUTES MR. MICHAEL DWORKIN

....... 00 HOURS:OO MINUTES
That pursuant to information given to the deposition officer at the time said testimony was taken, the following includes counsel for all parties ofrecord:

MR. JAMES ARCHIER: Attorney for FAA; MR. MICHAEL DWORKIN: Attorney for Martinaire.

That a copy ofthis certification was served on all parties shown herein.

Certifiedtoby me this

__day of , 2013.

KRISTIN MCDOWELL Texas CSRNo. 8218 Expiration Date: 12/31114 U.S. Legal Support, Inc. Firm# 343 5910N. Central Expressway, Suite 100 Dallas, Texas 75206 214-741-6001 214-741-6824 (FAX)

Taxable cost$.

____ _ Job#2-143524 52



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# ~MARTINAIRE Deposition of: ALAN RUSINOWITZ 5/16/2013

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# (**FEDE~AVIATION** ADMINISTRATION

# ~MARTINAIRE Deposition of: ALAN RUSINOWITZ 5/16/2013

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# ADMINISTRATION~ MARTINAIRE Deposition of: ALAN RUSINOWITZ 5/16/2013

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# ADMINISTRATION~ MARTINAIRE Deposition of: ALAN RUSINOWITZ 5/16/2013

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### U.S. LEGAL SUPPORT

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# ADMINISTRATION~ MARTINAIRE Deposition of: ALAN RUSINOWITZ 5/16/2013

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# ADMINISTRATION~ MARTINAIRE Deposition of: ALAN RUSINOWITZ 5/16/2013

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# ADMINISTRATION~ MARTINAIRE Deposition of: ALAN RUSINOWITZ 5/16/2013

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# FEDE~AVIATION ADMINISTRATION JitMARTINAIRE Deposition of: ALAN RUSINOWITZ 5/16/2013

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# ADMINISTRATION~ MARTINAIRE Deposition of: ALAN RUSINOWITZ 5/16/2013

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### U.S. LEGAL SUPPORT

- DALLAS, TEXAS 214-741-6001 9

# ( FEDEJit AVIATION ADMINISTRATION

# ~MARTINAIRE Deposition of: ALAN RUSINOWITZ S/16/2013

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### U.S. LEGAL SUPPORT

- DALLAS, TEXAS 214-741-6001

# (



# ( FEDEtlt AVIATION

# ADMINISTRATION~ MARTINAIRE Deposition of: ALAN RUSINOWITZ 5/16/2013 11 

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### U.S. LEGAL SUPPORT

- DALLAS, TEXAS 214-741-6001

# (



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( FEDEJit AVIATION ADMINISTRATION 4tMARTINAIRE Deposition of: ALAN RUSINOWITZ 5/16/2013 12 

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### U.S. LEGAL SUPPORT

- DALLAS, TEXAS 214-741-6001

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# FEDE~ AVIATION

# ADMINISTRATION~ MARTINAIRE Deposition of: ALAN RUSINOWITZ 5/16/2013

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### U.S. LEGAL SUPPORT

- DALLAS, TEXAS 214-741-6001 13

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### FEDEJitAVIATION ADMINISTRATION

# ~MARTINAIRE Deposition of: ALAN RUSINOWITZ 5/16/2013

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### U.S. LEGAL SUPPORT

- DALLAS, TEXAS 214-741-6001 14

## (



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# c FEDEJit AVIATION ADMINISTRATION

# ~MARTINAIRE Deposition of: ALAN RUSINOWITZ 5/16/2013

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### U.S. LEGAL SUPPORT

- DALLAS, TEXAS 214-741-6001 15

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### 20 21 22 

### 23
24 

### 25

# FEDE~ AVIATION

# ADMINISTRATIO~. MARTINAIRE Deposition of: ALAN RUSINOWITZ 5/16/2013 48

CHANGES AND SIGNATURE WITNESS NAME: ALAN RUSINOWITZ DATE:

# §/1~}~3_ PAGE LINE CHANGE REASON

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- DALLAS, TEXAS 214-741-6001

# FEDE~AVIATION ADMINISTRATIOJil. MARTINAIRE Deposition of: ALAN RUSINOWITZ 5/16/2013

1 I, ALAN RUSINOWITZ, have read the foregoing 2 deposition and hereby affix my signature that same is 3 true and correct, except as noted above. 4 5

6 7 8 9 

### 10 11

# ---~~-----~---------- ALAN RUSINOWITZ



# - THE STATE OF**_l~**

# ___)
COUNTY OF

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Before 

### me,

# ~~-~~~-----------' on 

### this day personally appeared ALAN RUSINOWITZ, known to me (or 

### 12 proved to me under oath or through 

### 13

## l~~~L~--Jc~~-~) (description of identity 14 card or other document) to be the person whose name is 

### 15 subscribed to the foregoing instrument and acknowledged 

### 16 to me that they executed the same for the purposes and 17 consideration therein expressed. 18 Given under my hand and seal of office this 19

# -~Gt~- day

# of----t~-~~------------' 2013. 

### 20 21 22



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U.S. LEGAL SUPPORT

- DALLAS, TEXAS 214-741-6001 49

# FEDE~AVIATION**ADMINISTRATIO~.** MARTINAIRE Deposition of: ALAN RUSINOWITZ

. 5/16/2013

1

2

3

4

5

6

7

8 9 U.S DEPARTMEN.T OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION OFFICE HEARINGS WASHINGTON, DC

In the Matter of: FAA DOCKET No. FAA-2013-0040

Martinaire Aviation LLC ) FAA CASE No. 2011SW700189

Respondent (Civil Penalty Action}

REPORTER'S CERTIFICATION DEPOSITION OF ALAN RUSINOWITZ MAY 16, 2013 I, Kristin McDowell, certified Shorthand Reporter 10 in and for the State of Texas, hereby certify pursuant 11 to the Federal Rules of Civil Procedure to the 12 following: 13 That this deposition transcript is a true record of 14 the testimony given by ALAN RUSINOWITZ, the witness 15 named herein, on May 16th 2013 after said witness was 16 duly sworn/affirmed by me. 17 That the deposition transcript was submitted on the 18

# ~~JrJcL

# __day of

# ~UJ:~--- 2013 to Mr. Michael L. 19 Dworkin, MICHAEL L. DWORKIN & ASSOCIATES, 465 California 20 Street, Suite 210, San Francisco, California 94104 for 21 22 23 24 25 examination, signature and return to me by

# ~~L~----~~-----' 2013.



### U.S. LEGAL SUPPORT

- DALLAS, TEXAS 214-741-6001 

### so

# FEDE~ AVIATION ADMINISTRATIOttv. MARTINAIRE Deposition of: ALAN RUSINOWITZ 5/16/2013

1 That the deposition transcript was returned to 

## u.s. 2 Legal Support**on------------------~-'** 2013, was 3 properly executed by the witness to the deposition 4 officer, and the attached change/correct sheet contains 5 any changes, and the reasons therefor, made by the 6 witness. 7 8 That the original deposition transcript, or a copy 9 thereof, together with copies of all exhibits, was 10 delivered on the

------ day of ------------' 2013 to Mr. 11 James Archier for the safekeeping and use at trial. 12 That the amount of time used by each party at the 13 deposition is as follows: 14

15 16 17 MR. JAMES ARCHIER

........ . 01 HOURS:01 MINUTES MR. MICHAEL DWORKIN

...... . 00 HOURS:OO MINUTES

That pursuant to information given to the deposition 18 officer at the time said testimony was taken, the 19 following includes counsel for all parties of record: 20

21 22 23 24 25 MR. JAMES ARCHIER: Attorney for FAA; MR. MICHAEL DWORKIN: Attorney for Martinaire.



### U.S. LEGAL SUPPORT

- DALLAS, TEXAS 214-741-6001 511 2 3 4 5 6 7 8 9 

### 10 11



### 12

13

14

15 16 

### 17 18

# FEDE~ AVIATION

# ADMINISTRATIO~. MARTINAIRE Deposition of: ALAN RUSINOWITZ 5/16/2013

That a copy of this certification was served on all parties shown herein. 

# -· Certified to by me this 

# L<2th day

## of~~-{L~__, 2013.

KRISTIN MCDOWELL Texas CSR No. 8218 Expiration Date: 12/31/14 U.S. Legal Support, Inc. Firm # 343 5910 N. Central Expressway, Suite 100 Dallas, Texas 75206 214-741-6001 2 14

- 7 

### 4 1 - 6 B

### 24 (

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Taxable cost $

___________ 

### 52

19 Job#2-143524 

### 20 21 22 23 24 25



### U.S. LEGAL SUPPORT

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# •

EXHIBITF Deposition ofPaul Daniel Klimas

FAA CaseNo. 2011 SW700189 I DMS No. FAA-2013-0040 MARTINAIRE AVIATION, LLC'S RESPONSE AND OBJECTIONS TO COMPLAINANT'S MOTION FORDECISION

# (



# c ··-:. 1
2
3
4 

# •

ORAL DEPOSITION OF PAUL DANIEL KLIMAS
UNITED STATES OF AMERICA DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, D.C. In the Matter of: § § 

### FAA Case No. § 

### 2011SW700189 Page 1

5 § 

### FDMS No. FAA-2013-0040 § 6
7
8
9 

### 10
11 

### 12 13 14 MARTINAIRE AVIATION, LLC § 

### Judge: Honorable § 

### Richard C. Goodwin

************************* ORAL DEPOSITION OF PAUL DANIEL KLIMAS May 17, 2013 ************************* 

# {.**-..~** 

### CERTIFIED COPY

.

15 ORAL DEPOSITION OF PAUL DANIEL KLIMAS, produced as a 16 witness at the instance of the PLAINTIFF, and duly sworn, 17 was taken in the above-styled and numbered cause on .May 18 17, 2013 from 9:01a.m. to 9:59a.m., before JanaK. 19 Richter, CSR, CMRS, CLR, RSA in and for the State of 20 Texas, reported by machine shorthand, at Regus Office 21 Suites, 2000 East Lamar Boulevard, Suite 600, Arlington, 22 Texas 76006, pursuant to the Federal Rules of Civil 23 Procedure and the provisions stated on the record or 24 attached hereto.



## r '\ 25 "--. 

### Sunbelt Reporting 

### & Litigation Services Austin, Bryan/Colleg Station, Corpus Christi, Dallas/Fort Worth, East Texas, Houston, San Antonio

# c

( 

# •

ORAL DEPOSITION OF PAUL DANIEL KLIMAS
1 

### A P P E A R A N C E S 2 

### 3 ATTORNEY FOR MARTINAIRE AVIATION, LLC: 4 

### Mr. Michael L. Dworkin 5 MICHAEL L. DWORKIN AND ASSOCIATES 465 California Street, Suite 210 6 San Francisco, California 94104 Telephone: 415-421-2500 7 Facsimile: 415-421-2560
8 

### 9 ATTORNEYS FOR FEDERAL AVIATION ADMINISTRATION: 10
11 

### 12 13 14 15 16 17 18 19 20 21 22 

### 23 24 25 Mr. James Archier Ms. Becky Holmes FEDERAL AVIATION ADMINISTRATION Office of Regional Counsel Southwest Region, ASW-7 2601 Meacham Boulevard, Suite 6E Fort Worth, Texas 76137 Telephone: 817-222-5099 Facsimile: 817-222-5092

ALSO PRESENT: Mr. Alan S. Rusinowitz 

## * * * * *

Sunbelt Reporting & 

### Litigation Services Page 2

Austin, Bryan/Colleg Station, Corpus Christi, Dallas/Fort Worth, East Texas, Houston, San Antonio

## (



# (

( 

# "--· 

# • Page 3 ORAL DEPOSITION OF PAUL DANIEL KLIMAS
1 

### INDEX
2 

### Page
3 

### Appearances

............................. . 2
4 

### Examination by Mr. Michael L. Dworkin

.... 5
5 

### Changes and Signature

................... . 32 

### 6 Reporter's Certification

.............................. 33
7 

## * * * * *
8
9 10
11 12 13 14 15 16 17 18 19 20 21 22 23
24 25 

### Sunbelt Reporting 

### & Litigation Services Austin, Bryan/Colleg Station, Corpus Christi, Dallas/Fort Worth, East Texas, Houston, San Antonio

# (



# (

(**~** 

# • Page 4 ORAL DEPOSITION OF PAUL DANIEL KLIMAS
1 

### EXHIBIT INDEX 2 Number Description Page Marked 3 1 

### Martinaire Aviation, LLC's (First Amended)
4 

### Notice of Deposition and Request for 5 

### Production of Documents and Things......... 5 6 2 

### Resume of Paul Daniel Klimas................. 7 7 3 

### Letter dated June 19, 2012 to Mr. Michael
8 

### L. Dworkin from James Archier

.............. 18 9 

### 4 

### Attachments to Martinaire's letter of 10 response. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
11 5 

### Letter dated June 9, 2009 to Mr. Alan 12 Rusinowitz from Bryan Buchanan; letter 13 

### dated May 29, 2009 to Paul Klimas from 14 Alan Rusinowitz; letter dated May 14, 2009 15 

### to Paul Klimas from Alan Rusinowitz

........ 27 16 

### 6 

### Order Assessing Civil Penalty dated June 19, 17 

### 2009

...................................... 29 18 7 

### Order Assessing Civil Penalty dated May 18, 19 2009 30 

### 20 

## * * * * * 21 22
23 

### 24 25 

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# • Page 5 ORAL DEPOSITION OF PAUL DANIEL KLIMAS
1 

### PAUL DANIEL KLIMAS, 2 having been first duly sworn, testified as follows: 3 EXAMINATION 4 (Klimas Exhibit 1 was marked.) 5 QUESTIONS BY MR. MICHAEL L. DWORKIN:
6 

### Q Good morning, Mr. Klimas.
7 A 

### Good morning. 8 

### Q I've handed you what's been marked as Klimas 1. 9 This is the notice of deposition for both you and 10 Mr. Buchanan. Have you seen this before?
11 A 

### Yes, I have. 12 Q Okay. Have you ever had your deposition taken 13 before? 14 

### A No, sir. 15 

### Q Okay. Let me go through a few rules of 16 engagement, so to speak. 17 Everything that is said here in the 18 conference room while we're on the record is being 19 reported by the court reporter. She will transcribe it 20 into a booklet form, and you'll have the opportunity to 21 review your transcript and to make changes or 22 corrections. 23 It is very, very important that while we're 24 sitting here, you give us your best answer because if 25 this matter goes to hearing, I can comment on any changes Sunbelt Reporting 

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### Page 6 ORAL DEPOSITION OF PAUL DANIEL KLIMAS 

# ( 1 or corrections you 1

### ve made to your transcript. So try to 2 give us your best answer. 3 A 

### Understood.
4 Q 

### If you -- and, also, because of the limitations 5 of the court reporter system, our court reporter, 6 although she is quite capable, can only take down what 7 one person is saying at a time. So please wait for me to 8 finish the question before you start to answer. Okay?
9 A 

### Yes, sir. 10 Q 

### And likewise, I 1 

### ll try not to step on you. 11 It is also very, very important that all 12 answers be verbalized. A nod or a shake of the head 

# ( 13 doesn 1 

### t show up in the transcript. Likewise, 11

### uh-huh 11 

### 14 and 11

### huh-uh 11 

### look identical in the transcript, so it is 15 important that 11

### yes 11 

### answers be verbalized 11

### yes 11 

### or 16 affirmative, and 11

### no 11 

### answers be verbalized as 11

### n0 11 

### or 17 negative. Okay? 18 A 

### Yes, sir. 19 Q 

### This is not the Spanish Inquisition. The 20 

### objective is not to make you uncomfortable. The 21 objective is just simply to gather facts in connection 22 with this case. I 1

### m not attempting to harass you, make 23 you uncomfortable, upset you, or anything like that. 24 Okay? We 1 

### ll just maintain a very, very professional 25 dialogue during this deposition. Sunbelt Reporting & 

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### Page 7 ORAL DEPOSITION OF PAUL DANIEL KLIMAS 

# ( 1 A Yes, sir.
2 

### Q Is there any reason why your deposition cannot
3 

### be taken today? 4 A 

### No, sir. 5 

### Q Okay. Are you under the influence of any drugs
6 

### or medication that would adversely affect your ability to 7 

### be deposed today?
8 A 

### No, sir.
9 

### Q Let's see -- I was going to give you one more 10 

### admonition, but it seems to have slipped my mind. If it 11 comes back, I'll remember it. You know, one of the 12 things that's the first to go is the memory. 

# c 13 

### (Klimas Exhibit 2 was marked.) 14 

### Q (By Mr. Dworkin) Okay. I have here, which your 15 attorney, Mr. Archier, provided me, your CV. It's 16 identified as Klimas Exhibit 2. It was also Government 17 Exhibit B in some prior documents that the FAA had filed 18 in this case. It appears to be your CV; is that correct? 19 

### A 

### Yes, it is. 20 

### Q Okay. Is that your current CV? 21 A 

### Yes, it is. 22 

### Q Okay. Has there been any changes since that was 23 prepared?
24 

### A 

### No, sir. 

## (_ 25 

### Q Okay. And what you listed there is true and Sunbelt Reporting & Litigation Services Austin, Bryan/Colleg Station, Corpus Christi, Dallas/Fort Worth, East Texas, Houston, San Antonio

### Page 9 ORAL DEPOSITION OF PAUL DANIEL KLIMAS
1 

### Q Okay. And the regulation says that the operator 2 of the aircraft has to provide this to the pilot in 3 command?
4 

### A Yes, sir, it does. 5 

### Q Okay. There has been an assertion made in this 6 case by the FAA that the notification of pilot in 7 command, also known as a NOPC, N-0-P-C, serves some other 8 purposes. Are there other purposes that the NOPC serves? 9 A Yes, there is, sir. 10 

### Q Okay. What other purposes does the NOPC serve?
11 A 

### In addition to what you've just spoke about also 12 for emergency response procedures in event of an incident 

# c 13 involving the aircraft. 14 

### Q Okay. And specifically, how would a NOPC come 15 into play in an emergency response? 16 A 

### If there's an incident involving the flight, 17 somebody on the ground would now have access to the 18 information on the NOPC for emergency response 19 procedures. 20 

### Q Okay. Where in 175.33 does it state that the 21 NOPC is used for emergency response procedures or should 22 be available for emergency response procedures? 23 

### A It does not. 24 

### Q Okay. Are there any FAA written opinions that 25 are publicly available, to your knowledge, that state Sunbelt Reporting & 

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### Page 10 ORAL DEPOSITION OF PAUL DANIEL KLIMAS 

# ( 1 that the NOPC is used for emergency response purposes? 2 A 

### No. That is a practice. 3 Q A practice that has been in effect for how long?
4 

### A One example I can think of was the Fed-Ex 5 incident. 6 Q 

### And that occurred when and where? 7 A 

### I believe 1999 in New York. I'm not sure on the 8 years. 9 Q 

### Okay. Are there any FAA handbooks or orders or 10 advisory circulars that state that the NOPC, in addition 11 to serving as a notice to the pilot in command, is also 12 to be used for emergency response procedures? 

# ( 13 A I don't believe so. Not that I'm aware of. 14 

### Q Now, you were -- as the hazardous materials 15 specialist, you were the investigating inspector in this 16 case; is that correct? 17 A Yes, sir. 18 Q 

### Now aside from Martinaire, are there other 19 carriers that you routinely inspect and survey concerning 20 NOPC issues? 21 A 

### Yes. 22 Q 

### What carriers are there? 23 A 

### American Airlines, United Airlines, just to name 24 two. 

# (

'---- 

### 25 Q 

### As an example

-- well, with American, when an Sunbelt Reporting & 

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# c

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# "-· 

# • Page 11 ORAL DEPOSITION OF PAUL DANIEL KLIMAS 1 American Airlines flight is caring hazardous materials, 2 does the American flight crew prepare the NOPC, or is 3 that done by somebody else in some office somewhere? 4 A The flight crew reviews the NOPC. 5 

### Q Okay. But the NOPC is actually prepared by 6 someone else other than the flight crew; is that correct? 7 A Yes, sir. 8 

### Q Okay. And likewise, with United Airlines? 9 A Yes, sir. 10 

### Q Okay. And unlike American and United Airlines, 11 in Martinaire•s case, it is the pilot who physically 12 prepares the NOPC; is that correct? 13 A No, sir. The dispatcher takes a -- the NOPC is 14 communicated to the dispatcher. 15 Q And it's communicated to the dispatcher by the 16 pilot? 17 A Yes, sir. 18 

### Q Okay. In the case of American Airlines and 19 United Airlines, does the flight crew communicate that 20 information to dispatch, or is that information already 21 within the company? 22 A Only when an item has been removed at the end or 23 they reject an item. 24 Q Okay. So in other words, in the case of 25 American or United, the NOPC is prepared by some entity Sunbelt Reporting & 

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# ( 1 other than the flight crew?
2 A 

### Yes, sir.
3 Q 

### And it is based upon information that is 4 acquired by some entity other than the flight crew within 5 the United or the American organizations?
6 A 

### Yes, sir.
7 Q 

### And the only time that the flight crew -- and 8 I'm using the term "flight crew," because American and 9 Uni'ted Airlines are piloted by more than one person -- 10 A Yes, sir. 11 Q

-- 

### at least I should hope so -- the only time 12 that the flight crew provides some information to 

# ( 13 dispatch is in the event some item is removed or 14 rejected? 15 A Yes, sir. 16 Q In Martinaire's case, it is the pilot who is 17 providing the information to dispatch; is that correct? 18 A Yes, sir. 19 Q 

### Okay. So in terms

-- although dispatch prepares 20 the notice to the pilot in command, in essence, the pilot 21 is preparing the basis for

-- the guts of the 22 notification to himself? 23 A Yes, sir. 24 Q Now, on July 8 of 2011, you conducted

-- and it 

# ( 25 wasn't just you, but there were other FAA hazardous Sunbelt Reporting 

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# ( 1 material specialists who accompanied you an inspection 2 at Martinaire's facility; is that correct? 3 A Yes, sir. 4 

### Q And that was at their facility in Addison, 5 Texas?
6 

### A Yes, sir. 7 

### Q And this was a full-based HAZMAT inspection? 8 A Yes, sir. 9 

### Q You were not just looking at NOPCs; you were 10 looking at their HAZMAT training program, their HAZMAT 11 compliance, everything? 12 A At Addison? 

# ( 13 

### Q Yes. 14 A Yes, sir. 15 

### Q In addition to the Addison inspection, did you 16 conduct an inspection at other Martinaire facilities that 17 day? 18 A Yes, sir. 19 

### Q Where? 20 A DFW International Airport. 21 

### Q Okay. And what were you looking for at DFW? 22 A Compliance with the pilot notification 23 procedures, aircraft loading, acceptance, watching, 24 making sure they're operating safely. 

# (

__ 

### 25 Q 

### Okay. How long did the DFW inspection take? Sunbelt Reporting & 

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### Page 14 ORAL DEPOSITION OF PAUL DANIEL KLIMAS
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### A I don't recall. 2 

### Q Okay. With respect to what you observed at DFW, 3 did Martinaire appear to be in compliance?
4 A 

### Yes, sir. 5 

### Q 

### And so then you went to Addison. And what 6 things were you looking at in Addison, other than the 7 NOPCs? 8 A 

### Hazardous materials training records. As I 9 recall, took a look at the stores operation as well. 10 Q And were the HAZMAT training records in 11 compliance? 12 A 

### Yes, sir. 13 Q 

### Was the stores operation in compliance? 14 A 

### Yes, sir. 15 

### Q 

### As a matter of fact, would it be fair to say 16 that with respect to HAZMAT compliance, other than the 17 NOPCs, everything else that you and your team saw was in 18 compliance with the HMRs? 19 

### A 

### We had no other findings. 20 Q 

### How long did the inspection at Addison take? 21 A 

### I don't recall. I believe we were done probably 22 12:30 or 1:00 o'clock that day. We started early at DFW. 23 

### Q Okay. Now, in terms of Martinaire's training, 24 Martinaire performs HAZMAT training every 12 months; is 25 that correct? Sunbelt Reporting & 

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### Page 15 ORAL DEPOSITION OF PAUL DANIEL KLIMAS 

## ( 1 A 

### As I best recall, yes. 2 Q 

### The regulations require training every 24 3 months, but Martinaire elects to do 12 months; is that 4 correct?
5 A 

### Yes, I believe so. 6 Q 

### Do you think that's a good thing?
7 A 

### Yes, I personally do.
8 Q 

### And so what brings us here together on this day 9 in this case are 12 sample NOPCs that you had some 10 difficulties with? 11 A 

### Yes, sir. 12 Q 

### Okay. And which Martinaire admitted were 

# ( 13 deficient? 14 A 

### Yes, sir. 15 Q 

### There's been no argument from Martinaire that 16 these NOPCs were deficient? 17 A 

### Correct. 18 Q 

### They basically fessed up and said, "You're 19 right"? 20 A 

### Yes, sir. 21 Q 

### And in response to your findings, what, if 22 anything, did Martinaire do? 23 A 

### Retraining. That's about

-- I have not 24 performed an inspection of Martinaire since that time, so 25 I can only go with what was in the letter. Sunbelt Reporting & 

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### Page 16 ORAL DEPOSITION OF PAUL DANIEL KLIMAS 

# ( 1 

### Q Did you find that Martinaire had expressed 2 sufficient level of concern about your findings?
3 

### A Yes, sir. 4 

### Q Do you think that Martinaire's response was 5 adequate? 6 A 

### Yes, sir. 7 

### Q Do you think that their corrective action was 8 adequate?
9 A 

### Yes, sir. 10 

### Q As a matter of fact, following the inspection of 11 July 8th, Martinaire had

-- it actually revised their 12 NOPC form; is that correct? 

# ( 13 

### A Yes, sir. That was in the letter of response, I 14 believe. I have not performed an inspection since that 15 time. 16 Q Okay. As a matter of fact, the corrective 17 action that Martinaire took was relatively instantaneous; 18 was it not? 19 

### A I believe changes were enacted rather quickly, 20 yes, sir. 21 

### Q Okay. Your inspection was July 8, and I believe 22 the changes took place something, like, July 11th? 23 

### A 

### We met on July 11th, yes. 24 

### Q Okay. And the purpose of the meeting on 

# ( 25 July 11th was what? Sunbelt Reporting & 

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### Page 17 ORAL DEPOSITION OF PAUL DANIEL KLIMAS 

# ( 1 A 

### To discuss the inspection and what had occurred.
2 Q 

### Okay. And at that July 11th meeting, was that 3 when Martinaire had actually revised the NOPC form?
4 A 

### I do recall talking about it on that date.
5 Q 

### Okay. Did you or your team play a role in the 6 changes that were made to the form?
7 A 

### I believe those were completed by 8 Mr. Rusinowitz.
9 Q 

### Did you provide any input? 10 A 

### I don't recall. 11 Q 

### Is there any corrective action that you would 12 have like to have seen Martinaire take that they didn't 13 take? 14 A 

### I don't recall any, no. 15 Q 

### So as we sit here today, they were -- they took 16 these findings seriously, they acted accordingly, and 17 they were fully responsible? 18 A 

### Yes. So you have no gripes as to the amount of effort

# I Q 19



### or the

-- or with respect to the concern or the 20 

### responsiveness or the thoroughness of the corrective 21
22 

### actions that Martinaire undertook? 23 A 

### No, I do not. 24 Q 

### Now, as the investigating inspector, you 25 prepared what is known as an EIR; is that correct? Sunbelt Reporting 

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# • • Page 18 ORAL DEPOSITION OF PAUL DANIEL KLIMAS 

## ( 1 A 

### Yes, sir. 2 Q 

### And the "EIR" stands for Enforcement 3 Investigative Report
4 A 

### Yes, sir.
5 Q



### -- is that, correct?
6 A 

### Yes, sir.
7 

### (Klimas Exhibit 3 was marked.)
8 Q 

### (By Mr. Dworkin) Mr. Klimas, I'm handing you or 9 have just handed you what has been marked as Klimas 10 Exhibit 3. 11 There is a cover letter to me from 12 Mr. Archier, but that cover letter represents that the 13 attachments are the EIR. If you could take a look at 14 that and verify that the EIR has been attached to that 15 letter. 16 A 

### Yes, sir, it has. 17 Q 

### Is that the EIR that you prepared? 18 A 

### Yes, sir. 19 Q 

### Okay. Going to the first page after 20 Mr. Archier's letter there's an FAA memorandum dated 21 September 20, 2011. It's to David Donnell, the Assistant 22 Chief Counsel from Marty S. Alford. Is he your ultimate 23 supervisor? Other than Mr. Huerta? 24 A 

### Ms. Alford

-- 25 Q 

### "Ms. Alford." I'm sorry. .sunbelt Reporting & 

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# ( 1 A



### -- is the central office director. 2 Q 

### Was this memorandum prepared by Ms. Alford, or 3 was it prepared by you?
4 A 

### I did not prepare this.
5 Q 

### Okay. Let's go to the

-- we have the

-- the 6 next page is the Enforcement Investigation Report. And 7 that's the document that you have prepared; is that 8 correct?
9 A 

### Yes, sir. 10 Q 

### And the next page bears a redaction under 11 "Regulation Believe Violated." Did you redact that? 12 A 

### No, sir. 

# (_ 13 Q 

### So that was done by somebody else? 14 A 

### Yes, sir. 15 Q 

### Okay. And

-- but under the "Regulations Believe 16 Violated," when you prepared the report, I would presume 17 you put in the pertinent sections of the HMR that you 18 believed were violated by Martinaire; is that correct? 19 A 

### Would you mind restating the question?
20 Q 

### When you prepared

-- you did prepare Block 18

-- 21 not the redaction, but you put something in Block 18 when 22 you prepared your report? 23 A 

### Yes, sir. 24 Q 

### And that would have been the provisions of the 

# (_ 25 HMRs that you believed that Martinaire violated by reason Sunbelt Reporting 

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### Page 20 ORAL DEPOSITION OF PAUL DANIEL KLIMAS 

## ( 1 of the incomplete NOPCs?
2 A 

### That's what goes in the box.
3 Q 

### Okay. And on the next page, there's another 4 redaction. And, again, that's "Regulations Believed 5 Violated," the same thing. And then there are some 6 recommendations under "Type Action" and "Sanction," and 7 those have been redacted?
8 A 

### Yes, sir.
9 Q 

### The next page is a I guess a Regional 10 Division Review by somebody in regional headquarters; is 11 that correct? 12 A Yes, sir. 

# ( 13 Q 

### It's Gary Moore? 14 

### A Yes, sir. 15 Q 

### Then after Mr. Moore's sign-off we have a 16 

### Section B of the EIR, and that was also prepared by you? 17 A 

### Yes, sir. 18 Q 

### And if you go to paragraph Roman Numeral II of 19 Section B, which I think is about four pages in, "Factor 20 Affecting Sanction," and, likewise, Roman Numeral III, 21 "Other Information" and Roman Numeral IV, "Enforcement 22 Decision Tool Worksheet," were those redactions done by 23 you or by somebody else? 24 A 

### I did not perform those redactions, sir. 25 Q 

### Okay. So with respect to items II, III, and**IV~** 

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### Page 21 ORAL DEPOSITION OF PAUL DANIEL KLIMAS 

# ( 1 you had put something in

-- 2 A 

### Yes, sir.
3 

### Q

-- that report; is that correct? 4 A 

### That's correct. 5 

### Q What factors did you consider that affected 6 sanction?
7 

### A 

### Compliance history.
8 

### Q 

### And specifically what about Martinaire's 9 compliance history? 10 A 

### Would you mind being more specific? 11 Q 

### Yeah. You said you considered Martinaire's 12 compliance history, and, specifically, what? Were there 

# ( 13 other incidents that you felt were significant? 14 

### A 

### There were similar violations within the last 15 five years. 16 

### Q Okay. Were there any other factors that you 17 considered in determining sanction? 18 

### A 

### The nature of the violation. 19 

### Q 

### What else? 20 

### A 

### I believe that was all, sir. 21 Q 

### Did you consider Martinaire's response -- 22 

### A 

### Yes. 23 

### Q



### -- to the FA findings?
24 

### A 

### Yes. 25 

### Q 

### And the immediacy of Martinaire's response? Sunbelt Reporting & 

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( \ 

### Page 22 ORAL DEPOSITION OF PAUL DANIEL KLIMAS 1 A 

### Yes. 2 Q 

### And the comprehensiveness of Martinaire's 3 response?
4 A 

### Yes.
5 Q 

### What did you put in, in terms of "Other 6 Information" in block Roman Numeral III?
7 

### MR. ARCHIER: I'm going to object to that 8 question. This document that is redacted is redacted by 9 the attorney, me. He does not make the redactions. The 10 material that's redacted here goes directly to the 11 protective order and the material that's under protection 12 of the protective order. 13 

### MR. DWORKIN: Okay. Are you directing him 14 not to answer? 15 

### MR. ARCHIER: I am directing him not to 16 answer that question. 17 

### MR. DWORKIN: And, likewise, Roman Numeral 18 IV, are you directing him not to answer? 19 

### MR. ARCHIER: What's your question?
20 

### MR. DWORKIN: What he had put in the 21 "Enforcement Decision Tool Worksheet" in his report. 22 MR. ARCHIER: That is correct. 23 

### MR. DWORKIN: And likewise, the very next 24 page, "Hazardous Material EDP Worksheet," you're also .25 instructing him not to answer any questions regarding Sunbelt Reporting 

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### Page 23 ORAL DEPOSITION OF PAUL DANIEL KLIMAS 

# ( 1 what he had inserted in that report?
2 

### MR. ARCHIER: That is correct. 3 

### MR. DWORKIN: And that goes on for pages 2, 

### 4 3 I 

### 4, 51 

### and 6?
5 

### MR. ARCHIER: That is correct. 6 Q 

### (By Mr. Dworkin) In response to the FA's letter 7 of investigation, and although you were the investigating
8 

### inspector, it was Bryan Buchanan who had written the 9 actual LOI, is that correct, or signed the LOI? 10 A 

### He signed the LOI. 11 Q 

### Okay. And I believe that went out on July 19th? 12 A 

### Yes, sir. 

# ( 13 Q 

### Okay. And Martinaire responded to LOI by a 14 letter dated August 2; 

### is that correct? 15 A 

### Yes. 16 Q 

### And I believe you have it right in front of you? 17 A 

### Yes. 18 Q 

### Is there anything in that Martinaire letter with 19 which you disagree? 20 A 

### No, sir. 21 Q 

### Now, attached to that letter were a number of 22 attachments that were referenced right in the letter, 23 Attachments A through, I believe, M, correct? 24 A 

### I recall a number of attachments, yes. 

# ( 25 Q 

### Okay. And what that

-- those attachments Sunbelt Reporting & 

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# • • Page 24 ORAL DEPOSITION OF PAUL DANIEL KLIMAS 1 consisted of included, among other things, pertinent 2 provisions of Martinaire's general operating manual or 3 GOM, 

### changes to the HAZMAT training program that they had 4 immediately adopted, the revised NOPC form among other 5 things; is that correct? 6 

### A As I recall, yes, sir.
7 

### Q And when you got that, you were satisfied that 8 Martinaire had essentially fixed the problem? 9 

### A If they followed their program. 10 

### Q How come none of those attachments to 11 Mr. Rusinowitz or Martinaire's August 2 letter ended up 12 in your EIR? 

# ( 13 A 

### Would you mind rephrasing that question, 14 possibly? 15 

### Q How come none of the attachments in Martinaire's 16 letter of response of August 2, 

### 2011, other than 17 Martinaire's letter, but how come the attachments didn't 18 end up in your EIR? 19 A 

### I don't recall. Now, 

### what they sent me is what 20 I included in their letter of response. 21 Q But you didn't include the attachments? 22 A 

### I don't recall not including the attachments. 23 

### (Klimas Exhibit 4 was marked.) 24 

### Q (By Mr. Dworkin) Let me represent to you that 

# ( 25 what has been marked as Klimas Exhibit 4 are the Sunbelt Reporting 

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### Page 25 ORAL DEPOSITION OF PAUL DANIEL KLIMAS 

# ( 1 

### attachments to Martinaire's letter of response. 2 

### Were any of those documents included in
3 

### your EIR?
4 A 

### If they sent them to me, I included them in the
5 

### EIR
6 Q 

### Okay. Well

-- 7 A


## -- as part of. the index of attachments

-- 8 Q 

### Okay. Well
9 A
-- 

### items of proof. 10 Q 

### Well, I'm looking at your EIR, Exhibit 3 I 

### which 11 

### is, oh, maybe about a half an inch thick and I'm looking 12 

### at the attachments to Martinaire's letter of response, 

# ( 13 

### which are about an inch and a half thick, and how could 14 that inch-and-a-half pile have been included in your EIR 15 

### which is about one-third the thickness? 16 A 

### If it was submitted, I included it. 17 Q 

### So in other words, what has been represented as 18 

### being the EIR, is not, in fact, the EIR because the 19 A 

### It was -- right. It is a reprint of their
20 

### HAZMAT program. 21 Q 

### Yes. 22 A 

### In total. And if I

-- if I received it as part 23 of the letter of response, I included it. 24 Q 

### Well, if it wasn't in the EIR that was provided 25 to me, do you have some explanation as to what happened Sunbelt Reporting & Litigation Services Austin, Bryan/Colleg Station, Corpus Christi, Dallas/Fort Worth, East Texas, Houston, San Antonio

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# ( 1 to it? 2 

### MR. ARCHIER: Can I interject? And I'm not 3 trying to tell the witness how to answer, but maybe we 4 can resolve this problem by going off the record for a 5 minute.
6 

### MR. DWORKIN: Sure.
7 

### THE REPORTER: Off the record. 8 

### (Off the record 9:36a.m. to 9:42a.m.) 9 

### Q (By Mr. Dworkin) I take it because Martinaire 10 does carry HAZMAT, your office has considerable dealings 11 with them; is that correct? 12 

### A I have some dealings with them, yes. 

# ( 13 

### Q How would you consider the relationship between 14 your office and Martinaire? Is it a cooperative working 15 relationship? 16 

### A I would say it has been. 17 

### Q When you've expressed concerns, they have 18 responded to those concerns; have they not? 19 A 

### In the past, they have, yes. 20 

### Q And very positively? 21 A 

### Yes. 22 

### Q 

### They have sought compliance, correct? 23 A 

### Yes. 24 

### Q Now, you mentioned some prior cases. What prior 

# ( 25 cases were there? Sunbelt Reporting & 

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# ( A Out of

-- 1 2 

### Q Prior HAZMAT cases. 3 A 

### Okay. Within the last five years -- 4 

### Q Yes. 5 

### A

-- we had a letter

-- a case that was closed 6 administratively following an inspection that I completed 7 also involving 175.33 of 49 

### CFR, and a case out of
8 

### Northwest Mountain. 9 

### (Klimas Exhibit 5 

### was marked.) 10 

### Q (By Mr. Dworkin) I'm showing you what's been 11 

### marked as Klimas Exhibit 5. 

### What is that? 12 A 

### Letter of investigation following my inspection 

# (_ 13 in 2009. 14 

### Q Is that the case you were talking about? 15 

### A The case, yes, sir. 16 

### Q Okay. And that was closed with an 17 administrative action; is that correct? 18 

### A 

### Yes, sir. 19 

### Q So in other words, there was no legal finding of 20 violation; is that correct? 21 

### A There was a violation and they

-- the corrective 22 action was such that we deemed it to be closed with a 23 letter of warning. 24 

### Q Okay. And

-- but a letter of warning is not a 25 legal finding of violation, is it? Sunbelt Reporting & 

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# ( 1 A 

### A letter of warning

-- there was a violation. 2 It just was not closed with a civil penalty.
3 

### Q Is there some FA document which talks about the 4 

### legal force or effect of a warning letter? 5 

### A Not that I can site off the top of my head. I'm 6 aware of one, yes. 7 

### Q And what does that FA document say as to the 8 legal force or effect of a warning letter?
9 A 

### That it

-- that a warning letter is provided 10 when corrective actions are such that administrative 11 closure is deemed to be the best method to complete the 12 case. 

# ( 13 

### Q Is there, to your knowledge, an FA document that 14 basically states that a letter of warning does not 15 constitute a legal finding of violation? 16 (A brief interruption occurred.) 17 

### A 

### A violation was found, but we opted to close it 18 with a letter of warning 19 

### Q (By Mr. Dworkin) That's not

-- 20 

### A

-- administratively. 21 

### Q That's not the question. 22 Is there some FA document that talks about 23 the legal force or effect of a letter of warning, to your 24 knowledge? 25 

### A I'm not aware of one. I can't Sunbelt Reporting & 

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### Page 29 ORAL DEPOSITION OF PAUL DANIEL KLIMAS 

# ( 1 Q 

### Okay.
2 A 

### Yes, 

### sir.
3 

### (Klimas Exhibit 6 was marked.)
4 Q 

### (By Mr. Dworkin) I'm showing you what's been 5 marked as Exhibit 6. 6 Is that the other NOPC case you were 7 referring to, 

### the order assessing civil penalty from 8 Northwest Mountain Region?
9 A 

### Yes, 

### sir, it is. 10 Q 

### And in that case, 

### Martinaire had

-- the FA had 11 proposed a civil penalty of $32,400. Martinaire settled 12 it for $20,000; 

### is that correct? 

# ( 13 A 

### Yes, 

### sir. 14 

### Q And could you go to the third page of that 15 exhibit. And the second-to-the-last paragraph, if you 16 could read the first sentence of that paragraph, 17 beginning with, 11

### Martinaire's payment. 11 18 A 

### Yes, 

### sir. 19 11

### Martinaire's payment of civil penalty 20 pursuant to this Order does not constitute or imply 21 admissions by Martinaire that it committed the violations 22 found by the FAA, or that Martinaire agrees with the 23 facts averred by the FAA. However, Martinaire 24 acknowledges that this Order constitutes a finding by the 25 FAA of the facts or regulatory violations contained Sunbelt Reporting & 

### Litigation Services Austin, Bryan/Colleg Station, Corpus Christi, Dallas/Fort Worth, East Texas, Houston, San Antonio

### Page 30 ORAL DEPOSITION OF PAUL DANIEL KLIMAS 

## ( 1 herein. 11 

### 2 Q And there was -- I believe you referred to a 3 third case; is that correct? 4 A As I recall, that was outside of the five-year 5 search, but I believe it was within seven years. 6 (Klimas Exhibit 7 was marked.) 7 Q (By Mr. Dworkin) Well, the only other case that 8 I have in checking Martinaire's rap sheet, so to speak, 9 is what I've handed you as Exhibit 7, and that is the 10 Purple Power case? 11 A This occurred roughly the

-- in my world, 12 roughly the same time that our inspection took place, 

# ( 13 within a two-month period. 14 Q 

### Okay. And so -- · 15 A So it hadn't been closed at the time that I had 16 completed the EIR. 17 Q 

### Okay. 18 A That's why that wasn't included. But, yes, I do 19 recall learning of this, but it hadn't been closed at the 20 time. 21 Q 

### And this is not a NOPC case? 22 A Right, but I was aware of the hazardous 23 materials issue, yes. 24 Q 

### In determining your recommendation or making 

# ( 25 your recommendations as to what should be done with Sunbelt Reporting & 

### Litigation Services Austin, Bryan/Colleg Station, Corpus Christi, Dallas/Fort Worth, East Texas, Houston, San Antonio

### Page 31 ORAL DEPOSITION OF PAUL DANIEL KLIMAS 

# ( 1 Martinaire as a result of this case, did you consider 2 this Great Lakes region case?
3 

### A It was another hazardous materials case, but, 4 no, it did not influence

-- it was just another 5 violation, but, no, because it had not been closed at the 6 time.
7 

### Q Okay. So all we have is the administrative 8 action from 2009 and the prior Northwest Mountain case 9 A 

### Yes, sir. 10 Q

-- to your knowledge? 11 A 

### Yes, sir. 12 Q So two cases? 

# ( 13 A 

### Right. Because this one had not been closed at 14 the time. 15 MR. DWORKIN: Okay. Let me just take a 16 five-minute break. 17 (Recess from 9:52a.m. to 9:58a.m.) 18 MR. DWORKIN: One of the things I learned 19 in law school was when to speak and when to shut up. And 20 I've got no further questions, so we're done. Thank you. 21 THE WITNESS: Thank you. 22 MR. ARCHIER: One of the things I learned 23 from my mom is when to speak and when to shut up. I have 24 no questions either. 25 THE REPORTER: Off the record 9:59 a.m. Sunbelt Reporting & 

### Litigation Services Austin, Bryan/Colleg Station, Corpus Christi, Dallas/Fort Worth, East Texas, Houston, San Antonio

# (



# c Page 32 ORAL DEPOSITION OF PAUL DANIEL KLIMAS 1 CHANGES AND SIGNATURE 2 PAGE/LINE CHANGE REASON
3
4
5
6
7
8 9 

### 10 11 12 13 14 15 16 

### 17 18 19 

### 20 I, PAUL DANIEL KLIMAS, have read the foregoing 21 deposition and hereby affix my signature that same is 22 true and correct,except as noted herein. 23
24 25 

### PAUL DANIEL KLIMAS JOB NUMBER 108773 Sunbelt Reporting & 

### Litigation Services Austin, Bryan/Colleg Station, Corpus Christi, Dallas/Fort Worth, East Texas, Houston, San Antonio

# (

( 1 2
3 

### 4 5 

### 6 7 8 9 

### 10
11 

### 12 ORAL DEPOSITION OF PAUL DANIEL KLIMAS UNITED STATES OF AMERICA DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, D.C. In the Matter of: § § 

### FAA Case No. § 

### 2011SW700189 Page 33

§ 

### FDMS No. FAA-2013-0040 § § 

### Judge: Honorable MARTINAIRE AVIATION, LLC § 

### Richard C. Goodwin

REPORTER'S CERTIFICATION ORAL DEPOSITION OF

PAUL DANIEL KLIMAS May 17, 2013
I, Jana K. Richter, Certified Shorthand Reporter 13 in and for the State of Texas, hereby certify to the 14 following: 15 That the witness, PAUL DANIEL KLIMAS, was duly 16 sworn by the officer and that the transcript of the oral 17 deposition is a true record of the testimony given by the 18 witness; 19 I further certify that pursuant to FRCP Rule 20 30(f) (1) that the signature of the deponent: 21 

### X was requested by the deponent or a party 22 before the completion of the deposition and returned 23 within 30 days from date of receipt of the transcript. 24 If returned, the attached Changes and Signature Page 25 contains any changes and the reasons therefor: Sunbelt Reporting & 

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# (



# ( Page 34 ORAL DEPOSITION OF PAUL DANIEL KLIMAS
1 

### was not requested by the deponent or a 2 party before the completion of the deposition.
3 

### 4 I further certify that I am neither attorney nor 5 counsel for, related to, nor employed by any of the 6 parties to the action in which this proceeding was taken. 7 Further, I am not a relative or employee of any attorney 8 or record in this cause, nor am I financially or 9 otherwise interested the outcome of the action. 10 Subscribed and sworn to on this the 23rd day of 11 May, 2013. 12 13 14 15 16 Jana K. Richter, Expiration Date: Texas CSR No. 3693 12/31/13 17 18 19 20 21 22 23 24 Firm Registration Sunbelt Reporting 1-800-666-0762 No. 301 & 

### Litigation Services

25 JOB NUMBER 108773 Sunbelt Reporting 

### & Litigation Services Austin, Bryan/Colleg Station, Corpus Christi, Dallas/Fort Worth, East Texas, Houston, San Antonio

### Page 1 ORAL DEPOSITION OF PAUL DANIEL KLIMAS 

## ( A affect 7:6 aside 10:18 beginning 29:17 28:12,29:6 affirmative 6:16 assertion 9:5 believe 10:7 29:10, 30:3 ability 7:6 affix 32:21 assessing 4: 16 10:13, 14:21 30:7,30:10 above-styled agrees 29:22 4:18,29:7 15:5, 16:14 30:21,31:1

1:17 aircraft 8:20 Assistant 18:21 16:19, 16:21 31:2,31:3,31:8 acceptance 8:20, 9:2, 9:13 ASSOCIATES 17:7, 19:11 33:4

13:23 13:23 2:5 19:15,21:20 cases 26:24 access 9:17 Airlines 10:23 ASW-7 2:12 23:11, 23:16 26:25,27:2 accompanied 10:23, 11:1 attached 1:24 23:23, 30:2 31:12

13:1 11:8, 11:10 18:14,23:21 30:5 cause 1:17,34:8 accurate 8:21 11:18, 11:19 33:24 believed 19: 18 central 19:1 acknowledges 12:9 attachments 4:9 19:25,20:4 Certification

29:24 Airport 13:20 18:13, 23:22 best 5:24, 6:2 3:6,33:9 acquired 12:4 Alan 2:17,4:11 23:23' 23:24 15:1,28:11 Certified 33:12 acted 17:16 4:14, 4:15 23:25,24:10 block 19:20 certify 33:13 action 16:7 Alford 18:22 24:15,24:17 19:21, 22:6 33:19, 34:4

16:17, 17:11 18:24, 18:25 24:21, 24:22 booklet 5:20 CFR 8:11,27:7 20:6, 27:17 19:2 25:1, 25:7 Boulevard 1:21 CHANGE 32:2 27:22,31:8 Amended 4:3 25:12 2:13 changes 3:5 34:6,34:9 AMERICA 1:1 attempting 6:22 box 20:2 5:21, 5:25, 7:22 actions 1 7:22 33:1 attorney 2:3 break 31:16 16:19, 16:22 28:10 American 10:23 7:15,22:9,34:4 brief 28:16 17:6, 24:3, 32:1 actual 23:9 10:25,11:1 34:7 bring 8:4 33:24, 33:25 Addison 13:4 11:2, 11:10 ATTORNEYS brings 15:8 checking 30:8

13:12, 13:15 11: 18, 11 :25 2:9 Bryan 4:12 Chief 18:22 14:5, 14:6 12:5, 12:8 August 23: 14 23:8 circulars 10: 1 0 14:20 amount 17:19 24:11, 24:16 Buchanan 4:12 civil 1:22, 4:16 addition 9:11 answer 5:24, 6:2 available 9:22 5:10,23:8 4:18,28:2,29:7

10:10, 13:15 6:8, 22:14 9:25 29:11,29:19 adequate 16:5 22:16, 22:18 averred 29:23 

# c class 8:23

16:8 22:25,26:3 Aviation 1:6 close 28:17 ADMINISTRA

... answers 6:.12 2:3, 2:9, 2:11 California 2:5 closed 27:5

2:9,2:11 6:15,6:16 4:3,33:6 2:6 27:16,27:22 administrative appear 14:3 aware 10:13 capable 6:6 28:2, 30:15

27:17,28:10 Appearances 28:6,28:25 caring 11:1 30:19,31:5 31:7 3:3 30:22 carried 8: 19 31:13 administratively appears 7: 18 carriers 1 0: 19 closure 28:11 27:6,28:20 Archier 2: 10 

### B 10:22 CLR 1:19 admissions 4:8, 7:15, 18:12 carry 26:10 CMRS 1:19

29:21 22:7, 22:15 back 7:11 case 1:4, 6:22 come 9:14 admitted 15: 12 22:19,22:22 based 12:3 7:18, 8:7, 9:6 24:10,24:15 admonition 23:2,23:5,26:2 basically 15: 18 10:16,11:11 24:17

7:10 31:22 28:14 11:18, 11:24 comes 7:11 adopted 24:4 Archier's 18:20 basis 12:21 12:16, 15:9 command 8:8 adversely 7:6 argument 15: 15 bears 19:10 27:5,27:7 8:21, 9:3, 9:7 

# ( advisory 10:10 Arlington 1:21 Becky 2:11 27:14, 27:15 10:11, 12:20


### Sunbelt Reporting 

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### Page 2 ORAL DEPOSITION OF PAUL DANIEL KLIMAS 

# ( comment 5:25 contained 29:25 

### D 22:15,22:18 25:3,25:5 committed 8:17 contains 33:25 directly 22: 10 25:10,25:14

29:21 cooperative D.C 1:2,33:2 director 19:1 25:18,25:18 communicate 26:14 Daniel 1:10 disagree 23: 19 25:24, 30:16

11:19 correct 7:18, 8:1 1:15,4:6,5:1 discuss 17: 1 either 31 :24 communicated 8:1,8:11,8:15 32:20, 32:24 dispatch 11 :20 elects 15:3

11:14, 11:15 8:24, 10:16 33:10, 33:15 12:13, 12:17 emergency 9:12 company 11:21 11:6, 11:12 date 17:4, 33:23 12:19 9:15,9:18, 9:21 complete 28:11 12:17, 13:2 34:16 dispatcher 9:22, 10:1 completed 17:7 14:25, 15:4 dated 4:7, 4:11 11:13,11:14 10:12

27:6, 30:16 15:17, 16:12 4:13,4:14,4:16 11:15 employed 34:5 completion 17:25,18:5 4:18, 18:20 Division 20:10 employee 34:7

33:22, 34:2 19:8, 19:18 23:14 document 19:7 enacted 16:19 compliance 20:11,21:3 David 18:21 22:8, 28:3, 28:7 ended 24:11

13:11, 13:22 21:4,22:22 day 13:17, 14:22 28:13,28:22 Enforcement 14:3, 14:11 23:2,23:5, 23:9 15:8,34:10 documents 4:5 18:2, 19:6 14:13, 14:16 23:14,23:23 days 33:23 7:17, 8:4, 8:8 20:21, 22:21 14:18,21:7 24:5,26:11 dealings 26:10 25:2 engagement 21:9,21:12 26:22, 27:17 26:12 Donnell 18:21 5:16 26:22 27:20, 29:12 Decision 20:22 drugs 7:5 entity 11 :25 comprehensive

... 30:3 22:21 duly 1:16,5:2 12:4

22:2 correct,except deemed 27:22 33:15 essence 12:20 concern 16:2 32:22 28:11 Dworkin 2:4 essentially 24:8

17:20 corrections 5:22 deficient 15:13 2:5, 3:4, 4:8, 5:5 event 9:12 

# ( concerning 8:22 6:1 15:16 7:14, 18:8 12:13 10:19 corrective 16:7 DEPARTMENT 22:13, 22:17 Examination concerns 26: 17 16:16, 17:11 1:1,33:1 22:20, 22:23 3:4,5:3

26:18 17:21, 27:21 deponent 33:20 23:3, 23:6 example 10:4 conduct 13:16 28:10 33:21, 34:1 24:24,26:6 10:25 conducted counsel 2:12 deposed 7:7 26:9,27:10 exhibit 4:1, 5:4

12:24 18:22, 34:5 deposition 1: 1 0 28:19, 29:4 7:13, 7:16, 7:17 conference 5: 18 court 5:19, 6:5 1:15,4:4, 5:9 30:7,31:15 18:7, 18:10 connection 6:21 6:5 5:12, 6:25, 7:2 31:18 24:23, 24:25

8:3 cover 18:11 8:3, 32:21, 33:9 25:10,27:9 consider 21:5 18:12 33:17, 33:22 

### E 27:11, 29:3

21:21,26:13 crew 11:2, 11:4 34:2 29:5, 29:15 31:1 11:6, 11:19 Description 4:2 early 14:22 30:6,30:9 considerable 12:1, 12:4, 12:7 determining East 1:21 expect 8:17

26:10 12:8, 12:12 21:17,30:24 EDP 22:24 Expiration considered CSR 1:19,34:16 DFW 13:20 effect 10:3, 28:4 34:16

21:11,21:17 current 7:20 13:21, 13:25 28:8,28:23 explanation consisted 24:1 

## cv 7:15, 7:18 14:2, 14:22 effort 17:19 25:25 constitute 28:15 7:20 dialogue 6:25 EIR 17:25, 18:2 expressed 16:1

29:20 difficulties 18:13, 18:14 26:17 constitutes 15:10 18:17, 20:16 

# c 29:24 directing 22:13 24:12, 24:18


### Sunbelt Reporting 

### & Litigation Services Austin, Bryan/Colleg Station, Corpus Christi, Dallas/Fort Worth, East Texas, Houston, San Antonio

### Page 3 ORAL DEPOSITION OF PAUL DANIEL KLIMAS 

# ( F first 4:3, 5:2 15:25, 19:5 HEARINGS 1:2 index 3:1,4:1 7:12, 18:19 20:18,29:14 33:2 25:7 FA 21:23,28:3 29:16 goes 5:25, 20:2 hereto 1:24 influence 7:5

28:7,28:13 five 21:15,27:3 22:10, 23:3 history 21:7 31:4 28:22,29:10 five-minute going 7:9, 18:19 21:9,21:12 information FA's 23:6 31:16 22:7,26:4 HMR 19:17 8:22, 9:18 FAA 1:4,7:17 five-year 30:4 GOM 24:3 HMRs 14:18 11:20, 11:20

8:14, 9:6, 9:24 fixed 24:8 good 5:6, 5:7 19:25 12:3, 12:12 10:9, 12:25 flight 9:16, 11:1 15:6 Holmes 2:11 12:17, 20:21 18:20, 29:22 11:2, 11:4, 11:6 Goodwin 1:6 Honorable 1:6 22:6 29:23, 29:25 11:19, 12:1 33:6 33:6 input 17:9 33:4 12:4, 12:7, 12:8 Government hope 12:11 Inquisition 6: 19 FAA-2013-0040 12:12 7:16 Huerta 18:23 inserted 23: 1

1:5,33:5 followed 24:9 Great 31:2 huh-uh 6:14 inspect 10:19 facilities 13: 16 following 16:10 gripes 1 7: 19 inspection 13: 1 facility 13:2 27:6, 27:12 ground 9:17 

### I 13:7, 13:15

13:4 33:14 guess 20:9 13:16, 13:25 Facsimile 2:7 follows 5:2 guts 12:21 identical 6: 14 14:20, 15:24

2:14 force 28:4, 28:8 identification 16:10, 16:14 fact 14:15 28:23 

### H 8:23 16:21, 17:1

16:10, 16:16 foregoing 32:20 identified 7: 16 27:6,27:12 25:18 form 5:20 half 25:11 II 20:18, 20:25 30:12 Factor 20:19 16:12, 17:3 25:13 III 20:20, 20:25 inspector 10:15 factors 21 :5 17:6,24:4 handbooks 10:9 22:6 17:24,23:8 

# ( 21:16 Fort 2:13 handed 5:8 immediacy instance 1 :16 facts 6:21, 29:23 found 28:17 18:9, 30:9 21:25 instantaneous

29:25 29:22 handing 18:8 immediately 16:17 fair 14:15 four 20:19 happened 25:25 24:4 instructing familiar 8: 14 Francisco 2:6 harass 6:22 imply 29:20 22:25 FDMS 1:5,33:5 FRCP 33:19 hazard 8:22 important 5:23 interested 34:9 Fed-Ex 10:4 front 23:16 hazardous 8:10 6:11,6:15 interject 26:2 Federal 1:22 full-based 13:7 8:13, 8:14, 8:19 inch 25:11 International

2:9,2:11 fully 17:17 10:14, 11:1 25:13 13:20 felt 21:13 further 31 :20 12:25, 14:8 inch-and-a-half interruption fessed 15:18 33:19, 34:4 22:24, 30:22 25:14 28:16 filed 7:17 34:7 31:3 incident 9:12 investigating financially 34:8 HAZMAT 13:7 9:16, 10:5 10:15, 17:24 find 16:1 

### G 13:10, 13:10 incidents 21: 13 23:7 finding 27:19 14:10, 14:16 include 24:21 investigation

27:25, 28:15 Gary 20:13 14:24, 24:3 included 24:1 19:6,23:7 29:24 gather 6:21 25:20, 26:10 24:20, 25:2 27:12 findings 14:19 general 24:2 27:2 25:4,25:14 Investigative

15:21, 16:2 give 5:24, 6:2 head 6:12, 28:5 25:16,25:23 18:3 17:16,21:23 7:9 headquarters 30:18 involves 8:7 finish 6:8 given 33:17 20:10 including 24:22 involving 9:13 

# (__ Firm 34:17 go 5:15,7:12 hearing 5:25 incomplete 20: 1 9:16,27:7


### Sunbelt Reporting 

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### Page 4 ORAL DEPOSITION OF PAUL DANIEL KLIMAS 

## ( issue 30:23 

### L 18:13 Marty 18:22 nature 21:18 issues 10:20 looking 13:9 material 8:19 negative 6:17 item 11:22 Lakes 31:2 13:10, 13:21 8:23, 13:1 neither 34:4

11:23, 12:13 Lamar 1:21 14:6, 25:10 22:10, 22:11 New 10:7 items 20:25 law 31:19 25:11 22:24 nod 6:12

25:9 learned 31:18 materials 8:10 NOPC 9:7, 9:8 IV 20:21, 20:25 31:22 

### M 8:13, 8:15 9:10,9:14,9:18

22:18 learning 30:19 10:14, 11:1 9:21, 10:1 legal 27:19 machine 1:20 14:8,30:23 10:10, 10:20 

### J 27:25,28:4 maintain 6:24 31:3 11:2, 11:4, 11:5 28:8,28:15 making 13:24 matter 1:3, 5:25 11:12, 11:13 James 2:10, 4:8 28:23 30:24 14:15, 16:10 11:25, 16:12 Jana 1:18,33:12 legible 8:21 manual 24:2 16:16, 33:3 17:3, 24:4, 29:6

34:16 letter 4:7, 4:9 marked 4:2, 5:4 Meacham 2:13 30:21 JOB 32:25 4:11,4:12,4:14 5:8, 7:13, 18:7 medication 7:6 NOPCs 13:9

34:25 15:25, 16:13 18:9,24:23 meeting 16:24 14:7,14:17 Judge 1:6, 33:6 18:11, 18:12 24:25, 27:9 17:2 15:9, 15:16 July 12:24 18:15, 18:20 27:11,29:3 memorandum 20:1

16:11, 16:21 23:6,23:14 29:5,30:6 18:20, 19:2 Northwest 27:8 16:22, 16:23 23:18, 23:21 Martinaire 1:6 memory 7:12 29:8, 31:8 16:25, 17:2 23:22, 24:11 2:3, 4:3, 10:18 8:18 noted 32:22 23:11 24:16, 24:17 13:16, 14:3 mentioned notice 4:4, 5:9 

# ( June 4:7,4:11 24:20,25:1 14:24, 15:3 26:24 10:11, 12:20 4:16 25:12, 25:23 15:12, 15:15 met 16:23 notification 9:6 27:5, 27:12 15:22, 15:24 method 28:11 12:22, 13:22 

### K 27:23, 27:24 16:1, 16:11 Michael 2:4, 2:5 notifications 8:7 28:1, 28:4, 28:8 16:17, 17:3 3:4, 4:7, 5:5 number 4:2 Klimas 1:10 28:9,28:14 17:12, 17:22 mind 7:10 8:23, 23:21

1:15,4:6,4:13 28:18, 28:23 19:18, 19:25 19:19,21:10 23:24, 32:25 4:15, 5:1, 5:4 level 16:2 23:13,23:18 24:13 34:25 5:6, 5:8, 7:13 likewise 6: 10 24:8,26:9 minute 26:5 numbered 1:17 7:16, 18:7, 18:8 6:13, 11:8 26:14, 29:10 mom 31:23 Numeral 20:18 18:9, 24:23 20:20, 22:17 29:11, 29:21 months 14:24 20:20, 20:21 24:25,27:9 22:23 29:22, 29:23 15:3, 15:3 22:6,22:17 27:11,29:3 limitations 6:4 31:1,33:6 Moore 20:13 30:6, 32:20 listed 7:25 Martinaire's Moore's 20:15 

### 0 32:24,33:10 Litigation 34:17 4:9,11:11 morning 5:6 33:15 LLC 1:6,2:3 12:16, 13:2 5:7 o'clock 14:22 know 7:11 33:6 14:23, 16:4 Mountain 27:8 object 22:7 knowledge 9:25 LLC's 4:3 21:8,21:11 29:8,31:8 objective 6:20

28:13, 28:24 loading 13:23 21:21,21:25 6:21 31:10 LOI 23:9, 23:9 22:2,24:2 

### N observed 14:2 known 9:7 23:10, 23:13 24:11, 24:15 occurred 10:6

17:25 long 10:3, 13:25 24:17,25:1 N-0-P-C 9:7 17:1,28:16 14:20 25:12,29:17 name 8:22 30:11 look 6:14, 14:9 29:19, 30:8 10:23 office 1:2, 1:20


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## ( 2:12, 11:3, 19:1 29:24 pilot 8:8, 8:21 24:3,24:9 reasons 33:25 26:10,26:14 orders 10:9 9:2, 9:6, 10:11 25:20 recall 14:1, 14:9 33:2 organizations 11:11, 11:16 proof 25:9 14:21, 15:1 officer 33:16 12:5 12:16, 12:20 proposed 29:11 17:4, 17:10 oh 25:11 outcome 34:9 12:20, 13:22 protection 17:14,23:24 Okay 5:12, 5:15 outside 30:4 piloted 12:9 22:11 24:6, 24:19

6:8, 6:17, 6:24 place 16:22 protective 22: 11 24:22,30:4 7:5, 7:14, 7:20 

### p 30:12 22:12 30:19 7:22, 7:25, 8:7 PLAINTIFF provide 8:21 receipt 33:23 8:13,8:17,9:1 page 3:2, 4:2 1:16 9:2, 17:9 received 25:22 9:5, 9:10, 9:14 18:19, 19:6 play 9:15, 17:5 provided 7:15 Recess 31 :17 9:20, 9:24, 10:9 19:10,20:3 please 6:7 25:24, 28:9 recommendation 11:5, 11:8 20:9,22:24 positively 26:20 provides 12:12 30:24 11:10, 11:18 29:14,33:24 possibly 24:14 providing 12:17 recommendati... 11:24, 12:19 PAGE/LINE Power 30:10 provisions 1:23 20:6,30:25 13:21, 13:25 32:2 practice 10:2 19:24, 24:2 record 1:23 14:2, 14:23 pages 20:19 10:3 publicly 9:25 5:18, 26:4, 26:7 15:12, 16:16 23:3 prepare 11 :2 Purple 30:10 26:8,31:25 16:21, 16:24 paragraph 19:4, 19:20 purpose 16:24 33:17,34:8 17:2, 17:5 20:18,29:15 prepared 7:23 purposes 9:8 records 14:8 18:19, 19:5 29:16 11:5, 11:25 9:8, 9:10, 10:1 14:10 19:15, 20:3 part 25:7, 25:22 17:25, 18:17 pursuant 1:22 redact 19:11 

# ( 20:25,21:16 parties 34:6 19:2, 19:3, 19:7 29:20,33:19 redacted 20:7 22:13, 23:11 party 33:21 19:16, 19:20 put 19:17, 19:21 22:8,22:8 23:13, 23:25 34:2 19:22, 20:16 21:1,22:5 22:10 25:6, 25:8, 27:3 Paul 1:10, 1:15 prepares 11: 12 22:20 redaction 19:10 27:16, 27:24 4:6, 4:13, 4:15 12:19 19:21, 20:4 29:1,30:14 5:1,32:20 preparing 12:21 

## Q redactions 30:17,31:7 32:24, 33:10 PRESENT 2:16 20:22, 20:24 31:15 33:15 presume 19:16 question 6:8 22:9 one-third 25: 15 payment 29:17 prior 7:17 19:19,22:8 referenced operating 13:24 29:19 26:24, 26:24 22:16, 22:19 23:22

24:2 penalty 4: 16 27:2,31:8 24:13,28:21 referred 30:2 operation 14:9· 4:18,28:2, 29:7 probably 14:21 questions 5:5 referring 29:7

14:13 29:11, 29:19 problem 24:8 22:25, 31 :20 regarding 22:25 operator 8:20 perform 20:24 26:4 31:24 region 2:12

9:1 performed Procedure 1:23 quickly 16:19 29:8, 31:2 opinions 9:24 15:24, 16:14 procedures 9:12 quite 6:6 regional 2:12 opportunity performs 14:24 9:19, 9:21, 9:22 20:9,20:10

5:20 period 30:13 10:12, 13:23 

### R Registration opted 28:17 person 6:7, 12:9 proceeding 34:6 34:17 oral 1:10, 1:15 personally 15:7 produced 1:15 rap 30:8 regulation 8:18

33:9,33:16 pertinent 19:17 Production 4:5 read 29:16 8:19, 9:1, 19:11 order 4:16,4:18 24:1 professional 32:20 regulations 8:10

22:11, 22:12 physically 11 :11 6:24 reason 7:2 8:15, 15:2 29:7, 29:20 pile 25:14 program 13:10 19:25,32:2 19:15, 20:4


### Sunbelt Reporting 

### & Litigation Services Austin, Bryan/Colleg Station, Corpus Christi, Dallas/Fort Worth, East Texas, Houston, San Antonio

### Page 6 ORAL DEPOSITION OF PAUL DANIEL KLIMAS 

# ( regulatory 9:21, 9:22, 10:1 

# s 33:20, 33:24 Southwest 2:12 29:25 10:12, 15:21 signed 23:9 Spanish 6:19 Regus 1:20 16:4, 16:13 safely 13:24 23:10 speak 5:16, 30:8 reject 11:23 21:21,21:25 sample 15:9 significant 31:19,31:23 rejected 12:14 22:3, 23:6 San 2:6 21:13 specialist 8:13 related 34:5 24:16,24:20 sanction 20:6 similar 21 :14 10:15 relationship 25:1,25:12 20:20,21:6 simply 6:21 specialists 13: 1

26:13, 26:15 25:23 21:17 sir 5:14, 6:9 specific 21:10 relative 34:7 responsible satisfied 24:7 6:18, 7:1, 7:4 specifically 9: 14 relatively 16:17 17:17 saw 14:17 7:8, 7:24, 8:2 21:8,21:12 remember 7:11 responsiveness saying 6:7 8:5, 8:12, 8:25 spoke 9:11 removed 11 :22 17:21 says 9:1 9:4, 9:9, 10:17 stands 18:2

12:13 restating 19:19 school 31:19 11:7, 11:9 start 6:8 rephrasing result 31:1 search 30:5 11:13,11:17 started 14:22

24:13 Resume 4:6 second-to-the-1... 12:2, 12:6 state 1:19, 9:20 report 18:3 Retraining 29:15 12:10, 12:15 9:25, 10:10

19:6, 19:16 15:23 Section 8:9 12:18, 12:23 33:13 19:22, 21:3 returned 33:22 20:16,20:19 13:3, 13:6, 13:8 stated 1:23 22:21, 23:1 33:24 sections 8:10 13:14, 13:18 states 1:1,28:14 reported 1:20 review 5:21 19:17 14:4, 14:12 33:1

5:19 20:10 see 7:9 14:14, 15:11 step 6:10 reporter 5: 19 reviews 11:4 seen 5: 1 0, 1 7: 12 15:14, 15:20 stores 14:9 6:5, 6:5, 26:7 revised 16: 11 sent 24:19,25:4 16:3, 16:6, 16:9 14:13 31:25,33:12 17:3,24:4 sentence 29:16 16:13, 16:20 Street 2:5 

# ( Reporter's 3:6 Richard 1:6 September 18:1, 18:4, 18:6 submitted 25: 16 33:9 33:6 18:21 18:16, 18:18 Subscribed Reporting 34:17 Richter 1 :19 seriously 17:16 19:9, 19:12 34:10 represent 24:24 33:12,34:16 serve 9:10 19:14, 19:23 sufficient 16:2 represented right 8:5; 15:19 serves 9:7, 9:8 20:8, 20:12 Suite 1:21, 2:5

25:17 23:16,23:22 Services 34:17 20:14,20:17 2:13 represents 25:19, 30:22 serving 10:11 20:24,21:2 Suites 1:21

18:12 31:13 settled 29:11 21:20,23:12 Sunbelt 34:17 reprint 25:19 role 17:5 seven 30:5 23:20, 24:6 supervisor Request 4:4 Roman 20:18 shake 6:12 27:15,27:18 18:23 requested 33:21 20:20, 20:21 sheet 30:8 29:2,29:9 sure 10:7, 13:24

34:1 22:6,22:17 shipping 8:22 29:13,29:18 26:6 require 15:2 room 5:18 shorthand 1:20 31:9,31:11 survey 10: 19 required 8:9 roughly 30:11 33:12 sit 17:15 sworn 1:16,5:2 resolve 26:4 30:12 show 6:13 site 28:5 33:16,34:10 respect 14:2

. routinely 10:19 showing 27:10 sitting 5:24 system 6:5

14:16, 17:20 RSA 1:19 29:4 slipped 7: 10 20:25 Rule 33:19 shut 31:19 somebody 9: 17 

### T responded rules 1:22, 5:15 31:23 11:3, 19:13

23:13, 26:18 Rusinowitz 2:17 sign-off 20:15 20:10, 20:23 take 6:6, 13:25 response 4: 10 4:12,4:14,4:15 signature 3:5 sorry 18:25 14:20, 17:12 

# ( 9:12,9:15,9:18 17:8, 24:11 32:1, 32:21 sought 26:22 17:13, 18:13


### Sunbelt Reporting 

### & Litigation Services Austin, Bryan/Colleg Station, Corpus Christi, Dallas/Fort Worth, East Texas, Houston, San Antonio

### (



# (

( 

# "-- Page 7 ORAL DEPOSITION OF PAUL DANIEL KLIMAS 26:9,31:15 22:21 violated 19:11 

### 1 210 2:5 taken 1:17, 5: 12 top 28:5 19:16, 19:18 23rd 34:10

7:3,34:6 total 25:22 19:25,20:5 1 4:3, 5:4, 5:8 24 4:10, 15:2 takes 11:13 training 13: 1 0 violation 21: 18 1:00 14:22 2601 2:13 talking 1 7:4 14:8, 14:10 27:20, 27:21 108773 32:25 27 4:15 27:14 14:23, 14:24 27:25,28:1 34:25 29 4:13,4:17 talks 28:3, 28:22 15:2,24:3 28:15,28:17 11th 16:22 team 14:17 transcribe 5: 19 31:5 16:23, 16:25 

### 3

17:5 transcript 5:21 violations 21:14 17:2 Telephone 2:6 6:1, 6:13, 6:14 29:21, 29:25 12 14:24, 15:3 3 4:7, 18:7

2:14 33:16, 33:23 15:9 18:10, 23:4 tell 26:3 TRANSPORT

... 

# w 12/31113 34:16 25:10 term 12:8 1:1,33:1 12:30 14:22 30 4:19,33:23 terms 12:19 true 7:25, 32:22 wait 6:7 14 4:14 30(f)(l 33:20

14:23,22:5 33:17 warning 27:23 17 1:11, 1:18 301 34:17 testified 5:2 try 6:1, 6:10 27:24, 28:1 33:10 32 3:5 testimony 33:17 trying 26:3 28:4, 28:8, 28:9 175.33 9:20 32,400 29: 11 Texas 1:20, 1:22 two 10:24,31:12 28:14,28:18 27:7 33 3:6

2:13, 13:5 two-month 28:23 175.33(a)(l 8:9 3693 34:16 33:13, 34:16 30:13 WASHINGTON 18 4:8, 4:18 Thank 31:20 Type 20:6 1:2,33:2 19:20, 19:21 

### 4

31:21 watching 13:23 1-800-666-0762 therefor 33:25 

# u went 14:5,23:11 34:18 4 4:9, 23:4 thick 25:11 witness 1 :16 19 4:7, 4:16 24:23, 24:25

25:13 uh-huh 6:13 26:3, 31:21 1999 10:7 415-421-2500 thickness 25: 15 ultimate 18:22 33:15,33:18 19th 23:11 2:6 thing 15:6, 20:5 uncomfortable words 11:24 415-421-2560 things 4:5, 7:12 6:20, 6:23 25:17, 27:19 

### 2 2:7

14:6, 24:1, 24:5 understanding working 26:14 465 2:5 31:18,31:22 8:18 Worksheet 2 3:3, 4:6, 7:13 49 8:10,27:7 think 10:4, 15:6 Understood 6:3 20:22, 22:21 7:16, 23:3

16:4, 16:7 undertook 22:24 23:14,24:11 

### 5 20:19 17:22 world 30:11 24:16 third 29:14 United 1:1 Worth 2:13 20 18:21 5 3:4,4:5, 4:11

30:3 10:23, 11:8 writings 8:4 20,000 29:12 23:4,27:9 thoroughness 11:10, 11:19 written 8:22 2000 1:21 27:11

17:21 11:25, 12:5 9:24, 23:8 2009 4:11, 4:13 time 6:7, 12:7 12:9,33:1 4:14,4:17,4:19 

### 6

12:11, 15:24 upset 6:23 

### y 27:13,31:8 16:15, 30:12 2011 12:24 6 4:16, 23:4 30:15,30:20 

# v Yeah 21:11 18:21,24:16 29:3,29:5 31:6,31:14 years 10:8 2011SW700189 600 1:21 today 7:3, 7:7 various 8:9 21:15,27:3 1:4,33:4 6E 2:13

17:15 verbalized 6:12 30:5 2012 4:7 today's 8:3 6:15, 6:16 York 10:7 2013 1:11, 1:18 Tool 20:22 verify 18:14 33:10, 34:11


### Sunbelt Reporting 

### & Litigation Services Austin, Bryan/Colleg Station, Corpus Christi, Dallas/Fort Worth, East Texas, Houston, San Antonio

# (



# (

( ' 7 7 4:6, 4:18, 30:6

30:9 76006 1:22 76137 2:13 

### 8 8 12:24, 16:21 817-222-5092

2:14 817-222-5099

2:14 8th 16:11 

### 9 9 4:11 9:01 1:18 9:36 26:8 9:42 26:8 9:52 31:17 9:58 31:17 9:59 1:18,31:25 94104 2:6 

### ORAL DEPOSITION OF PAUL DANIEL KLIMAS

Sunbelt Reporting 

### & Litigation Services Page 8

Austin, Bryan/Colleg Station, Corpus Christi, Dallas/Fort Worth, East Texas, Houston, San Antonio06/18/2013 11:43 SUNBELT**REPOR~G** PAGE 01/05

Austin 1016La PosadaDrive Suite 294 Austin, Texas 78752 512.465. 9100

Bryan/College Station 1716 BriarcrestDrive Suite 300 Bryan, Texas 77802 979

.774

.4000

CorpusChristi 711 N. Carancahua Suite700-N Corpus Cluisti, Texas 78401 361

. 882. 0763

Dallas/FortWorth 15150 Preston Suite 300 Dallas, Texas 75248 214. 747. 0763

EastTe:ms 100E. Ferguson Suite 900 Tyler, Texas 75702 903

. 593

.3213

Housto11 6575 W. Loop South Suite 580 Bellaire, Texas 77401 800,666.0763

SanAntonio 8000 IH-10 West Suite 1500 San Antonio, Texas 78230 210

.342

.0763 

# Sunbelt**Report:ip,g;Sr:~J-;i.9-gation** 

# Services

# ········~~ii';~~~~~~~- 

# ...... June 17, 2013
MichaelL. Dworkin MichaelL. Dworkin 465 CaliforniaStreet, Suite 210 San Francisco, CA 94104**Houstoii/Bellaire'[T~** 774-01 

# ·_'_**~;r/sil~bcltr;e;o~i~1;~om** 1. soo.666,o763, ,_ 

### .-<I:#Y713. 661.3838 

### >-
..:.**~**

### '· ·::··.

Re: Deposition ofPAULDANIELKLIMAS 05/1712013 IN THE MATTEROF: MARTINAIRE AVIATION, LLC
As indicatedbelow: Please be advised ofcurrent stams oftheOriginalDeposition. 

# J The attached Original Deposition, after being signed andnotarizedby the witness onthe errata/correctionpage, is being forwarded to youin accordance with theTexas/FederalRules ofCivil Procedure. ·

o The attached Original Deposition, whichwas returnedunsigned and/or notnotarized, isbeing forwarded to you in accordance withthe Texas/FederalRules ofCivilProcedure. 

# J The attached copies ofCerti:ficate(s) and/or executed andnotarizedErrata/Correction Sheet(s) are sentto youforyourfiles. Ifyouhaveany questions, please call.

o Pleasebeadvisedthatthe Original Depositionwas notreturnedwithinthe time specifiedfor unknownreasons.

o The attached Original Exhibit(s) are beingremmedwithoutthe OriginalDeposition, which was due on for unknownreasons.
'o A copy oftheCertificate is being sentto theCourtClerkfor filing oftaxable cost.

o OriginalDepositionatid OriginalExhibits arebeingreleased on
___ _, due to trial on

Sincerely,

lleana Chavez SunbeltReporting andLitigation Services No. 108773**E~CLOSED** PLEASEFIND: 

### 'If/ Original Deposition 

## -1 Original Exhibit(s) 

### ?/ Errata/CorrectionPage(s)**~Reporter's** Certificate

cc: ·James Archier 

# One CallDoesItAll!06/18/2013 11:43 SUNBELT**REPOR~G** PAGE 02/05

1 2 3
4 5 6 7
B 9 10 11 12 13 14 15 16 17 18 19 PAGE/LINE 

## iO 

# I 1( 

# t1/ 

# 1 Page 32 ORAL DEPOSITION 

### OF PAUl DANIEL KLIMAS
CHANGES AND SIGNATURE CHANGE 

### REASON

## '~_'f~lir~ 11

# b ;r

### Mi1ir u

## j)~J>:blehPtJC.It.,/,kAJ~v;t.t~r. I I ., '- \I

### vJ~ If 

## .f·o**<~ knc~** **~/;:{u '~_t.,.JI** **~v-i ~fJ_tv,**  1

### 'bdlc r 1**~**



### 20 I, PAUL DANIEL 

### KLIMAS, have ead the foregoing 21 

### 22 23
24 25 

### deposition and hereby affix my s'gnature that same is true.and correct,except as noted herein.

PAUL**DAN~EL** 

### KLIMAS 

### JOB**NUMB~R ~08773**  

### sunbelt Reporting 

### & Litigation services**Aust~,** Bryan/Colleg Station, Corpus Christi, Dallas/F rt worth, East Texas, Houston, San Antonio 

## RECE1VEO JUN Q

## 5 

## 201306/18/2013 11:43 713-.3838 SUNBELT**REPO~G**



## CERTDnCATEOFACKNOWLEDGMENT

STATE OF TEXAS COUNTY OF TARRANT

Onthis, the 30th day of May , 2013. before me, TeresaEmmons •a NotaryPublic inand for the County ofTarrant, StateofTexas duly commissioned and qualified, personally appeared Paul Daniel Klimas ,knownto me to betheperson described 

### in, orproduced appropriate identification asproofofidentity, and whose names
are subscribedtothe attached instrument, and acknowledged to me

### that he executed the instrumentfor thepurposes and considerationstherein stated.

IN WITNESS WHEREOF, I have hereunto set myhand and affixed my official seal, at my office inthe day andyear

### in this certificatefirst written above.

NotaryPublic (Signature)



## -**~** 

# e ·. TER£SAEMMONS MjGommlplan**~** •. . l OctObtr ,•• 2018'

### ~ I 

## -"""'" ,... 

# --**~ECE\VEO** JUN 0 5 2013 PAGE 03/0506/18/2013 11:43 713-lllf3838 SUNBELT**REPO~G** PAGE 04/05 

### Page 33

1 2
3 

### 4
5
6 7 8 9 

### 10 11 ORAL DEPOSITION OF PAUL DANIEL KLIMAS UNITED STATES OF AMERICA DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, D.C. In the Matter of:

MARTINAIRE AVIATION, LLC § § 

### FAA Case No. § 

### 2011SW700189 § 

### FDMS No. FAA-2013-0040 § § 

### Judge: Honorable § 

### Richard C. Goodwin

REPORTER'S CERTIFICATION 

### ORAL DEPOSITION OF

PAUL DANIEL KLIMAS May 17, 2013

12 I, Jana K. Richter, Certified Shorthand Reporter 13 in and for the State of Texas, hereby certify to the 14 following: 15 That the witness, PAUL DANIEL KLIMAS, was duly 16 sworn by the officer and that the transcript of the oral 17 deposition is a true record of the testimony given by the 18 witness; 19 I further certify that pursuant to FRCP Rule 20 30(f) (1) that the signature of the deponent: 21 

### X was requested by the deponent or a party 22 before the completion of the deposition and returned 23 within 30 days from date of receipt of the transcript. 24 If returned, the attached Changes and Signature Page 25 contains any changes and the reasons therefor: Sunbelt Reporting & 

### Litigation Services Austin, Bryan/Colleg Station, Corpus Christi, Dallas/Fort Worth, East Texas, Houston, San Antonio05/18/2013 11:43 SUNBELT REP0411tG PAGE 05/05


### Page 34 ORAL DEPOSITION OF PAUL DANIEL KLIMAS
1 

### was not requested by the deponent·or a 2 

### party before the completion of the deposition.
3 

### 4 I further certify that 

### I am neither attorney nor 5 

### counsel for, related to, nor employed by any of the 6 parties to the action in which this proceeding was taken. 7 Further, I 

### am not a relative or employee of any attorney 8 or record in this cause, nor am I 

### financially or 9 otherwise interested the outcome of the action. 10 Subscribed and sworn to 

### on this the 23rd day of
11 

### May, 2013. 12 13 

### 14 15 

### 16 Jana K. Richter, Texas CSR No. 3693 Expiration Date: 12/31/13 17 18 19 20 21 22 23 24 

### Firm Registration No. 301 Sunbelt Reporting 

### & Litigation Services 1-800-666-0762

25 JOB NUMBER 108773 Sunbelt Reporting 

### & Litigation Services Austin, Eryan/Colleg Station, Corpus Christi, Dallas/Fort Worth, East Texas, Houston, San Antonio

## EXHIBIT G Deposition ofBryan Edward Buchanan

FAA Case No. 2011SW700189 I DMS No. FAA-2013-0040
MARTINAIRE AVIATION, LLC'S RESPONSE AND OBJECTIONS TO COMPLAINANT'S MOTION FOR DECISION

# ( -.



# C .-**~.6**



### ...

''.· 1
2
3
4 

### ORAL DEPOSITION OF BRYAN EDWARD BUCHANAN UNITED STATES OF AMERICA DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, D.C. In the Matter of: § § 

### FAA Case No. § 

### 2011SW700189 Page 1

5 § 

### FDMS No. FAA-2013-0040 § 6 

### MARTINAIRE AVIATION, LLC § 

### Judge: Honorable § 

### Richard C. Goodwin 7
8
9 

### 10
11 

### 12 13 14 ************************* 

### ORAL DEPOSITION OF BRYAN EDWARD BUCHANAN May 17, 2013 ************************* 

# •**\~** CERTIFIED COPY

15 ORAL DEPOSITION OF BRYAN EDWARD BUCHANAN, produced as 16 a witness at the instance of the PLAINTIFF, and duly 17 sworn, was taken in the above-styled and numbered cause 18 on May 17, 2013 from 10:07 a.m. to 10:25 a.m., before 19 Jana K. Richter, CSR, CMRS, CLR, RSA in and for the State 20 of Texas, reported by machine shorthand, at Regus Office 21 Suites, 2000 East Lamar Boulevard, Suite 600, Arlington, 22 Texas 76006, pursuant to the Federal Rules of Civil 23 Procedure and the provisions stated on the record or 24 attached hereto. 

# :r-**-~··** 2 5 "-._ 

### Sunbelt Reporting & 

### Litigation Services Austin, Bryan/Colleg Station, Corpus Christi, Dallas/Fort Worth, East Texas, Houston, San Antonio

# (**(~**

/ 

### ORAL DEPOSITION OF BRYAN EDWARD BUCHANAN
1 

### A P P E A R A N C E S 2 

### 3 ATTORNEY FOR MARTINAIRE AVIATION, LLC: 4 

### Mr. Michael L. Dworkin 5 MICHAEL L. DWORKIN AND ASSOCIATES 465 California Street, Suite 210 6 San Francisco, California 94104 Telephone: 415-421-2500 7 Facsimile: 415-421-2560
8 9 

### ATTORNEYS FOR FEDERAL AVIATION ADMINISTRATION: 10
11 

### 12 13 14 15 16 17 18 19 20 21 22 

### 23 24 25 Mr. James Archier Ms. Becky Holmes FEDERAL AVIATION ADMINISTRATION Office of Regional Counsel Southwest Region, ASW-7 2601 Meacham Boulevard, Suite 6E Fort Worth, Texas 76137 Telephone: 817-222-5099 Facsimile: 817-222-5092

ALSO PRESENT: Mr. Alan S. Rusinowitz 

## * * * * *

Sunbelt Reporting & 

### Litigation Services Page 2

Austin, Bryan/Colleg Station, Corpus Christi, Dallas/Fort Worth, East Texas, Houston, San Antonio

### Page 3 ORAL DEPOSITION OF BRYAN EDWARD BUCHANAN 

# ( 1 

### INDEX
2 

### Page 3 Appearances. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 4 Examination by Mr. Michael L. Dworkin

................. 4 5 Changes and Signature

................................. 16 6 Reporter's Certification

.............................. 18 7 8 

## * * * * * 9 10 EXHIBIT INDEX 11 Number Description Page Marked 12 1 Resume of Bryan E. Buchanan

.................. 4 

# ( 13 14 15 16 17 18 19 20 21 22 23 24 

# ( 25 Sunbelt Reporting 

### & Litigation Services Austin, Bryan/Colleg Station, Corpus Christi, Dallas/Fort Worth, East Texas, Houston, San Antonio

### Page 4 ORAL DEPOSITION OF BRYAN EDWARD BUCHANAN 

## (_ 1 BRYAN EDWARD BUCHANAN, 2 having been first duly sworn, testified as follows: 3 EXAMINATION 4 (Buchanan Exhibit 1 was marked.) 5 QUESTIONS BY MR. MICHAEL L. DWORKIN:
6 

### Q Good morning. 7 A 

### Good morning, sir.
8 

### Q Can we get your full name and your FA position, 9 for the record? 10 A 

### Yes. Bryan Edward Buchanan, manager of 11 hazardous materials section. 12 

### Q And where is that? 

# c 13 A 

### In Fort Worth, Texas. 14 

### Q Okay. So you're the manager of hazardous 15 materials for Southwest Region? 16 A 

### I'm a section manager. I have a supervisor as 17 well. 18 

### Q Okay. And what are your principal duties and 19 responsibilities? 20 A 

### I supervise nine special agents who conduct 21 inspections in a six-state area, Texas and the states 22 that border Texas. 23 

### Q Okay. And one of those agents is inspector 24 Klimas? 25 

### A Correct.
Sunbelt Reporting 

### & Litigation Services Austin, Bryan/Colleg Station, Corpus Christi, Dallas/Fort Worth, East Texas, Houston, San Antonio

### Page 5 ORAL DEPOSITION OF BRYAN EDWARD BUCHANAN
1 

### Q I'm showing you what has been marked Klimas 2 Exhibit 1, 

### which is the notice of deposition. Have you 3 

### seen that document before? 4 A Yes. 5 

### Q Okay. And in connection with your attendance 6 here at this deposition, have you brought any writings or 7 documents with you? 8 A 

### No. 9 Q Okay. Have you ever had your deposition taken 10 before? 11 A 

### No. 12 

### Q Okay. Let's go through some of the rules of 

# ( 13 engagement. Okay? 14 A Okay. 15 

### Q This is not intend to be the Spanish 16 Inquisition. I'm not here to make you uncomfortable. If 17 you need to take a break, you take a break. 18 Although we are in a relatively informal 19 setting, your testimony is under oath under penalty of 20 perjury. We can use it at the hearing. What is being 21 said here is being recorded by the court reporter on the 22 right and will be transcribed into a booklet form. When 23 the transcript is completed, you'll be provided with the 24 opportunity to review it and you can make any changes or 

# ( 25 additions or corrections that you need to. However,
Sunbelt Reporting 

### & Litigation Services Austin, Bryan/Colleg Station, Corpus Christi, Dallas/Fort Worth, East Texas, Houston, San Antonio

### Page 6 ORAL DEPOSITION OF BRYAN EDWARD BUCHANAN 

# ( 1 should this matter go to hearing, I can comment on the 2 changes that you've made. So it would behoove you to, 3 you know, give us your best answer today. Okay?
4 A 

### Okay.
5 Q 

### Because of the limitations of the court 6 reporting system, the court reporter can only take down 7 what one person is saying at a time, so it's very 8 important that we don't step on each other. Allow me to 9 finish the question before you answer it. And if you 10 don't understand my question, if you don't completely 11 hear my question, just tell me, you know, ask me to 12 repeat it. I will not be offended. 

# c 13 

### Is there a -- I don't want you to guess. I 

### 14 can ask you for a good-faith estimate, but not a guess. 15 And the differences between an estimate and a guess is if 16 I were to ask you to estimate the length of this table, 17 you could give me a good-faith estimate. If I asked you 18 to estimate how big the conference table was in my office 19 and you've never been to my office, that would be a wild 20 guess. I don't want you to guess. 21 Is there any reason -- oh, also, it is very 22 important that answers be verbalized. A nod of the head 23 or a shake of the head doesn't show up in the court 24 reporter's transcript. Likewise, "uh-huh" and "huh-uh" 

# ( 25 appear very, very similar, so it's important that "yes"
Sunbelt Reporting 

### & Litigation Services Austin, Bryan/Colleg Station, Corpus Christi, Dallas/Fort Worth, East Texas, Houston, San Antonio

### Page 7 ORAL DEPOSITION OF BRYAN EDWARD BUCHANAN 

# ( 1 

### answers be answered in the affirmative, and "no'' answers 2 be answered in the negative.
3 A 

### Understood.
4 Q 

### Is there any reason why your deposition cannot 5 

### be taken today?
6 A 

### No.
7 Q 

### Are you under the influence of any drug or 8 

### medication that would adversely affect your ability to 9 

### have your deposition taken today? 10 A 

### No.
11 Q 

### Okay. I'm showing you what has been marked as 12 Buchanan Exhibit No. 1. 

# ( 13 A 

### Okay. 14 Q 

### What is that? 15 A 

### That is my resume. 16 Q 

### Okay. Is it true and accurate? 17 

### A Yes, it is. 18 Q 

### Have there been any changes to it since that was 19 

### prepared? 20 A 

### No. 21 Q 

### What, if any, involvement do you have or did you 22 have with this case, other than appearing here at a 23 deposition today?
24 A 

### Mr. Klimas prepared the case, and then I was the 

# ( 25 first-level review of that case. Sunbelt Reporting 

### & Litigation Services Austin, Bryan/Colleg Station, Corpus Christi, Dallas/Fort Worth, East Texas, Houston, San Antonio

### Page 8 

# ( ORAL DEPOSITION OF BRYAN EDWARD BUCHANAN 

### ' 1 Q 

### Okay. And this case involves an alleged or 2 alleged deficiencies in some notices to pilot in command; 3 is that correct?
4 

### A That is correct. 5 Q 

### Okay. And it has also alleged a violation of
6 

### Section 175.33 of the Hazardous Materials Regulation or 7 HMRs; is that correct?
8 

### A That is correct.
9 Q 

### Okay. And it's 175.33 that prescribes the 10 requirements for a NOPC?
11 A 

### That's correct. 12 Q 

### Okay. As I read section 175.33, it says that 

# (_ 13 the operator of the aircraft must provide the pilot in 14 command with accurate and legible written information 15 concerning shipping name, hazard class, and 16 identification number of the materials so that the pilot 17 knows what he or she has onboard the airline; is that 18 correct? 19 A 

### That is correct. 20 Q 

### And that's the regulatory purpose of this HMR? 21 A 

### Of that specific regulation, yes. 22 Q 

### There has been a position taken by the FA in 23 this case that the NOPC is also required for emergency 24 response procedures. 

# ( 25 A 

### Correct. Sunbelt Reporting 

### & Litigation Services Austin, Bryan/Colleg Station, Corpus Christi, Dallas/Fort Worth, East Texas, Houston, San Antonio

### Page 9 ORAL DEPOSITION OF BRYAN EDWARD BUCHANAN 

# ( 1 

### Q Is that your understanding? 2 

### A Yes.
3 

### Q Is there anything in the HMRs or in any 4 regulation that you know of which states that the NOPC is 5 to be used or intended to be used for emergency response 6 procedures? 7 

### A In 175.33 it talks about the information is 8 supposed to be accessible for emergency responders. That 9 is why in this case the dispatchers were required to 10 write it down after being communicated by the pilots.
11 

### Q Okay. There's nothing in 175.33 that actually 12 says that the NOPC is to be used for emergency response 

# c 13 procedures; is that correct? 14 A 

### Not with those exact words, that's correct. 15 

### Q Is there anything in any FAA publicly available 16 opinions or handbooks or orders that specifically states 17 that the NOPC is to be used for emergency response 18 procedures? 19 

### A To my knowledge, no. 20 

### Q Did you have any involvement in the 21 determination of or the selection of the sanction in this 22 matter? 23 

### A I reviewed Mr. Klimas' recommendation, that's 24 correct. 25 

### Q Do you recall what his recommendation was?
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### Page 10 ORAL DEPOSITION OF BRYAN EDWARD BUCHANAN 

# ( 1 

### MR. ARCHIER: Objection.
2 

### MR. DWORKIN: Are you instructing him not 3 to answer?
4 

### MR. ARCHIER: Yes, I am. This is

-- can 5 you read the question back?
6 

### THE REPORTER: QUESTION: "Do you recall 7 what his recommendation was? "
8 

### MR. ARCHIER: You can answer that question.
9 

### Do you understand that question? 10 THE WITNESS: Yes, I do.
11 

### MR. ARCHIER: Okay. 12 A 

### And the answer would be yes. 13 MR. ARCHIER: Any further questions along 14 that line, I'm going to object on the basis of the 15 protective order. 16 Q 

### (By Mr. Dworkin) Okay. To your knowledge

-- 17 are you familiar with FA handbook or FA Order 2530

-- 18 2150.3B? 19 A 

### Yes, sir. 20 Q 

### Okay. That is the Compliance and Enforcement 21 Handbook; is that correct? 22 A Yes, sir. 23 Q And in the Compliance and Enforcement Handbook 24 there are there is a sanction guidance table; is that

(

## - 25 correct?**"-~-** 

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# • Page 11 ORAL DEPOSITION OF BRYAN EDWARD BUCHANAN 

# ( 1 

### A Yes, sir. 2 

### Q As a matter of fact, there is a specific 3 sanction guidance table for HAZMAT cases? 4 

### A That is correct. 5 

### Q For the 12 deficient NOPCs

-- and let 6 me withdraw that. 7 In connection with this case, Martinaire has 8 not denied the FA's allegation that the NOPCs were 9 deficient in any way, have they? 10 A 

### They have not. 11 

### Q As a matter of fact, it would be safe to say 12 that in response to the FA audit, Martinaire stepped up 

# ( 13 to the plate and undertook rather substantial and very 14 shift corrective actions? 15 A 

### That's correct. 16 

### Q Was there

-- in response to the FA's concerns, 17 Martinaire revised its training program, didn't it? 18 

### A That's correct. 19 

### Q It also revised the NOPC form to make it more 20 user friendly; did it not? 21 A 

### Yes. That's correct. 22 

### Q And to your knowledge, there's been no 23 subsequent episodes of noncompliance with the NOPC 24 requirement; is that correct? 

# ( 25 A 

### That's correct. Sunbelt Reporting 

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### Page 12 ORAL DEPOSITION OF BRYAN EDWARD BUCHANAN
1 

### Q In terms of Martinaire's corrective actions or 2 response to the FA's concerns, is there anything else 3 that the FA would have liked to have seen Martinaire do 4 that it didn't do to fix the problem? 5 Other than never carry HAZMAT.
6 

### A Based on the letter from Mr. Rusinowitz and the 7 documentation that he provided, if he was in compliance 8 with that today, we would be happy. 9 

### Q Now, for the 12 to NOPCs that the FA has 10 alleged, the FA has sought a civil penalty of $206,550; 11 is that correct? 12 A 

### That is correct. 

# ( 13 Q Okay. As I read the sanction guidance table in 14 Order 2150.3B for HAZMAT cases, the

-- if you take the 15 $206,550 and divide it by 12, you get something far in 16 excess of what is in the grid in the matrix. Is that a 17 true statement? 18 

### A That is a true statement. 19 

### Q Why did the FAA exceed what is contained in the 20 grid in the hazardous**mate~ials** 

### sanction guidelines

-- 21 MR. ARCHIER: Objection 22 Q (By Mr. Dworkin)

-- in this case? 23 MR. ARCHIER: Objection. That question 24 falls within the deliberative process privilege, which is 25 protected by the protective order.
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### Page 13 ORAL DEPOSITION OF BRYAN EDWARD BUCHANAN ' 

## ( 1 I am instructing the witness not to answer 2 that question. 3 

### Q 

### (By Mr. Dworkin) How long have you been in your 4 position with FAA Southwest Region? 5 

### A A little over ten years. 6 

### Q In that period of time how many civil penalties 7 for HAZMAT violations has Southwest Region taken and 8 completed, either by settlement or litigation where they 9 have sought and collected civil penalties in excess of 10 $200,000 in HAZMAT cases? 11 

### A 

### I would say probably 15 to 20. 12 

### Q 

### In ten years? 

# c 13 A 

### Yes, sir. 14 Q 

### And what did those cases involve? 15 A 

### Different types of violations. 16 

### Q 

### Okay. How about NOPC cases? Have there been in 17 the ten years since you've been manager for hazardous 18 materials at Southwest Region, have there been any NOPC 19 

### cases in which the FA

-- other than this case -- in which 20 the FA has sought civil penalties exceeding $200,000? 21 A 

### I would have to say zero specific to NOPC cases. 22 MR. ARCHIER: Mr. Dworkin, I would like to 23 ask you a question to clarify for the record: Are you 24 asking in the Southwest Region or are you asking 25 nationwide?
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### Page 14 ORAL DEPOSITION OF BRYAN EDWARD BUCHANAN 

# ( 1 

### MR. DWORKIN: Southwest Region. 2 

### MR. ARCHIER: Okay.
3 

### Q 

### (By Mr. Dworkin) That's my next question. To 4 your knowledge

-- and I would assume as a regional 5 manager, you probably touch base with your counterparts 6 in other regions? 7 A Yes, sir. 8 Q 

### To your knowledge, has the FAA ever in a NOPC 9 case, other than this case, sought civil penalties in 10 excess of $200,000? 11 A 

### To my knowledge, no. 12 Q 

### Has Southwest Region

-- other than the 

# ( 13 Martinaire cases, has Southwest Region taken any civil 14 penalty action against any other carriers or operators 15 concerning violation of the NOPC requirements in HMR 16 175.33? 17 A Yes. 18 

### Q 

### And how many have

-- how many NOPC cases have 19 there been in the previous ten years by Southwest Region? 20 A Yeah, to the best of my knowledge I'd say 21 probably 30, possibly more. 22 

### Q 

### And what was the average civil penalty that was 23 sought by the FAA in those NOPC cases? 24 A 

### I would say and again, this is an estimation 

# (_ 25 on my part, but I would say $30,000 to $50,000.
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### Page 15 ORAL DEPOSITION OF BRYAN EDWARD BUCHANAN 

## ( 1 Q 

### How about NOPC cases FAA systemwide; do you 2 know?
3 A 

### I wouldn't know that.
4 

### (A brief interruption occurred.)
5 Q 

### (By Mr. Dworkin) In connection with the

-- your 6 review of the EIR

-- you've reviewed the EIR; is that 7 correct?
8 A 

### That's correct.
9 Q 

### And included in the EIR was a letter from 10 Martinaire to Inspector Klimas; is that correct? 11 A 

### That's correct. 12 Q 

### Okay. And there were several inches or about 

# ( 13 one and three-quarters, two inches of attachments to that 14 letter; is that correct? 15 A That is correct. 16 Q 

### You did review those? 17 A Yes, I did. 18 Q 

### Okay. And you were satisfied with Martinaire's 19 response? 20 

### A Yes. 21 

### MR. DWORKIN: Okay. I have no further 22 questions. 23 

### MR. ARCHIER: Thank you. I have no further 24 questions. 25 

### Sunbelt Reporting 

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## (



# c Page 16 ORAL DEPOSITION OF BRYAN EDWARD BUCHANAN 1 CHANGES AND SIGNATURE 2 PAGE/LINE CHANGE REASON
3
4 5
6
7 8
9 

### 10 11 12 13 14 15 

### 16 17 18 19 

### 20 I, BRYAN EDWARD BUCHANAN, have read the foregoing 21 deposition and hereby affix my signature that same is 22 true and correct, except as noted herein. 23
24 25 

### BRYAN EDWARD BUCHANAN JOB NUMBER 108773 Sunbelt Reporting 

### & Litigation Services Austin, Bryan/Colleg Station, Corpus Christi, Dallas/Fort Worth, East Texas, Houston, San Antonio

# (



# (



# ( 1 2
3 4 5
6 7 8 9 

### 10
11 

### 12 ORAL DEPOSITION OF BRYAN EDWARD BUCHANAN UNITED STATES OF AMERICA DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, D.C. In the Matter of: § § 

### FAA Case No. § 

### 2011SW700189 Page 17

§ 

### FDMS No. FAA-2013-0040 § 

### MARTINAIRE AVIATION, LLC § 

### Judge: Honorable § 

### Richard C. Goodwin

REPORTER'S CERTIFICATION ORAL DEPOSITION OF BRYAN EDWARD BUCHANAN May 17, 2013 I, Jana K. Richter, Certified Shorthand Reporter 13 in and for the State of Texas, hereby certify to the 14 following: 15 That the witness, BRYAN EDWARD BUCHANAN, was 16 duly sworn by the officer and that the transcript of the 17 oral deposition is a true record of the testimony given 18 by the witness; 19 I further certify that pursuant to FRCP Rule 20 30(f) (l) that the signature of the deponent: 21 _X

___ was requested by the deponent or a party 22 before the completion of the deposition and returned 23 within 30 days from date of receipt of the transcript. 24 If returned, the attached Changes and Signature Page 25 contains any changes and the reasons therefor: Sunbelt Reporting & Litigation Services Austin, Bryan/Colleg Station, Corpus Christi, Dallas/Fort Worth, East Texas, Houston, San Antonio

## (



# (_

( Page 18 ORAL DEPOSITION OF BRYAN EDWARD BUCHANAN
1 

### was not requested by the deponent or a 2 party before the completion of the deposition.
3 

### 4 I further certify that I am neither attorney nor 5 counsel for, related to, nor employed by any of the 6 parties to the action in which this proceeding was taken. 7 Further, I am not a relative or employee of any attorney 8 or record in this cause, nor am I financially or 9 otherwise interested the outcome of the action. 10 Subscribed and sworn to on this the 23rd day of 11 May, 2013. 12 13 14 

### 15 16 17 18 19 20 21 22 23
24 

### Jana K. 

### Richter, Texas CSR No. 3693 Expiration Date: 12/31/13 ,Firm Registration No. 301

Sunbelt Reporting 

### & Litigation Services 1-800-666-0762

25 JOB NUMBER 108773 Sunbelt Reporting & 

### Litigation Services Austin, Bryan/Colleg Station, Corpus Christi, Dallas/Fort Worth, East Texas, Houston, San Antonio

# (



# (_ 

# ' ' Page 1 ORAL DEPOSITION OF BRYAN EDWARD BUCHANAN 

### A 15:23 t---------1 area 4:21

ability 7:8 above-styled

1:17 accessible 9:8 accurate 7:16

8:14 action 14:14

18:6, 18:9 actions 11 :14

12:1 additions 5:25 ADMINISTRA

...

2:9,2:11 adversely 7:8 affect 7:8 affirmative 7: 1 affix 16:21 agents 4:20

4:23 Arlington 1:21 asked 6:17 asking 13:24

13:24 ASSOCIATES

2:5 assume 14:4 ASW-7 2:12 attached 1:24

17:24 attachments

15:13 attendance 5:5 attorney 2:3

18:4, 18:7 ATTORNEYS

2:9 audit 11:12 available 9: 15 average 14:22 AVIATION 1:6

2:3, 2:9, 2:11 17:6 16:24,17:10 17:15 8:14 comment 6:1 communicated

9:10 Buchanan 1: 10

1:15,3:12,4:1 4:4,4:10,7:12 16:20, 16:24 17:10, 17:15 completed 5:23 13:8 completely 6:10 1----------l completion 

# c California 2:5

2:6 carriers 14:14 carry 12:5 case 1:4, 7:22

7:24, 7:25, 8:1 8:23, 9:9, 11:7 12:22, 13:19 14:9, 14:9, 17:4 cases 11:3

12:14, 13:10 13:14, 13:16 13:19, 13:21 14:13, 14:18 14:23, 15:1 17:22, 18:2 compliance

10:20, 10:23 12:7 concerning 8:15

14:15 concerns 11 :16

12:2 conduct 4:20 conference 6:18 connection 5:5

11:7, 15:5 contained 12:19 contains 17:25 correct 4:25, 8:3 aircraft 8: 13 airline 8:17 Alan 2:17 allegation 11 :8 alleged 8:1, 8:2 1--------1 cause 1:17, 18:8 8:4, 8:7, 8:8 8:11, 8:18, 8:19 8:25,9:13,9:14 9:24, 10:21 10:25, 11:4 11:15, 11:18 11:21, 11:24 11:25, 12:11 12:12, 15:7 15:8, 15:10 15:11, 15:14 15:15, 16:22 8:5, 12:10 Allow 6:8 AMERICA 1:1

17:1 answer 6:3, 6:9

10:3, 10:8 10:12, 13:1 answered 7: 1

7:2 answers 6:22

7:1, 7:1 appear 6:25 Appearances

3:3 appearing 7:22 Archier 2:10

10:1, 10:4, 10:8 10:11, 10:13 12:21, 12:23 13:22, 14:2 

### B back 10:5 base 14:5 Based 12:6 basis 10:14 Becky 2:11 behoove 6:2 best 6:3, 14:20 big 6:18 booklet 5:22 border 4:22 Boulevard 1:21

2:13 break 5: 17, 5: 17 brief 15:4 brought 5:6 Bryan 1:10

1:15,3:12,4:1 4:10, 16:20 Certification 3:6, 17:9 Certified 17:12 certify 17: 13

17:19, 18:4 CHANGE 16:2 changes 3:5

5:24, 6:2, 7:18 16:1, 17:24 17:25 civil 1:22, 12:10

13:6, 13:9 13:20, 14:9 14:13, 14:22 clarify 13 :23 class 8:15 CLR 1:19 CMRS 1:19 collected 13:9 command 8:2 corrections 5:25 corrective 11: 14

12:1 counsel 2:12

18:5 counterparts

14:5 court 5:21, 6:5

6:6, 6:23 CSR 1:19, 18:16 

### D D.C 1:2, 17:2 date 17:23

18:16 day 18:10 days 17:23 deficiencies 8:2 deficient 11:5

11:9 deliberative

12:24 denied 11:8 DEPARTMENT

1:1,17:1 deponent 17:20

17:21, 18:1 deposition 1: 10

1:15,5:2, 5:6 5:9, 7:4, 7:9 7:23, 16:21 17:10, 17:17 17:22, 18:2 Description

3:11 determination

9:21 differences 6:15 Different 13: 15 dispatchers 9:9 divide 12:15 document 5:3 documentation

12:7 documents 5:7 drug 7:7 duly 1:16,4:2

17:16 duties 4:18 Dworkin 2:4

2:5, 3:4, 4:5 10:2, 10:16 12:22, 13:3 13:22, 14:1 14:3, 15:5 15:21


### Sunbelt Reporting 

### & Litigation Services Austin, Bryan/Colleg Station, Corpus Christi, Dallas/Fort Worth, East Texas, Houston, San Antonio(**~.** 

### Page 2 ORAL DEPOSITION OF BRYAN EDWARD BUCHANAN 

### E East 1:21 Edward 1:10

1:15,4:1,4:10 16:20, 16:24 17:10, 17:15 EIR 15:6, 15:6

15:9 either 13:8 emergency 8:23

9:5, 9:8, 9:12 9:17 employed 18:5 employee 18:7 Enforcement

10:20, 10:23 engagement

5:13 episodes 11:23 estimate 6:14

6:15,6:16,6:17 6:18 estimation

14:24 exact 9:14 Examination

3:4,4:3 exceed 12:19 exceeding 13:20 excess 12:16

13:9, 14:10 Exhibit 3:10

4:4, 5:2, 7:12 Expiration

18:16 

### F FAA 1:4,9:15 12:19, 13:4 14:8, 14:23 15:1, 17:4 FAA-2013-0040

1:5, 17:5 Facsimile 2:7

2:14 fact 11 :2, 11: 11 falls 12:24 familiar 10:17 far 12:15 FDMS 1:5, 17:5 Federal 1:22

2:9, 2:11 financially 18:8 finish 6:9 Firm 18:17 first 4:2 first-level 7:25 fix 12:4 following 17:14 follows 4:2 foregoing 16:20 form 5:22

11:19 Fort 2:13,4:13 Francisco 2:6 FRCP 17:19 friendly 11:20 full 4:8 further 10: 13 17:6 grid 12:16

12:20 INDEX 3:1 3:10 influence 7:7 informal 5:18 information 

### L

guess 6:13, 6:14

6:15, 6:20, 6:20 guidance 10:24

11:3, 12:13 guidelines 12:20 8:14,9:7 Inquisition 5: 16 inspections 4:21
1--------1inspector 4:23 Lamar 1:21 legible 8:14 length 6:16 letter 12:6, 15:9

15:14 liked 12:3 Likewise 6:24 limitations 6:5 line 10:14

. litigation 13:8 

### H 15:10
1--------1instance 1:16

handbook 10:17

10:21, 10:23 handbooks 9:16 happy 12:8 hazard 8:15 hazardous 4:11

4:14, 8:6, 12:20 13:17 HAZMAT 11:3

12:5, 12:14 13:7, 13:10 head 6:22, 6:23 hear 6:11 hearing 5:20

6:1 HEARINGS 1:2

17:2 hereto 1:24 HMR 8:20

14:15 HMRs 8:7, 9:3 Holmes 2:11 Honorable 1:6 instructing 10:2 13:1 intend 5:15 intended 9:5 interested 18:9 interruption

15:4 18:17 little 13:5 LLC 1:6,2:3

17:6 long 13:3 

### M involve 13:14 involvement

7:21, 9:20 involves 8: 1 machine 1:20 manager 4:10

4:14, 4:16 13:17, 14:5 1----'------l marked 3:11 

### J James 2:10 Jana 1:19, 17:12

18:16 JOB 16:25

18:25 Judge 1:6, 17:6 4:4, 5:1, 7:11 Martinaire 

### 1:6

2:3,11:7,11:12 11:17, 12:3 14:13, 15:10 17:6 1--------1Martinaire's 

### K 12:1, 15:18**1-------~** materials 4:11 15:21, 15:23 17:19, 18:4 18:7 17:6**1------~** huh-uh 6:24 Klimas 4:24, 5:1 7:24, 9:23 15:10 

### G I 1----------l give 6:3, 6:17 know 6:3, 6:11 9:4, 15:2, 15:3 4:15, 8:6, 8:16 12:20, 13:18 matrix 12:16 matter 1:3, 6:1

9:22, 11:2 FA 4:8,8:22

10:17, 10:17 11:12, 12:3 12:9, 12:10 13:19, 13:20 FA's 11:8,11:16

12:2 given 17:17 go 5:12,6:1 going 10:14 Good 4:6, 4:7 good-faith 6:14

6:17 Goodwin 1:6 identification 8:16 important 6:8

6:22,6:25 inches 15:12

15:13 included 15:9 knowledge 9:19 10:16, 11:22 14:4, 14:8 14:11, 14:20 knows 8:17 11:11, 17:3 Meacham 2:13 medication 7:8 Michael 2:4, 2:5

3:4,4:5 morning 4:6

4:7


### Sunbelt Reporting 

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## (



## (**'~** 

### Page 3 ORAL DEPOSITION OF BRYAN EDWARD BUCHANAN 

### N 5:12, 5:13, 5:14 6:3, 6:4, 7:11 7:13, 7:16, 8:1 8:5, 8:9, 8:12 9:11, 10:11 10:16, 10:20 12:13, 13:16 14:2, 15:12 15:18, 15:21 1:16 plate 11:13 position 4:8

8:22, 13:4 possibly 14:21 prepared 7: 19 

### R requirements 1--------l 8:10, 14:15
name 4:8, 8:15 nationwide

13:25 need 5:17,5:25 negative 7:2 neither 18:4 never 6:19, 12:5 nine 4:20 nod 6:22 noncompliance

11:23 NOPC 8:10

8:23, 9:4, 9:12 9:17, 11:19 11:23, 13:16 13:18, 13:21 14:8, 14:15 14:18, 14:23 15:1 NOPCs 11:5 onboard 8:17 operator 8:13 operators 14:14 opinions 9:16 opportunity

5:24 oral 1:10, 1:15

17:10, 17:17 order 10:15

10:17, 12:14 12:25 orders 9:16 outcome 18:9 7:24 prescribes 8:9 PRESENT 2:16 previous 14:19 principal 4:18 privilege 12:24 probably 13: 11

14:5, 14:21 problem 12:4 Procedure 1:23 procedures 8:24

9:6, 9:13, 9:18 proceeding 18:6 process 12:24 produced 1:15 program 11:17 read 8:12, 10:5 12:13, 16:20 reason 6:21, 7:4

16:2 reasons 17:25 recall 9:25, 10:6 receipt 17:23 recommendation

9:23, 9:25, 10:7 record 1:23, 4:9

13:23, 17:17 18:8 recorded 5:21 Region 2:12

4:15, 13:4, 13:7 13:18, 13:24 14:1, 14:12 14:13, 14:19 regional 2:12

14:4 11:8,12:9 noted 16:22 notice 5:2 notices 8:2 number 3:11 1-------1protected 12:25 regions 14:6 Registration

18:17 regulation 8:6 

### p protective 10: 15 1--------1 12:25 Page 3:2, 3:11

17:24 PAGE/LINE

16:2 8:16, 16:25 18:25 numbered 1:17 part 14:25
1----------1 parties 18:6 

### 0 party 17:21 1----------1 18:2

oath 5:19 object 10:14 Objection 10:1

12:21, 12:23 occurred 15:4 offended 6:12 office 1:2, 1:20

2:12,6:18,6:19 17:2 officer 17:16 oh 6:21 Okay 4:14,4:18

4:23, 5:5, 5:9 penalties 13:6 13:9, 13:20 14:9 penalty 5: 19

12:10, 14:14 14:22 period 13:6 perjury 5:20 person 6:7 pilot 8:2, 8:13

8:16 pilots 9:10 PLAINTIFF provide 8: 13 provided 5:23

12:7 provisions 1:23 publicly 9:15 purpose 8:20 pursuant 1:22

17:19 8:21, 9:4 regulatory 8:20 Regus 1:20 related 18:5 relative 18:7 relatively 5: 18 repeat 6:12 1------------1 reported 1:20 

### Q reporter 5:21 1----------1 6:6, 10:6, 17:12

question 6:9

6:10,6:11, 10:5 10:6, 10:8, 10:9 12:23, 13:2 13:23, 14:3 questions 4:5

10:13, 15:22 15:24 reporter's 3:6 6:24, 17:9 reporting 6:6

18:17 requested 17:21

18:1 required 8:23

9:9 requirement

11:24 responders 9:8 response 8:24

9:5,9:12,9:17 11:12, 11:16 12:2, 15:19 responsibilities

4:19 resume 3:12

7:15 returned 17:22

17:24 review 5:24

7:25, 15:6 15:16 reviewed 9:23

15:6 revised 11 :17

11:19 Richard 1:6

17:6 Richter 1 :19

17:12, 18:16 right 5:22 RSA 1:19 Rule 17:19 rules 1:22,5:12 Rusinowitz 2:17

12:6 

# s safe 11:11 San 2:6 sanction 9:21

10:24,11:3 12:13, 12:20 satisfied 15: 18 saying 6:7 says 8:12, 9:12 section 4:11

4:16, 8:6, 8:12 seen 5:3, 12:3 selection 9:21 Services 18: 17


### Sunbelt Reporting 

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# ( Page 4 ORAL DEPOSITION OF BRYAN EDWARD BUCHANAN setting 5: 19 

### settlement 13:8 

### shake 6:23 

### shift 11:14 

### shipping 8: 15 

### shorthand 1:20

17:12 

### show 6:23 

### showing 5:1

7:11 

### signature 3:5

16:1, 16:21 17:20, 17:24 

### similar 6:25 

### sir 4:7, 10:19

10:22, 11:1 13:13, 14:7 

### six-state 4:21 

### sought 12:10

13:9, 13:20 14:9, 14:23 

### Southwest 2:12

4:15, 13:4, 13:7 13:18, 13:24 14:1, 14:12 14:13, 14:19 

### Spanish 5: 15 

### special 4:20 

### specific 8:21

11:2, 13:21 

### specifically 9:16 

### State 1:19

17:13 

### stated 1:23 

### statement 12:17

12:18 

### states 1:1,4:21

9:4, 9:16, 17:1 

### step 6:8 

### stepped 11:12 

### Street 2:5 

### Subscribed

18:10 

### subsequent

11:23 

### substantial 11:13 

### Suite 1:21,2:5

2:13 

### Suites 1:21 

### Sunbelt 18: 17 

### supervise 4:20 

### supervisor 4: 16 

### supposed 9:8 

### sworn 1:17,4:2 

### touch 14:5 

### training 11 : 1 7 

### transcribed

5:22 

### transcript 5:23

6:24, 17:16 17:23 

### TRANSPORT

...

1:1,17:1 

### true 7:16, 12:17

12:18, 16:22 17:17 

### wild 6:19 

### withdraw 11:6 

### witness 1 :16

10:10, 13:1 17:15, 17:18 

### words 9:14 

### Worth 2:13

4:13 

### 2
2 3:3 

### 20 13:11 

### 200,000 13:10

13:20, 14:10 

### 2000 1:21 

### 2011SW700189

1:4,17:4 

### write 9:10 

### writings 5:6 

### written 8: 14 

### 2013 1:11, 1:18 17:11, 18:11
1-------------l 

### 206,550 12: 10 17: 16, 18: 10 

### system 6:6 

### systemwide

15:1 two 15:13 

### 1---------!types 13:15 

### y 12:15 

### 1--------1210 2:5 

### T 1------JYeah 14:20 

### 2150.3B 10:18 

### 1---------1 

### U years 13:5 12:14 

### 23rd 18:10 

### 2530 10:17 1--------1 

### 2601 2:13 

### table 6:16, 6:18

10:24, 11:3 12:13 

### take 5: 17, 5: 17

6:6, 12:14 

### taken 1:17, 5:9

7:5, 7:9, 8:22 13:7, 14:13 18:6 

### talks 9:7 

### Telephone 2:6

2:14 

### tell 6:11 

### ten 13:5, 13:12

13:17, 14:19 

### terms 12:1 

### testified 4:2 

### testimony 5:19

17:17 

### Texas 1:20, 1:22

2:13,4:13,4:21 4:22, 17:13 18:16 

### Thank 15:23 

### therefor 17:25 

### three-quarters

15:13 

### time 6:7, 13:6 

### today 6:3, 7:5

7:9, 7:23, 12:8 13:12, 13:17 14:19

# z

zero 13:21 

### 3 uh-huh 6:24 

### uncomfortable

5:16 

### understand

6:10, 10:9 

### understanding

9:1 

### Understood 7:3 

### undertook

11:13 

### 1--------130 14:21, 17:23 

### 1 30(f)(1 17:20 

### 1--------130,000 14:25



### UNITED 1:1

17:1 1 3:12,4:4, 5:2 7:12 

### 10:07 1:18 

### 10:25 1:18 

### 108773 16:25 

### use 5:20 

### user 11:20 18:25 1--------1 

### 12 11:5, 12:9 

## v 12:15 

### 1--------1 12/31113 18:16 

### 15 13:11 

### 16 3:5 

### 17 1:11, 1:18

17:11 

### verbalized 6:22 

### violation 8:5

14:15 

### violations 13:7

13:15

# w 175.33 8:6, 8:9 8:12, 9:7,9:11 14:16 

### 1----------1 18 3:6



### want 6:13, 6:20 

### WASHINGTON

1:2, 17:2 

### way 11:9 

### 1-800-666-0762 18:18 

### 301 18:17 

### 3693 18:16 

### 4
4 3:4,3:12 

### 415-421-2500

2:6 

### 415-421-2560

2:7 

### 465 2:5

### 5 50,000 14:25 

### 6 600 1:21 

### 6E 2:13



### Sunbelt Reporting 

### & Litigation Services Austin, Bryan/Colleg Station, Corpus Christi, Dallas/Fort Worth, East Texas, Houston, San Antonio

## (



# (

( \._ 

### 7 76006 1:22 76137 2:13 

### 8 817-222-5092

2:14 817-222-5099

2:14 

### 9 94104 2:6 

### Page 5 ORAL DEPOSITION OF BRYAN EDWARD BUCHANAN

Sunbelt Reporting 

### & Litigation Services Austin, Bryan/Colleg Station, Corpus Christi, Dallas/Fort Worth, East Texas, Houston, San Antonio06/18/2013 11:50 713-

.. 3838 SUNBELT**REPDR~~~NG** PAGE 01/05

Austin 1016 LaPosadaDrive Suite 294 Austin,Texas 78752 512. 465. 9100

Bryan/College Station 1716BriarcrestDrive Suite 300 Bryan. Texas 77802 979

. 774.4000

CorpusChristi 711 N. Carancahua Suite 700-N CorpusChristi, Texas 78401 361.882.0763

Dallas/FortWorth 15150Preston Suite 300 Dallas, Texas 75248 214. 747. 0763

EastTexas 100E. Ferguson Suite900 Tyler, Texas 75702 903

. 593

. 3213

Houston 6575 W. Loop South Suite 580 Bellaire, Texas 77401 800.666.0763

SanAntonio 8000 IH-10 West Suite 1500 SanAntonio, Texas 78230 210

. 342.0763 

## Sunbelt**Reporting';~·ct~pgati.on** 

## Services

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

. : . '

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..

June 17,2013
Michael L. Dworkin Michael L. Dworkin 465 California Street, Suite 210 SanFrancisco, CA 94104 

# . . . . . . . ....**'.}~.;:{''g;i~t~~~~~~~**

# .................. 6575**~e~t!i.Qbp ~gp,ili;:** **~uite** 580**HQ!.fSt:Qg/B.elJ,iil'&:,:.T~~** 77401 '):**~~sunbel;rep~rt}no;com** 1.

### 800.666.,~76l: ··•···• .

### :,~)' 713. 661. 3838

.::: ..::::- -/:;;·; .;**~·**

Re: Deposition ofBRYANEDWARD BUCHANAN 05/17/2013 IN THE MATTEROF: MARTINAIREAVIATION, LLC
As indicatedbelow: Please be advised ofcurrentstatus ofthe OriginalDeposition. 

## J The attached OriginalDeposition, afterbeing signed andnotarized bythewitness onthe errata/correctionpage, is beingforwardedtoyouinaccordance withthe Texas/FederalRules ofCivil Procedure.

o The attached OriginalDeposition, whichwasretumedunsigned and/ornotnotarized, is being forwarded to youinaccordancewith the Texas/FederalRu1es ofCivil Procedure. 

## J Theattachedcopies ofCertificate(s) and/or executed andnotarizedErrata/Correction Sheet(s) are sentto youfor yourfiles. Ifyou have any questions, please call.

o Please be advised thatthe OriginalDepositionwas notreturned withinthetime specifiedfor unknownreasons.
o The attached Original Exhihit(s) are beingreturned withoutthe OriginalDeposition, which was due
on ___, forunknown reasons.

o A copy ofthe Certificate is being sentto the Court Clerkfor filing oftaxable cost.

o OriginalDeposition and Original Exhibits arebeingreleasedon -----> due to trial on

Sincerely,

IleanaChavez SunbeltReporting and Litigation Services No. 108773
ENCLOSEDPLEASEFIND: 

## J OriginalDeposition o Original Exhibit(s) 

## J Errata/Correcti9nPage(s) " Reporter's Certificate

cc: James Archier 

# One CallDoesItAll!06/18/2013 11:50 713-.-3838 PAGE 02/05



### Page 16 ORAL, DEPOSITION OF BRYAN EDWARD BUCHANAN

1 

### CHANGES AND SIGNATURE
2 

### PAGE/LINE CHANGE REASON
3 

## pAC,£ 

# t,**l-~tJt ~l**  il ' II L**~** lil

- S-T"ll\ T& IV**ltJ~tuc:**

### .. 

## +:
4 5 6
7 8
9 10 11 12 13 14 15 16 17 18 19 20 21 22 23
24 25

### ~l~-t.. - S'n\·\'15' 

## 11 1

### 1\lttt IC\4. 1

### l\lt t> f..J\



### I, BRYAN EDWARD BUCHANAN, have read the foregoing deposit:ion and hereby affix my signature that same is
true and correct, except as noted herein.

BRYAN EDWARD BUCHANAN JOB 

### NUMBER 108773 

### Sunbelt Reporting 

### & Litigation services Austin, Bryan/Colleg station, Corpus Christi, Dallas/Fort Worth, East Texas, Houston, San Antonio 

# RECEIVED JUN 

# 0 5 

# 2n1305/18/2013 11:50 713-

.. 3838**CERT~CATEOFACKNO~EDGMENT**


### STATE OFTEXAS COUNTY OF TARRANT

Onthis, the 30th day of May , 2013, before me, TeresaEmmons , a NotaryPublic 

### inand for theCounty ofTarrant, State ofTexas duly commissioned and qualified, personally appeared Bryan Buchanan , knownto me to betheperson described in, orproduced appropriate identification as proofofidentity, andwhose names
are subscribedto the attachedinstrument, and acknowledgedto methatheexecutedthe instrument for thepurposes and considerations therein stated.

IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal, at myoffice inthe day andyearinthis certificate frrst written above.



# ----------- 

# - T£RESAEMMDNS M¥CommlJtlott**~** October 19, 2018' Notary Public (Signatme)



## Juu 

## 0 .:**2\)~.** 

## ·E\v·£0 ·ut' ., 

# REC ·• PAGE 03/0505/18/2013 11:50**713-5~~~-3838** SUNBELT**REPO~G** PAGE 04/05


### Page 17

1 

### 2
3 

### 4 5 6 

### 7 ORAL DEPOSITION OF BRYAN EDWARD BUCHANAN
UNITED STATES OF AMERICA DEPARTMENT OF TRANSPORTATION OFFICE 

### OF HEARINGS

WASHINGTON, D.C. In the Matter of:

MARTINAIRE AVIATION, LLC § § 

### FAA Case No. § 

### 2011SW700189 § 

### FDMS No. FAA-2013-0040 § § 

### Judge: Honorable § 

### Richard 

## c. Goodwin

REPORTER'S CERTIFICATION 10 ORAL DEPOSITION OF BRYAN EDWARD BUCHANAN 11 May 17, 2013 12 I, Jana K. Richter, Certified Shorthand Reporter 13 in and for the State of Texas, hereby certify to the 14 following: 

### 15 That the witness, BRYAN EDWARD BUCHANAN, was 16 duly sworn by the officer and that the transcript of the 17 oral deposition is a true record of the testimony given 18 by the witness; 19 I further certify that pursuant to FRCP Rule 20 30(f} (1) that the signature of the deponent: 21 _X

___ was requested by the deponent or a party 22 before the completion of the deposition and returned 23 within 30 days from date of receipt of the transcript. 24 If returned, the attached Changes and Signature Page 25 contains any changes and the reasons therefor: Sunbelt Reporting & Litigation Services Austin, Eryan/Colleg Station, Corpus Christi, Dallas/Fort Worth, East Texas, Houston, San Antonio06/18/2013 11:50 713-,-3838 PAGE 05/05 

### Page 18 ORAL DEPOSITION OF BRYAN EDWARD BUCHANAN· 

### 1 was not requested by the deponent or a 2 

### party before the completion of the deposition.
3 

### 4 I further certify that 

### I am neither attorney nor 5 

### counsel for, related to, nor employed by any of the
6 

### parties to the action in which this proceeding was taken. 7 

### Further, I 

### am not a relative or employee of any attorney 8 

### or record in this cause, nor am I 

### financially or 9 

### otherwise interested the outcome of the action. 10 Subscribed and sworn to on this the 23rd day of 11 May, .2013. 12 

### 13 14 

### 15 

### 16 17 1·8 19 20 

### 21 22 23 24 

### Jana 

### K. Richter, Texas CSR No. 3693 Expiration Date: 12/31/13 Firm Registration No. 301 sunbelt Reporting & 

### Litigation Services 1-800-666-0762



### 25 JOB NUMBER 

### 108773 Sunbelt Reporting 

### & Litigation Services Austin, Bryan/Colleg Station, Corpus Christi, Dallas/Fort Worth, East Texas, Houston, San Antonio

# •

EXHIBITH Complainant's Responses to Respondent's First Request for
Production ofDocuments

FAA Case No. 2011SW700189 /DMS No. FAA-2013-0040
MARTINAIRE AVIATION, LLC'S RESPONSE AND OBJECTIONS TO COMPLAINANT'S MOTION FOR DECISION

# e· 

# •

U.S. DEPARTMENT OF TRANSPORTATION

# \~~

FEDERAL AVIATION**ADMINISTRA_T_~I~O~N~--~~~--~** OFFICE OF HEARINGS

- · • 

# d

In the Matter of:
Martinaire Aviation, LLC Respondent

JUDGE GOODWIN WASHINGTON, DC 

# ltece1ve·

) ) ) ) ) ) ) ) FAA DOCKET 

### JUN 1 8 REC'O FAA-2013-0040
FAA Case No

### 2011s~:if~ ..

### ti~~:!Jn (Civil Pena FDMS No. FAA-2013-0040



### AGENCY'S RESPONSES TO RESPONDENT'S FIRST REQUEST FOR PRODUCTION OF DOCUMENTS
Pursuant to the provisions of 14 CFR § 

### 13.220(d), Subpart GRules of Practice in FAA Civil Penalty Actions, Judge Richard C. Goodwin's Procedural Order, dated February 5, 2013, Judge Richard C. Goodwin's Order Granting Joint Motion, dated February 26, 2013 and Rule 34 of the Federal Rules of Civil Procedure, the agency hereby responds to Respondent's request to produce as follows: Request to Produce 1.1.: 

### Produce Complainant's case file bearing FAA Docket No. FAA-2013-0040, FAA Case No. 2011SW700189 in its entirety, including, but not limited to, items of proof, exhibits, correspondence, memoranda, and all other documents contained therein. Response to 1.1.: 

### The releasable portions of the Enforcement Investigative Report were produced in Complainant's Motion for Protective Order dated, April 4, 2013, marked as Exhibit D. The cover page of Exhibit D is attached. Request to Produce 1.2.: 

### Produce all documents pertaining to the allegations set forth in the Complaint in this matter. Response to 1.2: 

### All documents pertaining to the allegations set forth in the Complaint were produced in Complainant's Motion for Protective Order dated, April 4, 2013, marked as Exhibit D. The cover page of Exhibit D is attached.

# e

\ Request to Produce 1.3.: 

### Produce all documents which Complainant intends to utilize as exhibits at the hearing in this matter. Response to 1.3: 

### The exhibits complainant intends to utilize at the hearing include the releasable portions of the Enforcement Investigative Report which were produced in Complainant's Motion for Protective Order dated, April 4, 2013, marked as Exhibit D. Complainant objects to all other documents made by this request because these documents are excluded by the Protective Order issued by Judge Goodwin on May 1, 2013. Request to Produce 1.4.: 

### Produce all statements and documents pertaining to statements made to Complainant by MARTINAIRE concerning the matters alleged in the Complaint. Response to 1.4: 

### All statements and documents pertaining to statements made to Complainant by MARTINAIRE are contained in the releasable portions of the Enforcement Investigative Report which were produced in Complainant's Motion for Protective Order dated, April 4, 2013, marked as Exhibit D. The cover page of Exhibit D is attached. Request to Produce 1.5.: 

### Produce all statements and documents pertaining to statements made to Complainant by any employees or former employees of MARTINAIRE concerning the matters alleged in the Complaint. Response to 1.5: 

### All statements and documents pertaining to statements made to Complainant by any employees or former employees of MARTINAIRE concerning the matters alleged in the Complaint are contained the releasable portions of the Enforcement Investigative Report which were produced in Complainant's Motion for Protective Order dated, April 4, 2013, marked as Exhibit D. The cover page of Exhibit D is attached. Request to Produce 1.6.: 

### Produce all statements and documents pertaining to statements made to Complainant by any other person, firm, or corporation, concerning the matters alleged in Complaint. Response to 1.6: 

### All statements and documents pertaining to statements made to Complainant by any other person, firm, or corporation, concerning the matters alleged in Complaint are contained in the releasable portions of the Enforcement Investigative Report which were produced in Complainant's Motion for Protective Order dated, April 4, 2013, marked as Exhibit D.


### 2

# e

\ 

### Complainant objects to all other documents made by this request because these documents are excluded by the Protective Order issued by Judge Goodwin on May 1, 2013. Complainant also objects on the grounds that this material includes work product because it was created in anticipation of litigation. Request to Produce 1.7.: 

### Produce all resumes, curriculum vitae and any and all written qualifications of all persons whom Complainant expects to utilize as expert witnesses at the hearing in this matter. Response to 1.7: 

### To date Complainant does not anticipate utilizing any expert witnesses. If this situation changes before trial, Complainant will provide the names of any expert witnesses it intends to utilize. Request to Produce 1.8.: 

### Produce all documents pertaining to facts and opinions held by Complainant's experts acquired or developed in anticipation of litigation or for the hearing in this matter. Response to 1.8: 

### To date Complainant has not utilized any expert witnesses. Request to Produce 1.9.: 

### Complainant's experts in litigation or hearing in Produce all documents reviewed by connection with the anticipated this matter. Response to 1.9: 

### To date Complainant has not utilized any expert witnesses. Request to Produce 1.10.: 

### Produce all documents generated by Complainant's experts in connection with the anticipated litigation or hearing in this matter. Response to 1.10: 

### To date Complainant has not utilized any expert witnesses. Request to Produce 1.11.: 

### Produce all documents evidencing and/or pertaining to Complainant's computation of the proposed civil penalty in accordance with the Matrix set forth in FAA Order 2150.3B, FAA Compliance and Enforcement Program, Appendix C, Sanction Guidance Hazardous Materials Enforcement, Figure C1 . Response to 1.11: 

### Complainant released the information requested in this request to produce in the releasable portions
3

# •

of the Enforcement Investigative Report which was produced in Complainant's Motion for Protective Order dated, April 4, 2013, marked as Exhibit D. Complainant objects to all other documents made by this request because these documents are excluded by the Protective Order issued by Judge Goodwin on May 1, 2013. Request to Produce 1.12.: Produce all Orders Assessing Civil Penalty for the following HAZMAT cases: 2012SW700081; 2011SW700155; 2011SW700182; 2011SW700093; 2010SW700184; and 2010SW700147. Response to 1.12: Attached are the Order Assessing Civil Penalties. Request to Produce 1.13.: Produce all Orders Assessing Civil Penalty issued by the Complainant's Southwest Region relating to alleged violations of 49 CFR section 175.33(a) (1) by any person, firm, corporation or other entity within the preceding ten years. Response to 1.13: See attached documents.
Request to Produce 1.14.: Produce all Orders Assessing Civil Penalty issued by the Complainant's Southwest Region relating to alleged violations of 4 9 CFR section 175. 33 (a) (1) (i) by any person, firm, corporation or other entity within the preceding ten years. Response to 1.14: See attached documents provided in response to 1.13.
Request to Produce 1.15.: Produce all Orders Assessing Civil Penalty issued by the Complainant's Southwest Region relating to alleged violations of 4 9 CFR section 175. 33 (a) (7) by any person, firm, corporation or other entity within the preceding ten years. Response to 1.15: See attached documents provided in response to 1.13.
Request to Produce 1.16.: Produce all documents evidencing mitigating actions taken by Respondent as a result of the FAA's July 8, 2011 HAZMAT inspection at MARTINAIRE'S facilities at DFW Airport and its headquarters in Addison, Texas.

4Response to 1.16: 

### All documents evidencing mitigating actions taken by Respondent as a result of the FAA's July 8, 2011 HAZMAT inspection at MARTINAIRE'S facilities at DFW Airport and its headquarters in Addison, Texas are contained in the releasable portions of the Enforcement Investigative Report which were produced in Complainant's Motion for Protective Order dated, April 4, 2013, marked as Exhibit D. Complainant objects to this request because these documents are excluded by the Protective Order issued by Judge Goodwin on May 1, 2013. Request to Produce 1.17.: 

### Produce all documents supporting Complainant's contention that Notifications of Pilot-in-Command (NOPC) are intended to be utilized to assist first responders in the event of an aircraft mishap.
Response to 1.17: 

### 49 CFR 175.33(c) (4) is attached.
Respectfully submitted this**17~** 

### day of June 2013.

ERIC E. ANDERSON

5

# e
\


### CERTIFICATE OF SERVICE
Re: Martinaire Aviation, LLC, FAA Case No. 2011SW700189
I further certify that on this date, I have sent via Federal Express a true copy of the Agency's Responses to Respondent's First Request for Production of Documents, Agency's Responses to Respondent's First Set of Interrogatories, and Agency's Responses to Respondent's First Set of Request to Admit 

### addressed as follows:
Mr. Michael L. Dworkin and Associates Law Offices 465 California Street, Suite 210 San Francisco, California 94104-1808 

### (Federal Express) Telephone: (415) 421-2500 Facsimile: (415) 421-2560

June 17, 2013

6

# e
\



# RESPONSE TO 1.1U.S. Deportmenl of TronSfX"l.1otion Federal Aviation Administration

June 19, 2012 

### Via Federal Express Southwest Region Arkansas, Louisiana, New Mexico, Oklahoma Texas

Mr. Michael L. Dworkin Michael L. Dworkin and Associates Law· Offices 465 California Street, Suite 210 San Francisco, California 94104 Office of Regional Counsel. ASW-7 2601 Meacham Blvd. Fort Worth, TX 76137 (817) 222-5099 {817) 222-5945/5092 FAX

Re: 

### FAA Case No. 2011SW700189 (Hazardous Material)
Dear Dworkin:
Pursuant to your request**enclose~** is a copy of the releasable documents from the EIR referenced above regarding your client. The following information is not enclosed since it is exempt from disclosure under the Freedom of Information Act [FOIA], 5 U.S.C. § 552, Exemption No. (5), because the information_ constitutes intra-agency communications, the release of which would disclose the government deliberative process:
l. Blocks 18, 25, 26, 29, 30, and 31 of FAA Form 2150-1 which contain information concerning regulations believed violated and the recommended sanction, which constitute intra-agency communications, the release of which would disclose government deliberative process. 2. The reporting inspectors list of citations, analysis of facts, violations summary and the checklist of sanction analysis, including recommendations, the sanction calculation sheet, and the Enforcement Decision Tool \illorksheet.


### 3. E-mails and memoranda to Office of the Chief Counsel or managing attorneys, from agency counsel regarding sanction recommendations and responses from the Office of Chief Counsel to agency counsel, dated February 6, 2012, May 16, 2012, and May 21, 2012 and e-mails to Public Affairs and responses from Public Affairs regarding the enforcement action dated May 24, 2012, May 25, 2012, May 29, 2012, and

# •

May 30, 2012, the release of which would disclose the government deliberative process. Exemption (5) applies to interagency or intra-agency memoranda or letters, which would not be available by, law to a party other than an agency in litigation with the agency. The above partial denial is not intended to be a formal denial under the Freedom of Information Act. If you want a formal denial under the Freedom of Information Act, please resubmit your request in writing and your denial will be processed accordingly.
Sincerely

ERIC E. ANDERSON Acting Regional Counsel Southwest Region

orney eneral Litigation and Rulemaking Branch (817) 222-5074



### 2

# RESPONSE TO 1.12U.S. Department of Transportation Federal Aviation Administration


### July 24, 2012 Southwest Region Arkansas, Louisiana, New Mexico, Oklahoma Texas



### Via Federal Express


### Mr. Gerald F. Murphy, Esq. Crowell 

### & Moring LLP 1001 Pennsylvania Avenue, NW Washington, DC 20004 

# e:

Office of Regional Counsel, ASW-7 2601 Meacham Blvd. Fort Worth, TX 76137 (817) 222-5099 (817) 222-5945/5092 FAX



### Re: FAA Case No. 2012SW700081 (Hazardous Material) ORDER ASSESSING CIVIL PENALTY


### On June 18, 2012, the Federal Aviation Administration advised Atlantic Southeast Airlines, Inc., ("Atlantic") through a Notice of Proposed Civil Penalty that it proposed to assess a civil penalty in the amount of $88,000.00.
In order to avoid further litigation, the parties held an informal conference on July 24, 2012. The parties agreed to settle this case for $77,000.00 and Atlantic has agreed to waive any further rights of appeal. This order constitutes a finding by the Federal Aviation Administration of the facts and regulatory violations contained herein. It is determined that: 1. On or about February 16, 2012, Atlantic Southeast Airlines, Inc., ("Atlantic") offered FedEx Corporation a package containing hazardous material for transportation by air from Baton Rouge, Louisiana to Lenexa, Kansas. 2. The shipment was offered via FedEx air bill number 456321723798. 3. On November 16, 2011, Atlantic offered FedEx Corporation a package containing hazardous material for transportation by air from Baton Rouge, Louisiana to Lenexa, Kansas. 4. The shipment was offered via FedEx air bill number 456321718994.: 

# --

5. On October 25, 2011, Atlantic offered FedEx Corporation a package containing hazardous material for transportation by air from Baton Rouge, Louisiana to Lenexa, Kansas.
6. The shipment was offered via FedEx air bill number 45632171704.
7. On October 24, 2011, Atlantic offered FedEx Corporation a package containing hazardous material for transportation by air from Baton Rouge, Louisiana to Lenexa, Kansas. 8. The shipment was offered via FedEx air bill number 456321717601.
9. Ms. Ronda Sparrow {Ntirugelegwa) prepared the shipper's declaration for dangerous goods on all the shipments described above. 10. Each shipment consisted of an oxygen generator. 11. The oxygen generators were packaged in 4G fiberboard boxes. 12. The proper shipping name for an oxygen generator is Oxygen Generator, Chemical, 5.1, UN3356, PGII. 13. Oxygen Generator, Chemical, 5.1, UN3356, PGII is classified as a hazardous material under the Department of Transportation Hazardous Material Regulations. 14. On the dates referred to above, Atlantic offered an oxygen generator in packaging that failed to meet The Flame Penetration Resistance Test 

### specified in Appendix E to part 178. 15. On the dates referred to above, Atlantic offered an oxygen generator in packaging that failed to meet The Thermal Resistance Test 

### specified in Appendix D to part 178.
16. On October 25, 2012, Atlantic reoffered a shipment containing an oxygen generator that was rejected by FedEx on October 24, 2012. 17. When Atlantic reoffered the package on October 25, 2012, it attempted to conceal language on a box which stated "this package is not authorized for transportation aboard aircraft".


### 2

### 18. By reason of the above/ Atlantic violated the following Department of Transportation Hazardous Materials Regulations (Title 49 

### of the Code of Federal Regulations):

a. Section 171.2(e) (49 

### C.F.R. § 

### 171.2(e)) 1 

### in that it offered hazardous material for transportation by air in commerce when the material was not properly classed/ described/ packaged/ marked 1 

### labeled 1 

### and in a condition for shipment as required or authorized by applicable requirements of the hazardous material regulations.
b. Section 173.168(d) (1) (i) (ii) (49 

### C.F.R. § 

### 173.168. (d) (1) (i) (ii) in that it offered hazardous material for transportation in air commerce in packaging that failed to conform to the requirements of either: (i) Part 178 1 

### subparts Land 

### M 1 

### of this subchapter at the Packing Group I or II performance level; or (ii) The performance criteria in Air Transport Association (ATA) Specification No. 300 for a Category I 

### Shipping Container.

c. Section 173.168(d) (2) (i) (49 

### C.F.R. § 

### 173.168. (d) (2) (i)) in that it offered hazardous material for transportation in air commerce in packaging that failed to meet 

### The Flame Penetration Resistance Test specified in Appendix 

### E to part 178.
d. Section 173.168(d) (2) (ii) (49 

### C.F.R. § 

### 173.168. (d) (2) (ii)) in that it offered hazardous material for transportation in air commerce in packaging that failed to meet 

### The Thermal Resistance Test specified in Appendix 

### D to part 178. NOW, THEREFORE, IT IS ORDERED, 

### pursuant to 49 

### U.S.C. § 

### 5123(a), that Atlantic be and is hereby, assessed a civil penalty of $77,000.00.


### Atlantic is hereby ordered to pay/ immediately, the assessed amount by mailing or delivering a certified check 1 

### money order, or company check in the amount of $77,000.00 

### payable to the "Federal Aviation Administration" addressed to:
Federal Aviation Administration DOT/FAA MMAC AMZ-350 PO BOX 25770 Oklahoma City, Oklahoma 73125-5082 ATTN: Sonny Rogers 

### 3

# '.

As an alternative method of payment, civil penalties may be paid with a credit card at the following website: http://www.pay.gov
The amount of civil penalty assessed in this order constitutes a debt owed to the United States. Atlantic has now exhausted its right to seek review of the validity or amount of this debt. If this debt is not paid in full within 30 days of Atlantic's receipt of this letter, the debt is delinquent.
For delinquent debts, federal regulation (49 C.F.R. § 

### 89.23) requires us to charge interest, from the date of this Order, at a fixed annual rate of 1.0%, 

### along with an administrative charge of $12 per month, representing our costs of administrative collection. Furthermore, if the full amount assessed is not paid in full within 120 days of Atlantic's receipt of this letter, we are required to assess an additional penalty at an annual rate of 2.00%, 

### accruing from the date of delinquency. Delinquent debts may be reported to consumer reporting agencies or commercial credit bureaus, which could adversely affect Atlantic's credit rating. Nonpayment of this debt may ultimately result in a referral to a collection agency, or the United States Department of Justice for enforced collection.
Upon our receipt of Atlantic's payment in the amount of $77,000.00 

### Atlantic may consider this matter closed.

ERIC E. ANDERSON Acting Regional Counsel

### Southw~'S' Region

# \~-;-:>**:j~.~u** // James Archier, Attorney /./ (817) 222-5074 (Phone) ( / (817) 222-5945/5092 (Fax)

cc: FAA/MMAC Accounts Receivable
4

# -- ••

CERTIFICATE OF SERVICE


### I certify that this order has been sent on July 24, 2012 by Federal Express to:
Mr. Gerald F. Murphy, Esq. Crowell 

### & Moring LLP 1001 Pennsylvania Avenue, NW Washington, DC 20004



## /---- 

# \**B~»-** /' J mes Archier

/ ederal Aviation Administration**~** 

### Office of the Regional Counsel**~** 

### Southwest Region**~~** 

### 2601 Meacham Blvd., Fort Worth, Texas 76137 (817) 222-5074

5 

### Dated: July 24, 2012U.S. Deportment of Transportation Federal Aviation Administration

June 19, 2012
Via Federal Express Southwest Region -Arkansas, Louisiana, New Mexico, Oklahoma Texas

Mr. Jeffrey P. Novota Attorney General Counsel Department Southwest Airlines P.O. Box 36611, HDQ-4GC 2702 Love Field Drive Dallas, Texas 75235-1611 Office of Regional Counsel, ASW-7 2601 Meacham Blvd. Fort Worth, TX 76137 (817) 222-5099 (817) 222-5945/5092 FAX

Re: Southwest Airlines Company, FAA Case No. 2011SW700155 

### ORDER ASSESSING CIVIL PENALTY
On February 17, 2012, the Federal Aviation Administration advised Southwest Airlines through an Amended Notice of Proposed Civil Penalty that it proposed to assess a civil penalty in the amount of $42,500.
In order to avoid further litigation, the parties agreed to settle this case for $32,000 and Southwest Airlines has agreed to waive any further rights of appeal. This order constitutes a finding by the Federal Aviation Administration of the facts and regulatory violations contained herein. It is determined that:
1. On or about May 25, 2011, Southwest Airlines accepted hazardous material from a ticketed passenger for air transportation in commerce from Orlando, Florida to Houston, Texas on Southwest Airlines flight 1104.
2. The shipment consisted of a battery powered wheel chair. The battery powered wheel chair operated with two attached spillable batteries.
3. The battery-powered wheel chair was transported on its side.
4. The improper loading caused the release of battery fluid in the aircraft.j_ 

### The proper shipping name for a battery powered wheel chair is Battery-Powered Vehicle, hazard class 9, UN3171.
6. Battery-Powered Vehicle, hazard class 9, UN3171 is classified as a hazardous material under the Department of Transportation Hazardous Material Regulations (49 C.F.R. § 

### 172.101)-
7. At all relevant times, Southwest Airlines failed to conduct a visual inspection including removal of the batteries of the battery-powered wheel chair.
8. At all relevant times, Southwest Airlines failed to store the batteries of the battery-powered wheel chair with spillable batteries in an upward position.
9. By reason of the above, Southwest Airlines violated the following Department of Transportation Hazardous Materials Regulations (Title 49 of the Code of Federal Regulations):

a. Section 171.2(f) (49 C.F.R. § 

### 171.2(f)), in that Southwest Airlines accepted hazardous material for transportation in air commerce without exercising reasonable care by performing an inspection of the hazardous material.
b. Section 175.10(a) (16) (49 C.F.R. § 

### 175.10. (a) (16)), in that Southwest Airlines accepted hazardous material for transportation in air commerce without conducting a visual inspection including removing the batteries of a wheelchair.

c. Section 175.88(b) (49 C.F.R. § 

### 175.88.(b))), in that Southwest Airlines accepted hazardous material for transportation in air commerce of a package without orientation markings containing liquid hazardous materials without storing and loading the top closures in an upward position. NOW, THEREFORE, IT IS ORDERED, 

### pursuant to 49 U.S.C. § 

### 5123(a), that Southwest Airlines be and is hereby, assessed a civil penalty of $32,000.00.


### Southwest Airlines is hereby ordered to pay, immediately, the assessed amount by mailing or delivering a certified check, money order, or company check in the amount of $32,000.00 

### payable to the "Federal Aviation Administrationu addressed to:

2

# -- .--

Federal Aviation Administration DOT/FAA MMAC AMZ-350 PO BOX 25770 Oklahoma City, Oklahoma 73125-5082 ATTN: Sonny Rogers


### As an alternative method of payment, civil penalties may be paid with a credit card at the following website: http://www.pay.gov
The amount of civil penalty assessed in this order constitutes a debt owed to the United States. Southwest Airlines has now exhausted its right to seek review of the validity or amount of this debt. If this debt is not paid in full within 30 days of Southwest Airlines' receipt of this letter, the debt is delinquent.
For delinquent debts, federal regulation (49 C.F.R. § 

### 89.23) requires us to charge interest, from the date of this Order, at a fixed annual rate of 1.0%, 

### along with an administrative charge of $12 per month, representing our costs of administrative collection. Furthermore, if the full amount assessed is not paid in full within 120 days of Southwest Airlines' receipt of this letter, we are required to assess an additional penalty at an annual rate of 2.00%, 

### accruing from the date of delinquency. Delinquent debts may be reported to consumer reporting agencies or commercial credit bureaus, which could adversely affect Southwest Airlines' credit rating. Nonpayment of this debt may ultimately result in a referral to a collection agency, or the United States Department of Justice for enforced collection.



### 3

# •

Upon our receipt of Southwest Airlines' payment in the amount of $j2,000.00 Southwest Airlines may consider this matter closed.

ERIC E. ANDERSON Acting Regional Counsel Southwest Region

Archier, Attorney 222-5074. (Phone) 222-5945/5092 (Fdx)



### 4CERTIFICATE OF SERVICE


### I certify that this order has been sent on June 19, 2012 by Federal Express to:

Ja es Archier Mr. Jeffrey P. Novota Attorney General Counsel Department Southwest Airlines P.O. Box 36611, HDQ-4GC 2702 Love Field Drive Dallas, Texas 75235-1611

Dated: June 19, 2012 ederal Aviation Administration Office of the Regional Counsel Southwest Region 2601 Meacham Blvd., Fort Worth, Texas 76193-0007 (817) 222-5074

5U.S. Deportment of Transportation Federal Aviation Administration
January 24, 2012
Via Federal Express Southwest Region Arkansas, Louisiana, New Mexico, Oklahoma Texas

Mr. Michael R. Atadika Atadika & Atadika Attorneys and Counselors at Law Lincoln Building 60 East 42"d Street New York, New York 10165 

# •

Office of Regional Counsel, ASW-7 2601 Meacham Blvd. Fort Worth, TX 76137 (817) 222-5099 {817) 222-5945/5092 FAX

Re: Ethiopian Airlines, FAA Case No. 2011SW700182 

### ORDER ASSESSING CIVIL PENALTY
On November 10, 2011, the Federal Aviation Administration advised Ethiopian Airlines through a Notice of Proposed Civil Penalty that it proposed to assess a civil penalty in the amount of $195,000. On January 24, 2012, the Federal Aviation Administration advised Ethiopian Airlines through a Final Notice of Proposed Civil Penalty that it proposed to assess a civil penalty in the amount of $195,000.
In order avoid further litigation, the parties have agreed to settle this case for $160,000 and Ethiopian Airlines has agreed to waive any**furthe~** rights of appeal. This order constitutes a finding by the Federal Aviation Administration of the facts and regulatory violations contained herein. It is determined that:
1. On or about June 14, 2011, Ethiopian Airlines knowingly offered hazardous material to DHL Express for transportation by air from Addis Ababa, Ethiopia to Dallas, Texas.
2. The shipment consisted of a passenger service unit assembly with an undeclared oxygen generator.
3. The passenger service unit assembly with an undeclared oxygen generator was contained inside of one wooden box with metal framing.

# •

4. No identification markings or labels were on the exterior of the wooden box. 

### 5. Oxygen Generator, Chemical is classified as a hazardous material under the Department of Transportation Hazardous Material Regulations (49 C.F.R. § 

### 172.101).
6. 

### The proper shipping name for an unspent oxygen generator is "Oxygen generator, chemicalu. It is in DOT Hazard Division 5.1. It has an identification number of UN3356, and is in packing group II. Its proper labels are OXIDIZER and CARGO AIRCRAFT ONLY.
7. Ethiopia Airlines sent the shipment from Addis Ababa, Ethiopia to Dallas, Texas via DHL Express air waybill number 1304455353.
8. The consignee was Boeing Dallas Service Center, 2750 Regent Blvd., DFW Airport, Texas 75261.
9. At all times mentioned herein, the shipment was not accompanied by hazardous materials shipping papers. 10. At all times mentioned herein, the shipment was not packaged in specification packaging, did not contain markings or labels to identify the contents or handling precautions. Further, there was no evidence that the packaging had been approved for transporting an oxygen generator. 11. At all times mentioned herein, the shipment was not properly marked with the appropriate approval authorization number on the outside of the package. 12. The Ethiopian Airline's HAZMAT employee who offered the shipment for transportation by air was not provided with the training required by subpart H of Part 172 of the hazardous material regulations.
13. At all times mentioned herein, the shipment was not properly classed, described, packaged, marked, labeled, and in a condition for shipment as required or authorized by applicable requirements of the hazardous material regulations or an exemption or special permit, approval, or registration issued under the hazardous material regulations.
14. At all times mentioned herein, Ethiopian Airlines offered an oxygen generator for shipment by air and failed to: (1) ensure
2

# • •

that it was offered in conformance with the conditions of the approval; (2) maintain a copy of the approval at each facility where the chemical oxygen generator is packaged; and (3) mark the approval number on the outside of the package.
15. Ethiopian Airlines offered hazardous material for shipment by air and failed to include in the shipping papers an emergency response telephone number or the identity of the person (by name or contract number) who has a contractual agreement with the service provider, as prescribed in subpart G of Part 172.
16. Ethiopian Airlines offered the above-described shipment of hazardous material for transportation by air when the shipping papers did not include: (a) the identification number prescribed for the material; (b) the proper shipping name prescribed for the material; (c) the hazard class or division number prescribed for the material; (d) the packing group, in Roman numerals, prescribed for the material; and; (e) the total net mass per package or gross mass per package; (f) total quantity of hazardous material;
(g) the number and type of packages comprising the shipment of hazardous materials;
17. Ethiopian Airlines offered hazardous material for transportation by air and failed to provide a statement on the shipping paper that the shipment was within the limitations prescribed for either passenger and cargo aircraft or cargo aircraft only. 18. Ethiopian Airlines offered hazardous material for transportation by air and failed to certify by printed certification, in the manner allowed by 49 C.F.R. §§ 172.204(a) (1) or 172.204(a) (2) or§ 172.204(c) (1} that the material was offered for transportation in accordance with the hazardous material regulations.

3

# • •

19. Ethiopian Airlines offered hazardous material for transportation by air and failed to provide two copies of the certification showing that the materials were in accordance with the certification set forth in§ 172.204(a)(1),(2) or§ 172.204 (c) (1) of the hazardous material regulations.
20. Ethiopian Airlines offered hazardous material for transportation by air and failed to add to the certification required in this section the following statement: "I declare that all of the applicable air transport requirements have been met."
21. Ethiopian Airlines offered hazardous material for transportation by air and failed to obtain the certifications required by (a) or (c) of this section which require legibly signed certification by a principal, officer, partner, or employee of the shipper or his agent. 22. Ethiopian Airlines offered hazardous material for transportation by air failed to mark the package with the proper shipping name and identification number (preceded by "UN", "NA 11 

### or "ID," as appropriate) for the material as shown in the§ 172.101 Table.
23. Ethiopian Airlines offered hazardous material for shipment by air and failed to label the package or containment device with the label specified in Section 172.101 Table and Subpart E of the hazardous material regulations.
24. Ethiopian Airlines offered hazardous material for shipment by air which was authorized on cargo aircraft only failed to label the package with a CARGO AIRCRAFT ONLY label specified in section 172.488 of subpart E (Labeling) of the HMR. 25. Ethiopian Airlines offered hazardous material for shipment by air and failed to make emergency response information immediately available for use at all times the hazardous material was present. 26. Ethiopian Airlines offered hazardous material for shipment by air offered hazardous material for transportation by air and failed to make emergency response information, including emergency response telephone number, required by this subpart immediately available to any person who, as a representative of a Federal, State, or local government agency, responds to an

4

# •

incident involving a hazardous material, or is conducting an investigation which involves a hazardous material.
27. At all times mentioned herein, Ethiopian Airlines offered the above-described shipment of hazardous materials for transportation by air, without providing an emergency response information conforming to Subpart G, 24-hour emergency telephone number and emergency response information complying with section 172. 602 (a) (1)- (7)

. 28. Ethiopian Airlines offered hazardous material for transportation by air and failed to provide emergency response information immediately available for use away from the package containing the hazardous material.
29. Ethiopian Airlines offered hazardous material for transportation by air when emergency response information was not presented on a shipping paper, in a document other than the shipping paper, related to the information on a shipping paper, a written notification to pilot in command, or a dangerous cargo manifest, in a separate document.
30. Ethiopian Airlines failed to provide an emergency response telephone number (including area code) for use in the event of an emergency involving hazardous material that is monitored at all times that the material is in transportation, including storage incidental to transportation.
31. Ethiopian Airlines offered hazardous material for transportation by air and failed to provide an emergency response telephone number of a person knowledgeable of the hazardous material being shipped and who has comprehensive emergency response and incident mitigation information for that material, or has immediate access to a person possessing such knowledge and information.
32. Ethiopian Airlines offered hazardous material for transportation by air and failed to provide an emergency response telephone number, for use in the event of an emergency involving the hazardous material, and entered on a shipping paper immediately following the description of the hazardous material required by subpart C of this part, or entered once on the shipping paper .in a clearly visible location.
33. Ethiopian Airlines offered hazardous material for transportation by air and failed to train each HAZMAT employee.

5

# e-

\


### 34. Ethiopian Airlines offered hazardous material for transportation by air and failed to class and describe the hazardous material in accordance with parts 172 and 173 of Subpart B, Preparation of Hazardous Materials for Transportation.
35. By 

### reason of the foregoing facts and circumstances, Ethiopian Airlines violated the following sections of the Department of Transportation Hazardous Materials Regulations (49 C.F.R. § 

### 171 

### et.seq.

a. Section 171.2(e) (49 C.F.R. § 

### 171.2(e)), in that it offered hazardous material for transportation in commerce when the material was not properly classed, described, packaged, marked, labeled, and in a condition for shipment as required or authorized by applicable requirements of the hazardous material regulations or an exemption or special permit, approval, or registration issued under the hazardous material regulations. b. Section 172.102(c)(1), (49 C.F.R. § 

### 172.102(c)) Special Provision 60, which states each person who offers a chemical oxygen generator for transportation after September 30, 1997, shall: (1) 

### ensure that it is offered in conformance with the conditions of the approval; (2) maintain a copy of the approval at each facility where the chemical oxygen generator is packaged; and (3) mark the approval number on the outside of the package.

c. Section 172.200(a), (49 C.F.R. § 

### 172.200(a)) which requires that each person who offers a hazardous material for transportation shall describe the hazardous material on shipping papers in the manner required by Subpart C of Part 172 of the HMR (Shipping Papers)

. d. Section 172.201(d), (49 C.F.R. § 

### 172.201(d)) which requires that each person who offers hazardous material for transportation must include in shipping papers an emergency response telephone number and if utilizing an emergency response information telephone number service provider, identify the person (by name or contract number) who has a contractual agreement with the service provider, as prescribed in subpart G of Part 172.

e. Section 172.202(a) (1), ((49 C.F.R. § 

### 172.202(a) (1)) in that it offered hazardous material for transportation in air commerce when the required hazardous material description on the shipping papers did not include the identification number

6

### prescribed for the material as shown in Column 4 of the § 172.101 Table.
f. 

### Section 172.202(a) (2), (49 C.F.R. § 172.202(a) (2)) in that it offered hazardous material for transportation in air commerce when the required hazardous material description on the shipping papers did not include the proper shipping name prescribed for the material in Column 2 of the § 172.101 Table.
g. Section 172.202(a) (3), (49 C.F.R. § 172.202(a) (3)) in that it offered hazardous material for transportation in air commerce when the required shipping papers did not include the hazard class or division number prescribed for the material, as shown in Column (3) in the Hazardous Materials Table, referenced in section 172.101. h. Section 172.202(a) (4) (49 C.F.R. § 172.202(a) (4)) in that it offered hazardous material for transportation in air commerce when the required shipping papers did not include the Packing Group, in Roman numerals, prescribed for the material in Column 5 of the§ 172.101 Table.
i. 

### Section 172.202(a) (6) (49 C.F.R. § 172.202(a) (6)) in that it offered hazardous material for transportation in air commerce and failed to describe on the shipping papers the total net mass per package, unless a gross mass is indicated in Columns (9A) or (9B) of the§ 172.101 Table in which case the total gross mass per package must be shown; or for class 7 materials, the quantity of radioactive material must be shown by activity. j. 

### Section 172.202(a) (7) (49 C.F.R. § 172.202(a) (7)) in that it offered hazardous material for transportation in air commerce and failed to describe on the shipping papers the number and type of packages by description of the package. k. Section 172.203(f), (49 C.F.R. § 172.203(f)) which states that a statement indicating that the shipment was within the limitations prescribed for either passenger and cargo aircraft or cargo aircraft only must be entered on the shipping papers. 1. Section 172.204(a) (49 C.F.R. § 172.204(a)) in that it offered hazardous material for transportation by air and failed to certify by printed certification, in the manner allowed by 49 C.F.R. §§ 172.204(a) (1) or 172.204(a) (2) or§ 172.204(c) (1) that

7

# •

the material was offered for transportation in accordance with the hazardous material regulations.

m. Section 172.204(c) (2) (49 C.F.R. § 172.204(c) (2) in that it offered hazardous material for transportation by air when it failed to provide two copies of the certification showing that the materials were in accordance with the certification set forth in§ 172.204(a) (1) (2) or§ 172.204(c) (1) of the hazardous materials regulations.

n. Section 172.204(c) (3), (49 C.F.R. § 

### 172.204(c) (3) in that it offered hazardous material for transportation by air when it failed to add to the certification required in this section the following statement: "I declare that all of the applicable air transport requirements have been met.u

o. Section 172.204 (d), (49 C.F.R. § 172.204 (d)) in that it offered hazardous material for transportation by air and failed to obtain the certifications required by (a) or (c) of this section which require legibly signed certification by a principal, officer, partner, or employee of the shipper or his agent.
p. Section 172.300 (49 C.F.R. § 

### 172.300), which requires that each person offering a hazardous material for transportation to properly mark each package, freight container, and transport vehicle containing the hazardous material in the manner required by the hazardous material regulations.
q . Section 1 7 2 . 301 (a) ( 4 9 C . F . R . § 

### 1 7 2 . 30 1 (a) ) in that it offered a hazardous material for transportation in air commerce in non-bulk packaging and failed to mark the package with the proper shipping name and identification number (preceded by "UN", "NA" or "ID," as appropriate) for the material as shown in the § 

### 172.101 Table.

r. Section 172.400(a) (49 C.F.R. § 

### 172.400(a)) in that it offered hazardous material requiring labeling under the hazardous material regulations for transportation in air commerce and failed to label the package or containment device with the label specified in Section 172.101 Table and Subpart E of the hazardous material regulations

s. Section 172.402(c), which states that each person who offers for transportation or transports by aircraft a package containing a hazardous material which is authorized on cargo aircraft only shall label the package with a CARGO AIRCRAFT ONLY


### 8

# -- \


### label specified in section 172.488 of subpart E (Labeling) of the Hl'1R.


### t. Section 172.600 (49 C.F.R. § 

### 172.600)), which requires that each person offering a hazardous material for transportation to provide and maintain emergency response information during transportation and at the facility where hazardous materials are loaded for transportation, stored incidental to transportation or otherwise handled during any phase of transportation.

u. Section 172.600(c) (1)) 

### (49 C.F.R. § 

### 172.600(c) (1)) in that it offered hazardous material for transportation by air and failed to make emergency response information immediately available for use at all times the hazardous material was present.

v. Section 172.600(c) (2)) (49 C.F.R. § 

### 172.600(c) (2)) in that it offered hazardous material for transportation by air and failed to make emergency response information, including emergency response telephone number, required by this subpart immediately available to any person who, as a representative of a Federal, State, or local government agency, responds to an incident involving a hazardous material, or is conducting an investigation which involves a hazardous material.

w. Section 172.602(a), in that it offered hazardous material for transportation by air and failed to make the following information available: (1) the basic description and technical name of the hazardous material as required by subsections 172.202 and 172.203(k), the ICAO Technical Instructions, the IMDG Code, or the TOG Regulations, as appropriate; (2) immediate hazards to health; (3) risks of fire or explosion; (4) immediate precautions to be taken in the event of an accident or incident; (5) immediate methods for handling fires; (6) initial methods for handling spills or leaks in the absence of fire; and (7) preliminary first aid measures.

x. Section 172.602(b) (2)) (49 C.F.R. § 

### 172.602(b) (2)) in that it offered hazardous material for transportation by air and failed to provide an emergency response information immediately available for use away from the package containing the hazardous material.
y. Section 172.602(b) (3) (i)) (49 C.F.R. § 

### 172.602(b) (3) (i) in that it offered hazardous material for shipment by air when emergency response information was not presented on a shipping

9

# • •

paper, in a document other than the shipping paper, related to the information on a shipping**p~per,** 

### a written notification to pilot in command, or a dangerous cargo manifest, in a separate document.

z. Section 172.604(a) (1)) (49 C.F.R. § 

### 172.604(a) (1)) 

### in that it offered hazardous material for shipment by air and failed to provide an emergency response telephone number (including area code) for use in the event of an emergency involving hazardous material that is monitored at all times that the material is in transportation, including storage incidental to transportation.

aa. Section 172.604(a) (2)) (49 C.F.R. § 

### 172.604(a) (2)) in that it offered hazardous material for transportation by air and failed to provide an emergency response telephone number of a person knowledgeable of the hazardous material being shipped and who has comprehensive emergency response and incident mitigation information for that material, or has immediate access to a person possessing such knowledge and information.
bb. Section 172.604(a) (3)) (49 C.F.R. § 

### 172.604(a) (3)) in that it offered hazardous material for transportation by air and failed to provide an emergency response telephone number, for use in the event of an emergency involving the hazardous material, and entered on a shipping paper immediately following the description of the hazardous material required by subpart C of this part, or entered once on the shipping paper in a clearly visible location.

cc. Section 172.702(a)) (49 C.F.R. § 

### 172.702(a)) in that it offered hazardous material for transportation by air and failed to train the HAZMAT employee who offered the shipment. dd. Section 173.1(b) (49 C.F.R. § 

### 173.1(b), which prohibits the shipment of hazardous material by air that was not packed in packaging specified in Part 173.

ee. Section 173.22(a) (1)) (49 C.F.R. § 

### 173.22(a) (1)) in that it offered hazardous material for shipment by air and failed to class and describe the hazardous material in accordance with parts 172 and 173 of Subpart B, Preparation of Hazardous Materials for Transportation. NOW, THEREFORE, IT IS ORDERED, 

### pursuant to 49 U.S.C. § 

### 5123(a), that Ethiopian Airlines be and is hereby, assessed a civil penalty of $160,000.00.

10

# •

Ethiopian Airlines is hereby ordered to pay, immediately, the assessed amount by mailing or delivering a certified check, money order, or company check in the amount of $160,000.00 

### payable to the "Federal Aviation Administrationn addressed to: Federal Aviation Administration DOT/FAA MMAC AMZ-350 PO BOX 25770 Oklahoma City, Oklahoma 73125-5082 ATTN: Sonny Rogers


### As an alternative method of payment, civil penalties may be paid with a credit card at the following website: http://www.pay.gov
The amount of civil penalty assessed in this order constitutes a debt owed to the United States. Ethiopian Airlines has now exhausted its right to seek review of the validity or amount of this debt. If this debt is not paid in full within 30 days of Ethiopian Airlines' receipt of this letter, the debt is delinquent.
For delinquent debts, federal regulation (49 C.F.R. § 

### 89.23) requires us to charge interest, from the date of this Order, at a fixed annual rate of 1.0%, 

### along with an administrative charge of $12 per month, representing our costs of administrative collection. Furthermore, if the full amount assessed is not paid in full within 120 days of Ethiopian Airlines' receipt of this letter, we are required to assess an additional penalty at an annual rate of 2.50%, 

### accruing from the date of delinquency. Delinquent debts may be reported to consumer reporting agencies or commercial credit bureaus, which could adversely affect Ethiopian Airlines' credit rating. Nonpayment of this debt may ultimately result in a referral to a collection agency, or the United States Department of Justice for enforced collection.

I I

# ••

Upon our receipt of Ethiopian Airlines' payment in the amount of $160,000.00 

### Ethiopian Airlines may consider this matter closed.

DAVID DONNELL 

### Regional Counsel 

### Southwe)Region

By:

# /111¢1**~ Jam~s**  Archier, Attorney (8/7) 222-5074 

### (Phone)**~17)** 222-5945/5092 

### (Fax) 

# (/

cc: FAA/MMAC Accounts Receivable

CERTIFICATE OF SERVICE


### I certify that this order has been sent on January 24, 2012 

### by Federal Express to:
Mr. Michael R

.. Atadika Atadika & Atadika Attorneys and Counselors at Law Lincoln Building 60 

### East 42nd 

### Street New York, New York 10165

### ~/' 

# lft?j**~£_--~~~~--~~--~L--** 

### ames Archier ·/ Fed>ral Aviation Administration 

### Qifice of the Regional Counsel / /'Southwest Region**~** 2601 

### Meacham Blvd., Fort Worth, Texas 76193-0007 (817) 222-5074

12 

### Dated: January 24, 2012U.S. Department of Transportation Federal Aviation Administration 

# •

Southwest Region Arkansas, Louisiana, New Mexico, Oklahoma Texas

CERTIFIED MAIL- RETURN RECEIPT REQUESTED Cynthia A. Chandler-Snell, Esq. Senior Attomey Regulatory Affairs Legal Department Federal Express Corporation 3620 Hacks Cross Road Building B, 3rd Floor Memphis, TN 38125
Re: EIR 2011SW700093 (HazMat) Office of Regional Counsel 2601 Meacham Blvd Fort Worth, TX 76137 (817) 222-5099 (817) 222-5945/5092 FAX



### ORDER ASSESSING CIVIL PENALTY
On or about July 15, 2011, Federal Express Corporation (FedEx) was advised through a Notice ofProposed Civil Penalty that the Federal Aviation Administration (FAA) proposed to assess a civil penaltyin the amount of$32,500. On October 12, 2011 an infonnal conference was held between FedEx and the FAA following which the parties ultimately agreed to settle the agency's hazardous materials enforcement matter for the sum of $24,500. THEREFORE, it has been determined that:
1. Federal Express Corporation (FedEx), a U.S. all-cargo carrier, holds Air Carrier Operating Certificate No. FDEA140A with operation specifications authorizing it to operate in air transportation under Part 121 ofthe Federal Aviation Regulations.
2. On or about February 1, 2011, a Federal Aviation Administration (FAA) Special Agent conducted an inspection at FedEx's facility located at 1500 Westpark Drive, Little Rock, Arkansas.
3. During review ofFedEx's shippers' declaration retention file, the Special Agent discovered that FedEx accepted shipments ofhazardous materials from Environmental Services Company, Inc. for transportation in air commerce when the shipments were not prepared for shipment in accordance with the Department ofTransportation Hazardous Materials Regulations (HMR) as follows:

# •

a. On or about October 18, 2010, FedEx accepted a shipment ofPotassium pennanganate under assigned Air Waybill 796345167105. Potassium pem1anganate is in Hazard Class 5.1 (Oxidizer) and has an assigned identification number UN1490. However, the shipping paper improperly identified the material hazard class as 8 (CoiTosive material). 2



### b. On or about October 18, 2010, FedEx accepted a shipment ofNitric Acid (other than red fuming, 5% concentration) under assigned Air Waybill 794012892455. Nitric acid is in Hazard Class 8 (CmTosive material) and has an assigned identification number UN2031. The quantity ofthe material shown on the shipping papers was 2.5 L. 

### The shipping papers improperly showed the quantity ofthe material to be within the limit allowed for transportation aboard passenger aircraft, i.e., 1

### L, when, in fact, the quantity ofthe material exceeded the limit allowed for transportation on passenger aircraft.

c. On or about October 18,2010, FedEx accepted a shipment ofNitric Acid (other than red fuming, 5% concentration) under assigned Air Waybill 796345436939. Nitric acid is in Hazard Class 8 (Corrosive material) and has an assigned identification number UN2031. The quantity ofthe material shown on the shippingpapers was 2.5 L. 

### The shipping papers improperly showed the quantity ofthe material to be within the limit allowed for transpmiation aboard passenger aircraft, i.e., 1

### L, when, in fact, the quantity ofthe material exceeded the limit allowed for transportation on passenger aircraft.
d. On or about October 18, 2010, FedEx accepted a shipment ofNitric Acid (other than red fuming, 5% concentration) under assigned Air Waybill 794012818136. Nitric acid is in Hazard Class 8 (Corrosive material) and has an assigned identification number UN2031. The quantity ofthe material shown onthe shippingpapers was 2.5 L. 

### The shipping papers improperly showed the quantity ofthe material to be within the limit allowed for transportation aboard passenger aircraft, i.e., 1 

### L, when, in fact, the quantity ofthe material exceeded the limit allowed for transportation on passenger aircraft.

e. On or about October 18, 2010, FedEx accepted a shipment ofNitric Acid (other thanred fuming, 5% concentration) under assigned Air Waybill 794012759383. Nitric acid is in Hazard Class 8 (Corrosive material) and has an assigned identification number UN2031. The quantity ofthe material shown on the shippingpapers was 2.5 L. 

### The shipping papers improperly showed the quantity ofthe material to be within the limit allowed for transportation aboard passenger aircraft, i.e., 1 

### L, when, in fact, the quantity ofthe material exceeded the limit allowed for transportation on passenger aircraft. f. 

### On or about October 25, 2010, FedEx accepted a shipment ofFlammable liquid, toxic, n.o.s. (Acetone/Toluene) under assigned Air Waybill 796375297331. Flammable liquid, toxic, n.o.s. has an assigned identification number UN1992./ 

# •

The shipping papers improperly identified the number as 1993 and improperly omitted "UN"before the number. ,.., .)



### g. On or about October 25, 2010, FedEx accepted a shipment ofFlammable liquid, toxic, n.o.s. (Acetone/Toluene) under assigned AirWaybill 796375297331. Flammable liquid, toxic, n.o.s. has an assigned identification number UN1992. Flammable liquid, toxic, n.o.s. is in Hazard Class 3 (Flammable and combustible liquid) and the shipping paper identified the material as being in Packing Group II. The shipping paper improperly failed to include the required toxic subsidiary class or division number (6.1) in parentheses following the primary hazard class number.
h. On or about October 25, 2010, FedEx accepted a shipment ofFlammable liquid, toxic, n.o.s. (Acetone/Dichloromethane) under assigned Air Waybill 796375182575. Flammable liquid, toxic, n.o.s. as an assigned identification number UN1992. The shipping papers improperly identified the number as 1993 and improperly omitted "UN" before the numbers.

1. 

### On or about October 25, 2010, FedEx accepted a shipment ofFlammable liquid, toxic, n.o.s. (Acetone/Dichloromethane) under assigned Air Waybill 796375182575: Flammable liquid, toxic, n.o.s. has an assigned identification number UN1992. Flammable liquid, toxic, n.o.s. is in Hazard Class 3 (Flammable and combustible liquid) and the shipping paper identified the material as being in Packing Group II. The shipping paper improperly failed to include the required toxic subsidiary class or division number (6.1) in parentheses following the primary hazard class number. Byreason ofthe foregoing, FedEx violated the following Department ofTransportation Hazardous Materials Regulations:

a. Section 175.3 [49 C.P.R.§ 175.3) in that it accepted hazardous materials for transportation aboard an aircraft when that material had not been prepared for shipment in accordance with the HMR.

b. Section 175.30(a)(l) [49 C.P.R. § 175.30(a)(l)] inthat it accepted hazardous material for transportation aboard an aircraft and failed to ensure that the materials were authorized and within the quantity limitations specified for caniage aboard an aircraft according to § 

### 172.101 ofthe HMR.

c. Section 175.30(a)(2) [49 C.P.R. § 175.30(a)(2)] in that it accepted hazardous material for transportation aboard an aircraft and failed to ensure that the material was described on a shippingpaper in accordance with part 172 ofthe HMR.

# • 4 NOW, THEREFORE, IT IS ORDERED, 

### pursuant to Section 5123(a) ofthe federal hazardous materials transpmiation law, (49 U.S.C. § 

### 5123(a)), that Fed Ex be, and hereby is, assessed a civil penalty in the amount of$24,500.


### Fed Ex is directed to pay the assessed amount by mailing or delivering a certified check, money order, or company check in the amount of$24,500 

### payable to the "Federal Aviation Administration" addressed to:
Federal Aviation Administration Mr. Sonny Rogers, FAAIMMAC/AR, AMZ-350-SW P.O. Box 25770 Oklahoma City, OK 73125-4915
Please be sure to indicate the Case Number on the front ofyour check.


### We also accept payment by VISA orMasterCard. Ifyou choose to make payment using the charge card method, check the appropriate box on the attached reply form and include the cardholder's name and credit card number. In the alternative, you maypayyour civil penalty with a credit card over the Intemet. To pay electronically, visit the web site at https://www.pay.gov. Forquestions regarding electronic payments please contact FAA Account Receivable office at 1-405-954-4719
The amount ofcivil penalty assessed in this Order constitutes a debt owed to the United States. Ifthis debt is not paid within 30 days ofFed Ex's receipt ofthis letter, the debt is delinquent.
For delinquent debts, federal regulation (49 C.F.R. § 

### 89.23) requires us to charge interest, from the date ofthis Order, at a fixed annual rate of1.0%, 

### along with an administrative charge of$12 per month, representing our costs ofadministrative collection. Furthermore, ifthe full amount assessed is not paid in full within 120 days ofreceipt ofthis letter, we are required to assess an additional penalty at an annual rate of2.50%, 

### accruing from the date ofdelinquency.
DAVID L. DONNELL 

### Regional Counsel Southwest Region

By 

### ric E. Anderson Attorney 817.222.5078 817.222.5092 (FAX)

### CERTIFICATE OF SERVICE

I certify that this Order Assessing Civil Penalty has been sent this date via certified mail, return receipt requested, to:

Marquitt obinson Paralegal Specialist December 5, 2011 Mr. Cynthia A. Chandler-Snell, Esq. Senior Attorney Regulatory Affairs Legal Affairs Federal Express Corporation 3620 Hacks Cross Road Building B, 3rd 

### Floor Memphis, TN 38125U.S. Department of Transportation Federal Aviation Administration

June 15, 2011
Via Federal Express Southwest Region Arkansas, Louisiana, New Mexico, Oklahoma Texas

Mr. Barry Brown Associate General Counsel Operations 

### & Environment Southwest Airlines P.O. Box 36611 2702 Love Field Drive Dallas, Texas 75235-1611 Office of Regional Counsel, ASW-7 2601 Meacham Blvd. Fort Worth, TX 76137 (817) 222-5099 (817) 222-5945/5092 FAX

Re: Southwest Airlines Company, FAA Case No. 2010SW700184 

### ORDER ASSESSING CIVIL PENALTY
On February 23, 2011, Southwest Airlines Company was advised through an Amended Notice of Proposed Civil that the Federal Aviation Administration proposed to assess a civil penalty in the amount of $78,000.00.
In order to avoid further litigation, the parties have agreed to settle this case for $62,000.00 and Southwest Airlines Company has agreed to waive any further rights of appeal. This order constitutes a finding by the Federal Aviation Administration of the facts and regulatory violations contained herein. It is determined that:
1. On or about June 30, 2010 Southwest Airlines Company ("Southwest") offered FedEx Corporation a package containing hazardous material for transportation by air from Dallas, Texas to Loves Park, Illinois.
2. The shipment consisted of an aircraft main engine fuel control unit that contained fuel. Tag number 303273 was attached to the aircraft main engine fuel control unit. Written on this tag number 303273 was the language "NEEDS TO BE DRAINED".
3. The aircraft main engine fuel control unit was inside of a fiberboard box.

### 4. An aircraft main engine fuel control unit that contains fuel is classified as a hazardous material under the Department of Transportation Hazardous Material Regulations (49 C.F.R. § 172.101).
5. The proper shipping name for an aircraft main engine fuel control unit that contains fuel is Dangerous Goods in Machinery. It is a hazard class 9. Its UN identification number is UN3363.
6. At all times mentioned herein, the above described box was not marked with the proper shipping name or UN identification number of the hazardous material.
7. At all times mentioned herein, the above described box was not labeled with the proper hazardous material labels, was not accompanied by a shipper's declaration of dangerous goods, shipper's certification or other proper shipping documents containing the information, including emergency response information, required by the hazardous material regulations, and was not otherwise in a condition for transportation by air as required by the hazardous material regulations. 8. The shipment was sent via FedEx "Express Saver" US air bill number 9757 0088 0799. The air bill did not identify the contents of the package.
9. The shipper was listed as Shipping Dept., SWA/0204043, 2630 Shorecrest Drive, Dallas, Texas 75235.
10. The consignee was Rocky Garst, Woodward Governor Co., Aircraft Product Service Center, 5001 North 2nct Street, Loves Park, Illinois 61111-5808. 11. The shipment was discovered leaking at the FedEx Alliance Regional Cargo Sort Center in Fort Worth, Texas. 12. Southwest offered hazardous material for transportation by air when the material was not properly classed, described, packaged, marked, labeled, and in a condition for shipment as required or authorized by applicable requirements of the hazardous material regulations.
13. Southwest offered hazardous material for transportation by air when the shipping papers did not include: (a) the identification number prescribed for the material as shown in Column (4) of the§ 172.101



### 2table; (b) the proper shipping name prescribed for the material in Column (2) of the § 172.101 table; (c) the hazard class or division number prescribed for the material, as shown in Column (3) of the § 172.101 table; (d) the packing group in Roman numerals, as designated for the hazardous material in Column (5) of the§ 172.101 table; (e) the total net mass per package, must be shown unless a gross mass is indicated in Columns (9A) or (9B) of the § 172.101 table in which case the total gross mass per package must be shown; (f) An estimate of the individual total quantities or an estimate of the individual total quantity of dangerous goods in its liquid state contained in the article. (g) the number and type of packages must be indicated.
14. Southwest offered hazardous material for transportation by air and failed to certify by printed certification, in the manner allowed by 49 C.F.R. §§ 172.204(a) (1), (2) or 172.204(c) (1), that the material was offered for transportation in accordance with the hazardous material regulations. 15. Southwest offered hazardous material for transportation by air when it failed to provide two copies of the certification showing that the materials were in accordance with the certification set forth in § 172.204 (a) (1), (2) or § 172.204(c) (1) of the hazardous materials regulations.
16. Southwest offered hazardous material for transportation in air commerce in non-bulk packaging and failed to mark the package with the proper shipping name and identification number for its contents. 17. Southwest offered hazardous material for transportation by air and failed to label the package or containment device with the label specified in Section 172.101 (49 C.F.R. § 172.101).



### 318. Southwest offered hazardous material for transportation by air and failed to make emergency response information immediately available for use at all times the hazardous material was present. 19. Southwest offered hazardous material for transportation by air and failed to make emergency response information, including an emergency response telephone number, required by this subpart immediately available to any person who, as a representative of a Federal, State, or local government agency, responds to an incident involving a hazardous material, or is conducting an investigation, which involves a hazardous material.
20. Southwest offered hazardous material for transportation by air and failed to provide and maintain emergency response information that includes the minimum information set forth in this section, 172.602(a) (1-7)).
21. Southwest offered hazardous material for transportation by air and failed to provide an emergency response telephone number immediately available for use away from the package containing the hazardous material.
22. Southwest offered hazardous material for shipment by air when emergency response information was not presented on a shipping paper. 23. Southwest offered hazardous material for shipment by air and failed to provide an emergency response telephone number (including area code) for use in the event of an emergency involving hazardous material that is monitored at all times that the material is in transportation, including storage incidental to transportation.
24. Southwest offered hazardous material for shipment by air and ·failed to provide an emergency response telephone number of a person knowledgeable of the hazardous material being shipped and who has comprehensive emergency response and incident mitigation information for that material, or has immediate access to a person possessing such knowledge and information.
25. Southwest offered hazardous material for transportation by air and failed to provide an emergency response telephone number, for use in the event of an emergency involving the hazardous material, and entered on a shipping paper immediately following the description of the hazardous material required by

4

### subpart C of this part, or entered once on the shipping paper in a clearly visible location.
26. Southwest offered hazardous material for shipment by air and failed to class and describe the hazardous material in accordance with parts 172 and 173 of Subpart B, Preparation of Hazardous Materials for Transportation.
27. Southwest offered hazardous material for shipment by air and failed to use packaging that was designed, constructed, maintained, filled, its contents so limited, and closed so that under conditions normally incident to transportation there was no identifiable release of hazardous materials to the environment.
28. By reason of the above, Southwest violated the following Department of Transportation Hazardous Materials Regulations (Title 49 of the Code of Federal Regulations):

a. Section 171.2(e) (49 C.F.R. § 171.2(e)), in that Southwest offered hazardous material for transportation by air in commerce when the material was not properly classed, described, packaged, marked, labeled, and in a condition for shipment as required or authorized by applicable requirements of the hazardous material regulations. b. Section 172.200(a) (49 C.F.R. § 172.200(a)), which requires that each person offering a hazardous material for transportation to properly describe the hazardous material on the shipping papers.

c. Section 172.202(a) (1) (49 C.F.R. § 172.202(a) (1)) in that it offered hazardous material for transportation in air commerce when the required hazardous material description on the shipping papers did not include the identification number prescribed for the material as shown in Column 4 of the§ 172.101 Table. d. Section 172.202(a) (2) (49 C.F.R. § 172.202(a) (2)) in that it offered hazardous material for transportation in air commerce when the required hazardous material description on the shipping papers did not include the proper shipping name prescribed for the material in Column 2 of the § 172.101 Table.

e. Section 172.202(a) (3) (49 C.F.R. § 

### 172.202(a) (3)) in that it offered hazardous material for transportation in air commerce when the required shipping papers did not include the hazard class or division number prescribed for the material, as shown

5in Column (3) in the Hazardous Materials Table, referenced in section 172.101.
f. Section 172.202(a) (4) (49 C.F.R. § 172.202(a) (4)) in that it offered hazardous material for transportation in air commerce when the required shipping papers did-not include the Packing Group, in Roman numerals, prescribed for the material in Column 5 of the§ 172.101 Table.
g. Section 172.202(a) (6) (49 C.F.R. § 172.202(a) (6)) in that it offered hazardous material for transportation in air commerce and failed to describe on the shipping papers the total net mass per package, unless a gross mass is indicated in Columns (9A) or (9B) of the§ 172.101 Table.
h. Section 172.202(a) (6) (iii)) (49 C.F.R. § 172.202(a) (6)(iii)) in that it offered hazardous material for transportation in air commerce and failed to describe on the shipping papers the total net mass per package, unless a gross mass is indicated in Columns (9A) or (9B) of the § 172.101 Table.
i. Section 172.202(a)(7) (49 C.F.R. § 172.202(a)(7)) in that it offered hazardous material for transportation in air commerce and failed to describe on the shipping papers the number and type of packages. j. Section 172.204(a) (49 C.F.R. § 172.204(a)) in that it offered hazardous material for transportation by air and failed to certify by printed certification, in the manner allowed by 49 C.F.R. §§ 172.204(a) (1) or 172.204(a) (2), or 172.204(c) (1) that the material was offered for transportation in accordance with the hazardous material regulations. k. Section 172.204(c) (2) (49 C.F.R. § 172.204(c) (2) in that it offered hazardous material for transportation by air when it failed to provide two copies of the certification showing that the materials were in accordance with the certification set forth in§ 172.204 (a) (1), (2) or§ 172.204 (c) (1) of the hazardous materials regulations.
l. Section 172.300 (49 C.F.R. § 172.300), which requires that each person offering a hazardous material for transportation to properly mark each package, freight container, and transport vehicle containing the hazardous material.

m. Section 172.301(a) (49 C.F.R. § 172.301(a)) in that it offered a hazardous material for transportation in air commerce

6in non-bulk packaging and failed to mark the package with the proper shipping name and identification number for its contents.

n. Section 172.400(a) (49 C.F.R. § 172.400(a)) in that it offered hazardous material requiring labeling under the hazardous material regulations for transportation in air commerce and failed to label the package or containment device with the label specified in Section 172.101 (49 C.F.R. § 172.101).

o. Section 172.600 (49 C.F.R. § 172.600)), which requires that each person offering a hazardous material for transportation to provide and maintain emergency response information during transportation and at the facility where hazardous materials are loaded for transportation, stored incidental to transportation or otherwise handled during any phase of transportation.
p. Section 172.600(c) (1)) (49 C.F.R. § 172.600(c) (1)) in that it offered hazardous material for transportation by air and failed to make emergency response information immediately available for use at all times the hazardous material was present.
q. Section 172.600(c) (2)) (49 C.F.R. § 172.600(c) (2)) in that it offered hazardous material for transportation by air and failed to make emergency response information, including emergency response telephone number, required by this subpart immediately available to any person who, as a representative of a Federal, State, or local government agency, responds to an incident involving a hazardous material, or is conducting an investigation which involves a hazardous material.

r. Section 172.602(a) (1-7)) (49 C.F.R. § 172.602(a)) in that it offered a hazardous material for transportation by air and failed to provide and maintain emergency response information that includes the minimum information set forth in this section, 172.602(a) (1-7)).

s. Section 172.602(b) (2)) (49 C.F.R. § 172.602(b) (2)) in that it offered hazardous material for transportation by air and failed to provide an emergency response telephone number immediately available for use away from the package containing the hazardous material.
t. Section 172.602(b) (3) (i)) (49 C.F.R. § 172.602(b) (3) (i) in that it offered hazardous material for shipment by air when



### 7emergency response information was not presented on a shipping paper.

u. Section 172.604(a) (1)) (49 C.F.R. § 172.604(a) (1)) in that it offered hazardous material for shipment by air and failed to provide an emergency response telephone number (including area code) for use in the event of an emergency involving hazardous material that is monitored at all times that the material is in transportation, including storage incidental to transportation.

v. Section 172.604(a) (2)) (49 C.F.R. § 172.604(a) (2)) in that it offered hazardous material for transportation by air and failed to provide an emergency response telephone number of a person knowledgeable of the hazardous material being shipped and who has comprehensive emergency response and incident mitigation information for that material, or has immediate access to a person possessing such knowledge and information.

w. Section 172.604(a) (3)) (49 C.F.R. § 172.604(a) (3)) in that it offered hazardous material for transportation by air and failed to provide an emergency response telephone number, for use in the event of an emergency involving the hazardous material, and entered on a shipping paper immediately following the description of the hazardous material required by subpart C of this part, or entered once on the shipping paper in a clearly visible location.

x. Section 173.1(b) (49 C.F.R. § 173.1(b), which prohibits the shipment of hazardous material by air that was not paGked in packaging specified in Part 173.
y. Section 173.22(a) (1)) (49 C.F.R. § 173.22(a) (1)) in that it offered hazardous material for shipment by air and failed to class and describe the hazardous material in accordance with parts 172 and 173 of Subpart B, Preparation of Hazardous Materials for Transportation.

z. Section 173.24(b) (1)) (49 C.F.R. § 173.24(b) (1)) in that it offered hazardous material for shipment by air and failed to use packaging that was designed, constructed, maintained, filled, its contents so limited, and closed so that under conditions normally incident to transportation there was no identifiable release of hazardous materials to the environment. NOW, THEREFORE, IT IS ORDERED, pursuant to 49 U.S.C. § 5123(a), that Southwest be and is hereby, assessed a civil penalty of $62,000.00.



### 8Southwest is hereby ordered to pay, immediately, the assessed amount by mailing or delivering a certified check, money order, or company check in the amount of $62,000.00 payable to the "Federal Aviation Administration" addressed to:

Federal Aviation Administration DOT/FAA MMAC AMZ-350 PO BOX 25770 Oklahoma City, Oklahoma 73125-5082 ATTN: Sonny Rogers
As an alternative method of payment, civil penalties may be paid with a credit card at the following website: http://www.pay.gov
The amount of civil penalty assessed in this order constitutes a debt owed to the United States. Southwest has now exhausted its right to seek review of the validity or amount of this debt. If this debt is not paid in full within 30 days of Southwest's receipt of this letter, the debt is delinquent.
For delinquent debts, federal regulation (49 C.F.R. § 89.23) requires us to charge interest, from the date of this Order, at a fixed annual rate of 1.0%, along with an administrative charge of $12 per month, representing our costs of administrative collection. Furthermore, if the full amount assessed is not paid in full within 120 days of Southwest's receipt of this letter, we are required to assess an additional penalty at an annual rate of 2.625%, accruing from the date of delinquency. Delinquent debts may be reported to consumer reporting agencies or commercial credit bureaus, which could adversely affect Southwest's credit rating. Nonpayment of this debt may ultimately result in a referral to a collection agency, or the United States Department of Justice for enforced collection. Upon our receipt of Southwest's payment in the amount of $62,000.00 Southwest may consider this matter closed.

9

### DAVID DONNELL Regional Counsel Southwest Region

Archier, Attorney 222-5074 (Phone) 222-5945/5092 (Fax)

cc: FAA/MMAC Accounts Receivable

CERTIFICATE OF SERVICE


### I certify that this order has been sent on June 15, 2011 by Federal Express to:

ames Mr. Barry Brown Associate General Counsel Operations & Environment Southwest Airlines P.O. Box 36611 2702 Love Field Drive Dallas, Texas 75235-1611

Dated: June 15, 2011 Federal Aviation Administration Office of the Regional Counsel Southwest Region 2601 Meacham Blvd., Fort Worth, Texas 76193-0007 (817) 222-5074



### 10

# (\t'-l)**~'fDV.**

# l'~f\tJ~ U.S. Department of Transportation Southwest Region Arkansas, Louisiana, New Mexico, Oklahoma Texas Office of Regional Counsel, ASW-7 2601 Meacham Blvd. Federal Aviation Administration



### June 21, 2011 Fort Worth, TX 76137 (817) 222-5099 (817) 222-5945/5092 FAX

Certfied Mail Return Receipt 7003 2260 0004 1705 8717


### Mr. Gerald F. Murphy Crowell & Moring LLP 1001 Pennsylvania Avenue, NW Washington, DC 20004
Certfied Mail Return Receipt 7003 2260 0004 1705 8724


### Mr. Brad Sheehan Director of Safety Atlantic Southeast Airlines & ExpressJet 9090 Toffie Terrace Atlanta, Georgia 30354
Re: ExpressJet Airlines, Inc., ·FAA Case No. 2010SW700147 (Hazardous Material Enforcement Case) 

### ORDER ASSESSING CIVIL PENALTY
On August 30, 2010, Express Jet Airlines, Inc., was advised through a Notice of Proposed Civil Penalty that the Federal Aviation Administration proposed to assess a civil penalty in the amount of $5,550.00.
In order to avoid further litigation, the parties have agreed to settle this case for $5,000.00 and Express Jet Airlines, Inc., has agreed to waive any further rights of appeal. This order constitutes a finding by the Federal Aviation Administration of the facts and regulatory violations contained herein. It is determined that:
1. Between May 10, and May 16, 2010, at George Bush Intercontinental Airport, Houston, Texas, the Federal Aviation Administration conducted a comprehensive hazardous material inspection.
2. During the hazardous material shipping inspection, the inspectors reviewed Continental Airlines airway bill 00506916512.

### 3. Express Jet Airlines was listed as the shipper and consignee on airway bill 00506916512.
4. This airway bill listed Oxygen, Compressed, hazard class 2 . 2, (5. 1) , UN 107 2 .
5. The airway bill 00506916512 was not signed and dated by Express Jet Airlines.
6. On FedEx Express air waybill numbers 987781588078 and 987881590582 Express Jet Airlines indicated "RQ" in the hazardous material description for materials that were not hazardous substances as described in 49 C.F.R. § 

### 172.201(a) (4).
7. By reason of the above, ExpressJet Airlines violated the following Department of Transportation Hazardous Materials Regulations (Title 49 of the Code of Federal Regulations):

a. Section 171.2(e) (49 C.F.R. § 

### 171.2(e)), in that Express Jet Airlines offered hazardous material for transportation by air in commerce when the material was not properly classed, described, packaged, marked, labeled, and in a condition for shipment as required or authorized by applicable requirements of the hazardous material regulations. b. Section 172.201(e) (49 C.F.R. § 

### 172.201(e)), in that it offered hazardous material for shipment by air and failed to ensure that the airway bill was dated.

c. Section 172.203(c) (2) (49 C.F.R. § 

### 172.203(c) (2)), in that it offered hazardous material for transportation by air and improperly placed "RQ" in front of the hazardous material descriptions on the airway bills. d. Section 172.204(d) (49 C.F.R. § 

### 172.204(d)), in that it offered hazardous material for shipment by air and failed to sign the shipper's certification NOW, THEREFORE, 

### IT IS ORDERED, 

### pursuant to 49 U.S.C. § 

### 5123(a), that Express Jet Airlines be and is hereby, assessed a civil penalty of $5,000.00. 

### Express Jet Airlines is hereby ordered to pay, immediately, the assessed amount by mailing or delivering a certified check, money order, or company check in the amount of $5,000.00 

### payable to the "Federal Aviation Administration" addressed to:

2

### Federal Aviation Administration DOT/FAA MMAC AMZ-350 PO BOX 25770 Oklahoma City, Oklahoma 73125-5082 ATTN: Sonny Rogers
As an alternative method of payment, civil penalties may be paid with a credit card at the following website: http://www.pay.gov
The amount of civil penalty assessed in this order constitutes a debt owed to the United States. Express Jet Airlines has now exhausted its right to seek review of the validity or amount of this debt. If this debt is not paid in full within 30 days of Express Jet Airlines's receipt of this letter, the debt is delinquent.
For delinquent debts, federal regulation (49 

### C.F.R. § 89.23) 

### requires us to charge interest, from the date of this Order, at a fixed annual rate of 

### 1.0%, along with an administrative charge of $12 per month, representing our costs of 

### administrallve collecllou. Furllle_r_more, l[ 

### Lhe full dltlOU!lL assessed is not paid in full within 120 days of Express Jet Airlines's receipt of this letter, we are required to assess an additional penalty at an annual rate of 

### 2.625%, accruing from the date of delinquency. Delinquent debts may be reported to consumer reporting agencies or commercial credit bureaus, which could adversely affect Express Jet Airlines's credit rating. Nonpayment of this debt may ultimately result in a referral to a collection agency, or the United States Department of Justice for enforced collection. Upon our receipt of Express Jet Airlines's payment in the amount of 

### $5,000.00 Express Jet Airlines may consider this matter closed.



### 3

### DAVID DONNELL Regional Counsel Southwest Region

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,... Ji)l'fleS Archier, Attorney _/· )'B17) 222-5074 (Phone)

### (~/- (817) 222-5945/5092 (Fax)

cc: 

### FAA/MMAC Accounts Receivable

4CERTIFICATE OF SERVICE


### I certify that this order has been sent on June 21, 2011 by 

### certified mail to:

Certfied Mail Return Receipt 7003 2260 0004 1705 8717


### Mr. Gerald F. Murphy Crowell 

### & Moring LLP 1001 Pennsylvania Avenue, NW Washington, DC 20004 Certfied Mail Return Receipt 7003 2260 0004 1705 8724


### Mr. Brad Sheehan Director of Safety Atlantic Southeast Airlines & 

### ExpressJet 9090 Toffie Terrace Atlanta, Georgia 30354

.. ····--

# )

Dated: June 21, 2011 / J 

### es Archier

.**~** 

### ederal Aviation Administration 

# 1/ //Office of the Regional Counsel**,~** 

### Southwest Region 1 

### 2601 Meacham Blvd., Fort Worth, Texas 76193-0007 (817) 222-5074

5

# RESPONSE TO 1.13

RESPONSE TO 1.14

RESPONSE TO 1.15U.S. Department of Transportation Federal Aviation Administration

December 1, 2008 Southwest Region Arkansas, Louisiana, New Mexico, Oklahoma Texas Office of Regional Counsel FortWorth, TX 76193-0007 (817) 222-5099 (817) 222-5945/5092 FAX

Certified Mail Return Receipt 7004 2510 0005 6023 1037 Mr_ Francis C. Heil, Esquire Senior Attorney American Airlines Legal Department P.O. Box 619616 MD 5675 DFW Airport, TX 75261-9616
Re: American Airlines, Inc., FAA Case No. 2008SW700060 

### ORDER ASSESSING CIVIL PENALTY
On June 16, 2008, American Airlines, Inc., was advised through a Notice of Proposed Civil Penalty that the Federal Aviation Administration proposed to assess a civil penalty in the amount of $49,000.00.
After considering all the available information, the parties have agreed to settle this case for $41,500.00 and American Airlines, Inc., has agree to a finding of violations as alleged and to waive any further rights of appeal. It has been determined that:
1. From January 22, 2008 to February 12, 2008, a special agent from the Federal Aviation conducted a hazardous materials assessment of American Airlines, Inc., (hereinafter "American").
2. During this assessment, the special agent discovered that American failed to properly complete the Notification to Pilot-In-Command (hereinafter "NOPIC") for hazardous materials American transported via passenger-carrying aircraft flights from Dallas/Fort Worth International Airport (hereinafter "DFW"), Texas.
3. On February 6, 2008, American failed to include the technical name for Flammable Solid, Organic, N.O.S., 4.1 UN1325, PG III on the Notification to Pilot-In-Command for flight 50 from DFW to London Gatwick International Airport,

# •

London, England. The technical name for this hazardous material is "iron oxide and aluminumu.
4. On February 6, 2008, American failed to include the technical name for Polyamines, Liquid, Corrosive N.O.S., 8, UN2735, PG III on the Notification to Pilot-In-Command for flight 925 from DFW to Miami International Airport, Miami, Florida. The technical name is trithylene tetramine, metaxylenediamine.
5. On February 5, 2008, American failed to identify the location of COMAT, described as Dangerous Goods in Machinery, hazard class 9, UN3363, on the Notification to Pilot-In-Command form for flight 1499 from DFW to Norman Y. Mineta International Airport, San Jose, California
6. On February 5, 2008, American failed to identify the location of COMAT, described as Adhesives, hazard class 3, UN1133, Packing Group II on the Notification to Pilot-InCommand form, for flight 1046 from DFW to Miami International Airport, Miami, Florida.
7. On February 6, 2008, American failed to identify the location of COMAT, described as batteries, wet filled with alkali, hazard class 8, UN2795, on the Notification to Pilot-In-Command form for flight 739 from DFW to Los Angeles International Airport, Los Angeles, California.
8. On February 7, 2008, American failed to identify the location of COMAT, described as Dangerous Goods in Machinery, hazard class 9, UN3363 on the Notification to Pilot-In-Command form for flight 559 from DFW to Austin Bergstrom International Airport, Austin, Texas. 9. On February 7, 2008, American failed to identify the location of COMAT, described as Paint, hazard class 3, UN1263, Packing Group II on the Notification to Pilot-InCommand form for flight 1672 from DFW to Tulsa International Airport, Tulsa, Oklahoma. 10. American transported hazardous material in air commerce when it failed to provide the technical name of the hazardous materials on the Notification to Pilot-In-Command form.

2

# •

11. American transported COMAT in air commerce when it failed to identify the location of the COMAT on its Notification to Pilot-In-Command form.
12. By reason of the facts and circumstances described in paragraphs 1 through 11 above, American violated the following Department of Transportation Hazardous Materials Regulations (Title 49 of the Code of Federal Regulations):

a. Section 175.1(b)) (49 C.F.R. § 175.1(b)), in that American transported hazardous material in air commerce when it did not comply with the requirements of Subpart A of Part 175. (49 C.F.R. § 175, 

### et seq.).
b. Section 175.33(a) (1) (i) (49 C.F.R. § 175. 33 (a) (1) (i) ) , in that American transported hazardous material in air commerce when it failed to provide additional description requirements provided in§§ 172.202 and 172.203 on the Notification to Pilot-In-Command form.

c. Section 175.33(a) (4) (49 C.F.R. § 175.33(a) (4)), in that American transported hazardous material in air commerce when it failed to identify the location of COMAT on the Notification to Pilot-In-Command form. 

### NOW, THEREFORE, IT IS ORDERED, pursuant to 49 U.S.C. § 5123, that American be and is hereby, assessed a civil penalty of 

### $41,500.00.
American is hereby ordered to pay, immediately, the assessed amount by mailing or delivering a certified check, money order, or company check in the amount of 

### $41,500.00 payable to the "Fed.eral Aviation Administration" addressed to: 

### DOT/FAA/MMAC, Accounts Receivable, AMZ-310, P.O.BOX 25082 Oklahoma City, Oklahoma 73125-5082
The amount of civil penalty assessed in this Order constitutes a debt owed to the United States. American has now exhausted its right to seek review of the validity or amount of this debt. If this debt is not paid in full within 30 days of American's receipt of this letter, the debt is delinquent.



### 3

# •

For delinquent debts, federal regulation (49 C.F.R. § 89.23) requires us to charge interest, from the date of this Order, at a fixed annual rate of 5.125%, along with an administrative charge of $12 per month, representing our costs of administrative collection. Furthermore, if the full amount assessed is not paid in full within 120 days of American's receipt of this letter, we are required to assess an additional penalty at an annual rate of 3.0%, accruing from the date of delinquency. Delinquent debts may be reported to consumer reporting agencies or commercial credit bureaus, which could adversely affect American's credit rating. Nonpayment of this debt may ultimately result in a referral to a collection agency, or the United States Department of Justice for enforced collection. Upon our receipt of American's payment in the amount of $41,500.00 American may consider this matter closed.



### LYNETTE WORD Regional Counsel Southwest Region

s Archier, Attorney 222-5074 (Phone) 222-5945/5092 (Fax)

4•,

CERTIFICATE OF SERVICE
I certify that this Order has been sent on December 1, 2008 by certified mail, return receipt requested to:

mes Mr. Francis C. Heil, Esquire Senior Attorney American Airlines Legal Department P.O. Box 619616 MD 5675 DFW Airport, TX 75261-9616

Dated: December 1, 2008 F;ederal Aviation Administration 16ffice of the Regional Counsel / Southwest Region 2601 Meacham Blvd., Fort Worth, Texas 76193-0007 (817) 222-5074

--------
.. ·-·---·----·····-----



### 5U.S. Department of Transportation ·Federal Aviation Administration



### March 12, 2009 Southwest Region Arkansas, Louisiana, New Mexico. Oklahoma Texas Office of Regional Counsel Fort Worth, TX 76193-0007 (817) 222-5099 (817) 222-5945/5092 FAX



### Certified Mail Return Receipt 7004 2510 0005 6023 9606


### Mr. Francis Heil Senior Attorney American Airlines Legal Department P.O. Box 619616 MD 5675 DFW Airport, Texas 75261-9616
Re: 

### American Airlines, Inc., FAA Case No. 2008SW700102 

### ORDER ASSESSING CIVIL PENALTY
On July 10, 2008, American Airlines, Inc., (hereinafter "American") was advised through a Notice of Propbsed Civil Penalty that the Federal Aviation Administration proposed to assess a civil penalty in the amount of $63,600.00.
After considering all the available information, the parties have agreed to settle this case for $45,000.00 and American has agreed to waive any further rights of appeal. This Order constitutes a finding by the Federal Aviation Administration of the facts and regulatory violations contained herein.
1. On or about April 11, 2008, a special agent from the Federal Aviation Administration conducted a supplementary hazardous material assessment of American Airlines, Inc., (hereinafter "American").
2. At all relevant times, American was the holder of Air Carrier Operating Certificate No. AALA025A and Operations Specifications issued under Part 121 of the Federal Aviation Administration.
3. During this assessment, the special agent discovered that American failed to properly complete the Notification to the Pilot-In-Command (hereinafter "NOPIC") for hazardous

### materials American transported via passenger-carrying aLrcraft flights from Dallas/Fort Worth International Airport (hereinafter "DFW"), Texas.
4. On March 2, 2008, the NOPIC for American flight number 1299 from DFW to Miami International Airport, Miami, Florida failed to include the packing group for a shipment described as Seat-belt pretensioners, hazard class 9, UN3268, PG II as required by hazardous material regulations.
5. On March 3, 2008, on the NOPIC for American flight 48, DFW to Paris Charles De Gaulle Airport, Paris, France, the basic description provided for a package containing items classified as Aerosols, Flammable, 2.1 UN1950 and Flammable Liquid, N.O.S., 3, UN1993, PG II failed to include the technical name of the material and the packing group as required.
6. On March 6, 2008, on the NOPIC for American flight number 2344, DFW to Chicago O'Hare International Airport, Chicago, Illinois, the basic description provided for a shipment of items classified as Amines, Liquid, Corrosive N.O.S., hazard class 8, UN2735, packing group II, failed to include the technical name of the material as required.
7. On March 6, 2008, the NOPIC for American flight number 1299, DFW to Miami International Airport, Miami, Florida failed to include the packing group for a shipment described as Extracts, flavoring liquid, hazard class 3, UN1197, as required. The NOPIC also incorrectly referred to this material having a hazard class "3" subsidiary risk. 8. On March 8, 2008, the NOPIC for American flight number 474 DFW to Hartsfield-Jackson International Airport, Atlanta, Georgia failed to include the packing group for a shipment described as Extracts, flavoring liquid, hazard class 3, UN1197, packing group II, as required.
9 On March 9, 2008, the NOPIC for American flight number 536, DFW to Hartsfield-Jackson International Airport, Atlanta, Georgia failed to include the proper hazard class for a shipment described as Extracts, flavoring liquid, hazard class 3, UN1197, packing group II, as required.
10. By reason of the facts and circumstances described in paragraphs 1 through 10 above, American violated the



### 2

### following Department of Transportation Hazardous Materials Regulations (Title 49 of the Code of Federal Regulations):

a. Section 175.1(b)) (49C.F.R. § 175.l(b)), in that American transported hazardous material in air commerce when it did not comply with the requirements of Subpart A of Part 175. (49 C.F.R. § 175, et seq.). 

### b. Section 175.33(a) (1)) (49 C.F.R. § 175.33(a) (1), in that American transported hazardous material in air commerce when it failed to provide the proper shipping name, hazard class, and identification number on the Notification to Pilot-In-Command form.

c. Section 175.33(a) (1) 

### (i) (49 C.F.R. § 175.33(a) (1) (i)), in that American transported hazardous material in air commerce when it failed to provide additional description requirements provided in§§ 172.202 and 172.203 on the Notification to Pilot-In-Command form. NOW, THEREFORE, IT IS ORDERED, 

### pursuant to 49 U.S.C. § 

### 5123, that American be and is hereby, assessed a civil penalty of $45,000.00.


### American is hereby ordered to pay, immediately, the assessed amount by mailing or delivering a certified check, money order, or company check in the amount of $45,000.00 

### payable to the "Federal Aviation Administration" addressed to: DOT/FAA/MMAC, Accounts Receivable, AMZ-310, P.O.BOX 25082 Oklahoma City, Oklahoma 73125-5082 

### The amount of civil penalty assessed in this Order constitutes a debt owed to the United States. American has now exhausted its right to seek review of the validity or amount of this debt. If this debt is not paid in full within 30 days of American's receipt of this letter, the debt is delinquent.
For delinquent debts, federal regulation (49 C.F.R. § 

### 89.23) requires us to charge interest, from the date of this Order, at a fixed annual rate of 5.125%, 

### along with an administrative charge of $12 per month, representing our costs of administrative collection. Furthermore, if the

3

### full amount assessed is not paid in full within 120 days of American's receipt of this. letter, we are required to assess an additional penalty at an annual rate of 

### 3.0%, accruing from the date of delinquency. Delinquent debts may be reported to consumer reporting agencies or commercial credit bureaus, which could adversely affect American's credit rating. Nonpayment of this debt may ultimately result in a referral to a collection agency, or the United States Department of Justice for enforced collection. Upon our receipt of American's payment in the amount of $45,000.00 American may consider this matter closed.

LYNETTE WORD Regional Counsel American Region 

# /" ' \.**~··** '/, '·[ 

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# #1t./ L / t/C>- 'i--l/(_..,/ James Archier, Attorney (817) 222-5074 (Phone) (817) 222-5945/5092 (Fax)



### 4

# •

CERTIFICATE OF SERVICE


### I certify that this Order has been sent on March 12, 2009 by certified mail, return receipt requested to:

Mr. Francis Heil

Senior Attorney American Airlines Legal Department P.O. Box 619616 MD 5675 DFW Airport, Texas 75261-9616

# ""~

# )**1~** fi 

# I , ;, By:

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## ///lL{/1 Dated: March 12, 2009 /"'_/ /1

### James Archier Federal Aviation Administration Office of the Regional Counsel I / 

### American Region :__....../ 

### 2601 Meacham Blvd., Fort Worth, Texas 76193-0007 (817) 222-5074

5U.S. Department of Transportation Federal Aviation Administration

May 13, 2011

# •

Southwest Region Arkansas, Louisiana, New Mexico, Oklahoma Texas Office of Regional Counsel. ASW-7 2601 Meacham Blvd. · Fort Worth, TX 76137 (817) 222-5099 (817) 222-5945/5092 FAX



### Certified Mail Return Receipt 7004 1160 0002 0277 0698
Mr. Francis C. Heil Senior Attorney American Airlines P.O. Box 619616 Dallas/Fort Worth Airport Texas 75261-9616
Re: 

### American Airlines, Inc., FAA Case No. 2010SW700123 ORDER ASSESSING CIVIL PENALTY
On August 11, 2010, American Airlines, Inc., was advised through a Notice of Proposed Civil Penalty that the Federal Aviation Administration proposed to assess a civil penalty in the amount of $32,500.00.
In order to avoid further litigation, the parties have agreed to settle this case for $22,500.00 and American Airlines, Inc., has agreed to waive any further rights of appeal. This order constitutes a finding by the Federal Aviation Administration of the facts and regulatory violations contained herein. It is determined that:
l. From April 6, 2010 to April 19, 2010, the Federal Aviation Administration conducted a comprehensive hazardous material inspection at Dallas/Fort Worth International Airport ("DFW"), Texas.
2. At all relevant times, American Airlines, Inc.,

("American") was the holder of Air Carrier Operating Certificate No. AALA025A and Operations Specifications issued under Part 121 of the Federal Aviation Administration.
3. During the inspection American routinely failed to properly complete the Notification to the Pilot-In-Command

### ("NOPIC') pr.ovided to the Captain of American flights as follows:

a. On March 16, 2010, for American Flight Number 1482 (DFW to Tampa, Florida ("TPA") ), featured the basic description provided for a shipment, offered on AWB 8276-8420 (2 packages total), for items classified as Radioactive Material, Type A Package, 7, UN2915. The NOPIC failed to include the proper shipping name as required. b. On February 2, 2010, the NOPIC for American Flight 2167 (DFW to San Jose, Costa Rica (SJO)) featured the basic description for a shipment offered on AWB 001-9657-6292 (1 package), for items classified as Phosphoric Acid Solution, 8, UN1805, PG III and Corrosive Liquid, N.O.S., 8, UN1760, PGIII. the NOPIC failed to include the technical name of the latter item as required.

c. On February 6, 2010, the NOPIC for American Flight 1690 (DFW to Miami International Airport ("MIA"), Miami, Florida featured the description for a shipment offered on AWB 001-8247-3603 (2 packages total), for items classified as Air Bag Modules, 9, UN3268. The NOPIC failed to include the packing group and "EX number" as required. d. On February 9, 2010, the NOPIC for American Flight Number 433 (DFW to Mexico City, Mexico ("MEX") featured the description for a shipment offered on AWB 001-3790-0214 (3 packages total) for items classified as Corrosive Solid, N.O.S. 8, UN1759. The NOPIC failed to include the complete proper shipping name as required.

e. On February 13, 2010, the NOPIC for American Flight Number 409 (DFW to Mexico City, Mexico ("MEX")) featured the description for a shipment offered on AWB 001-8208-3750 (1 package), for items classified as Phosphoric Acid Solution, 8, UN1805, PG III and Corrosive Liquid, N.O.S., 8, UN1760, PGIII. The NOPIC failed to include the packing group of the latter item as required.
f. On February 16, 2010, the NOPIC for American Flight Number 1549 (DFW to Houston, Texas (IAH)),

2

# •

Featured the description for a shipment offered on AWB 001-77290566 (5 packages), for items classified as Gas Oil, 3, UN1202. The NOPIC failed to include the packing group as required.
g. On February 24, 2010, the NOPIC for American Flight Number 48 (DFW to Paris, France ("COG")), featured the description for a shipment offered on AWB 7796-9043 (1 package), for an item classified as Adhesives, 3, UN1133, PGII. The NOPIC failed to include the packing group as required.
h. On February 28, 2010, the NOPIC for American Flight Number 36 (DFW to Madrid, Spain ("MAD")), featured the description for a shipment offered on AWB 001-7878-3983 (1 package), of an item classified as Amines, Liquid, Corrosive, N.O.S., 8, UN2735, PG II. The NOPIC failed to include the packing group as required.
i. On March 6, 2010, the NOPIC for American Flight Number 963 (DFW to Sao Paulo, Brazil (GRU) ), featured the description for a shipment offered on AWB 001- 96383-416 (1 Package), for an item classified as Acetonitrile, 3 UN1648, PGII. The NOPIC failed to include the packing group as required. 

### j. On March 12, 2010, the NOPIC for American Flight 651, 1266, and 1238 (DFW to Miami, Florida ("MIA")) Featured the description for a shipment offered on AWB 001-9642-1555 (3 packages total, 1 package was transported on each flight), for items classified as Printing Ink, 3, UN1210, PG III. The NOPIC failed to include the packing group as required. k. On March 16, 2010, the NOPIC for American Flight Number 2479 (DFW to Los Angeles, California (LAX)), featured the description for a shipment offered on AWB 001-9987-7606 (1 package), for items classified as Cartridges, Power Device, 1.4S, UN0323. The NOPIC failed to include the "EX number" as required.
1. On April 9, 2010, the NOPIC for American Flight Number 963 (DFW to Sao Paulo, Brazil (GRU)), featured The description for a shipment offered on AWB 1306- 5113 (1 package), for an item classified as Flammable Liquid, Corrosive, N.O.S., 3 (8), UN2924, PG II. The

# •

NOPIC failed to include the subsidiary hazard class name of the material as required.
4. On April 13, 2010, American failed to properly monitor the telephone number indicated on the Notice to Pilot in Command as required by the hazardous material regulations.
5. By reason of the facts and circumstances described in paragraphs 1 through 10 above, American violated the following Department of Transportation Hazardous Materials Regulations (Title 49 

### of the Code of Federal Regulations):

a. Section 175.1(b)) (49 

### C.F.R. § 

### 175.1(b)), in that American transported hazardous material in air commerce when it did not comply with the requirements of Subpart A of Part 175. (49 

### C.F.R. § 

### 175, et seq.). 

### b. Section 175.33(a) (1)) (49 

### C.F.R. § 

### 175.33(a) (1), in that American transported hazardous material in air commerce when it failed to provide the proper shipping name, hazard class, and identification number on the Notification to Pilot-In-Command form.

c. Section 175.33(a) (1) (i) (49 

### C.F.R. § 175. 33 (a) (1) (i)), in that American transported hazardous material in air commerce when it failed to provide additional description requirements provided in§§ 172.202 and 172.203 on the Notification to Pilot-In-Command form. d. Section 175.33(a) (8)) (49 

### C.F.R. § 175.33(a) (8), 

### in that American transported hazardous material in air commerce when it failed to provide a telephone number of a person not aboard the aircraft whom the information from the pilot-in-command can be obtained and the phone number is monitored at all times the aircraft is in flight. NOW, THEREFORE, IT IS ORDERED, 

### pursuant to 49 

### U.S.C. § 5123(a), that American be and is hereby, assessed a civil penalty of $22,500.00.


### American is hereby ordered to pay, immediately, the assessed amount by mailing or delivering a certified check, money order, or company check in the amount of $22,500.00 

### payable to the "Federal Aviation Administration" addressed to:

4

# •

Federal Aviation Administration DOT/FAA MMAC AMZ-350 PO BOX 25770 Oklahoma City, Oklahoma 73125-5082 ATTN: Sonny Rogers


### As an alternative method of payment, civil penalties may be paid with a credit card at the following website: http://www.pay.gov
The amount of civil penalty assessed in this order constitutes a debt owed to the United States. American has now exhausted its right to seek review of the validity or amount of this debt. If this debt is not paid in full within 30 days of American's receipt of this letter, the debt is delinquent.
For delinquent debts, federal regulation (49 C.F.R. § 

### 89.23) requires us to charge interest, from the date of this Order, at a fixed annual rate of 1.0%, 

### along with an administrative charge of $12 per month, representing our costs of administrative collection. Furthermore, if the full amount assessed is not paid in full within 120 days of American's receipt of this letter, we are required to assess an additional penalty at an annual rate of 2.625%, 

### accruing from the date of delinquency. Delinquent debts may be reported to consumer reporting agencies or commercial credit bureaus, which could adversely affect American's credit rating. Nonpayment of this debt may ultimately result in a referral to a collection agency, or the United States Department of Justice for enforced collection. Upon our receipt of American's payment in the amount of $22,500.00 

### American may consider this matter closed.



### 5

# •

DAVID DONNELL Acting Regional Counsel Southwest Region

- ·---.........._\



# l? 

# i**~** 'L BY :

# ~<'-":j:J.L.f_**£_,!.c:..)~~'--/-Yto:_-~** -_·...:..:!_-{.,"'--1.41L:.::-;..:...(.-='-/_j'-- ;·
__ 

### ,James 'Ar"'chier, Attorney

(817) 222-5074 (Phone) (817) 222-5945/5092 (Fax)

cc: FAA/MMAC Accounts Receivable CERTIFICATE OF SERVICE


### I certify that this order has been sent on May 13, 2011 by certified mail to:

Mr. Francis C. Heil Senior Attorney American Airlines

P.O. Box 619616 Dallas/Fort Worth Airport Texas 75261-9616

- 

### ----....._ (

. . · 

# ) ;) /).

# ~-dtL-/ 

# tt_u/(&.(./; Dated: May 13, 2011 

## //\Ya:mes Archier //

### /F~deral Aviation Administration _,/Office of the Regional Counsel /**~/** 

### Southwest Region

.**~** 

### 2601 Meacham Blvd.,

### ~ Fort Worth, Texas 76193-0007 (817) 222-5074



### 6U.S. Department of Transportation Federal Aviation Administration

December 7, 2011 

### Via Federal Express Southwest Region Arkansas, Louisiana, New Mexico, Oklahoma Texas

Mr. Jonathan T. Linde Managing Director & Senior Counsel Regulatory United Airlines, Inc. 77 W. Wacker Drive

. 16th Floor HDQLD Chicago, Illinois 60601 Office of Regional Counsel, ASW-7 2601 Meacham Blvd. Fort Worth, TX 76137 (817) 222-5099 (817) 222-5945/5092 FAX

Re: 

### Continental Airlines, Inc., FAA Case No. 2010SW700146 

### ORDER ASSESSING CIVIL PENALTY
On September 1, 2011, Continental Airlines, Inc., was advised through an Amended Notice of Proposed Civil Penalty that the Federal Aviation Administration proposed to assess a civil penalty in the amount of $35,850.
In order to avoid further litigation, the parties have agreed to settle this case for $32,000 and Continental Airlines, Inc., has agreed to waive any further rights of appeal. This order constitutes a finding by the Federal Aviation Administration of the facts and regulatory violations contained herein. It is determined that:
1. From May 10, 2010 to May 18, 2010 the Federal Aviation Administration ("FAA") conducted a comprehensive hazardous material inspection of Continental Airlines, Inc. ("Continental") at George Bush Intercontinental Airport, Houston, Texas.
2. During this inspection the FAA inspector observed numerous discrepancies involving incorrect preparation of Notice to Pilot In Command, improper shipping paper acceptance and preparation, and lack of an emergency response telephone number on shipping papers.

# • •

3. On or about April 20, 2010, the Notice to Pilot In Command for Continental for Flight 632 from Houston, Texas to LaGuardia, New York, via air waybill number 00557301893 lacked the prefix "UN" in the identification number used for the basic description of Dry Ice, UN1845.
4. On or about March 26, 2010, the Notice to Pilot In Command for Continental Flight 146 from Houston, Texas to Chicago, Illinois failed to include the technical name description for Gas N.O.S., 2.2 on air way bill number 60794707491.
5. On or about April 9, 2010, the Notice to Pilot In Command for Continental Flight Number 1586 from Houston, Texas to Orlando, Florida failed to include the loading location for items classified as Dangerous Goods in Machinery, hazard class 9, UN3363 on air waybill 005IAH34342453.
6. On or about March 24, 2010, the Notice to Pilot In Command for Continental Flight Number 1195 from Houston, Texas to Los Angeles, California used an incomplete shipping name for Carbon Dioxide Solid, hazard class 9, UN1845 on air waybill 00579051442.
7. On or about March. 30, 2010 the Notice to Pilot In Command for Continental Flight Number 34 from Houston, Texas to London, England failed to include the notation for a Limited Quantity Shipment for Adhesive, hazard class 3, Packing Group II that was offered on air waybill 00595479414.
8. On or about July 20, 2009, Charles Justice prepared and offered a shipping paper on behalf of Continental with air waybill 005IAH34369543 for the transport of Flammable Liquid NOS, hazard class 3, Packing Group II from Houston, Texas to Cleveland, Ohio that did not include the required emergency response telephone number. 9. On or about July 16, 2009 Continental accepted a shipping paper, in conjunction with air waybill 00517004470, that lacked the identification number, proper shipping name and hazard class for Paint, hazard class 3, packing group III.
10. On or about April 26, 2009, Pedro Berrios prepared a shipping paper for Continental that was used in conjunction with air waybill 613260736946 to transport Life Saving Appliances, self-inflating, hazard class 9 from Houston, Texas to Newark, New Jersey. The hazardous material shipping description improperly included the notation "RQ".



### 2

# •

11. By reason of the above, Continental violated the following Department of Transportation Hazardous Materials Regulations (Title 49 of the Code of Federal Regulations):

a. Section 171.2(e) (49 C.F.R. § 171.2(e)), in that Continental offered hazardous material for transportation by air in commerce when the material was not properly classed, described, packaged, marked, labeled, and in a condition for shipment as required or authorized by applicable requirements of the hazardous material regulations.
b. Section 172.200(a) (49 C.F.R. § 172.200(a)), which requires that each person offering a hazardous material for transportation to properly describe the hazardous material on the shipping papers.

c. Section 172.201(a) (4) (49 C.F.R. § 172.20l(a) (4)) in that it offered hazardous material for transportation in air commerce when the shipping paper provided additional information that was inconsistent with the required description. d. Section 172.20l(d)) (49 C.F.R. § 172.201(d))) in that it offered hazardous material for transportation in air commerce and failed to include an emergency response telephone number on the shipping paper as prescribed in subpart G.

e. Section 172.202(a)(1)(49 C.F.R. § 172.202(a)(l)) in that it offered hazardous material for transportation in air commerce when the required hazardous material description on the shipping papers did not include the identification number prescribed for the material as shown in Column 4 of the§ 172.101 Table.
f. 

### Section 172.202(a) (2) (49 C.F.R. § 172.202(a) (2)) in that it offered hazardous material for transportation in air commerce when the required hazardous material description on the shipping papers did not include the proper shipping name prescribed for the material in Column 2 of the§ 172.101 Table.
g. Section 172.202(a) (3) (49 C.F.R. § 172.202(a) (3)) in that it offered hazardous material for transportation in air commerce when the required shipping papers did not include the hazard class or division number prescribed for the material, as shown in Column (3) in the Hazardous Materials Table, referenced in section 172.101.

3

# • •

h. Section 172.203(b) (49 C.F.R. § 

### 172.203(b)) in that it offered hazardous material for transportation in air commerce as "limited quantity" without providing the language "Limited Quantity" or "Ltd Qty" following the basic description.
i. Section 172.600 (49 C.F.R. § 

### 172.600) ), which requires that each person offering a hazardous material for transportation to provide and maintain emergency response information during transportation and at the facility where hazardous materials are loaded for transportation, stored incidental to transportation or otherwise handled during any phase of transportation. j. 

### Section 172.604(a) (1)) (49 C.F.R. § 

### 172.604(a) (1)) in that it offered hazardous material for shipment by air and failed to provide an emergency response telephone number (including area code) for use in the event of an emergency involving hazardous material that is monitored at all times that the material is in transportation, including storage incidental to transportation.
k. Section 175.30(a) (2) (49 C.F.R. § 

### 175.30(a) (2) in that it accepted hazardous material aboard an aircraft and failed to ensure that the hazardous material was described and certified on a shipping paper prepared in duplicate in accordance with part 172 of this subchapter or as authorized by subpart C of part 171 of this subchapter. 1. Section 175.33(a) (1) (49 C.F.R. § 

### 175.33(a) (1) 

### in that it accepted hazardous material aboard an aircraft for transportation by air and failed to provide the pilot-in-command the proper shipping name, hazard class and identification number of the hazardous material aboard the aircraft.

m. Section 175.33(a) (2) (49 C.F.R. § 

### 175.33(a) (2) in that it accepted hazardous material aboard an aircraft for transportation by air and the operator of the aircraft failed to inform the pilot in command of the location of the hazardous materials. NOW, THEREFORE, IT IS ORDERED, 

### pursuant to 49 U.S.C. § 

### 5123(a), that Continental be and is hereby, assessed a civil penalty of $32,000.00.


### Continental is hereby ordered to pay, immediately, the assessed amount by mailing or delivering a certified check, money order, or company check in the amount of $32,000.00 

### payable to the "Federal Aviation Administration" addressed to:

4**c--...~---··** 

# • •

Federal Aviation Administration DOT/FAA MMAC AMZ-350 PO BOX 25770 Oklahoma City, Oklahoma 73125-5082 ATTN: Sonny Rogers


### As an alternative method of payment, civil penalties may be paid with a credit card at the following website: http://www.pay.gov
The amount of civil penalty assessed in this order constitutes a debt owed to the United States. Continental has now exhausted its right to seek review of the validity or amount of this debt. If this debt is not paid in full within 30 days of Continental's receipt of this letter, the debt is delinquent.
For delinquent debts, federal regulation (49 C.F.R. § 

### 89.23) requires us to charge interest, from the date of this Order, at a fixed annual rate of 1.0%, 

### along with an administrative charge of $12 per month, representing our costs of administrative collection. Furthermore, if the full amount assessed is not paid in full within 120 days of Continental's receipt of this letter, we are required to assess an additional penalty at an annual rate of 2.50%, 

### accruing from the date of delinquency. Delinquent debts may be reported to consumer reporting agencies or commercial credit bureaus, which could adversely affect Continental's credit rating. Nonpayment of this debt may ultimately result in a referral to a collection agency, or the United States Department of Justice for enforced collection. Upon our receipt of Continental's payment in the amount of $32,000.00 

### Continental may consider this matter closed.

DAVID DONNELL Regional Counsel Southwest Region**~.** 

### Archier, Attorney 222-5074 (Phone) 222-5945/5092 (Fax)



### 5

# l 

# • •

cc: FAA/MMAC Accounts Receivable

CERTIFICATE OF SERVICE
I certify that this order has been sent on December 7, 2011 by Federal Express to:

Mr. Jonathan T. Linde Managing Director & Senior Counsel Regulatory United Air Lines, Inc. 77 W. Wacker Drive 16th Floor HDQLD Chicago, Illinois 60601

(

# ~\ ff/.

# ~ Dated: December 7, 2011**~** 

### s Archier**~ ~**  

### deral Aviation Administration / Office of the Regional Counsel 

### j' Southwest Region

· 2601 Meacham Blvd., Fort Worth, Texas 76193-0007 (817) 222-5074

6U.S. Department of Transportation Federal Aviation Administration 

# •

February 26, 2009 Southwest Region Arkansas, Louisiana, New Mexico, Oklahoma Texas Office of Regional Counsel Fort Worth, TX 76193-0007 (817) 222-5099 (817) 222-5945/5092 FAX



### Certified Mail
- Return Receipt 7004 2510 0005 6023 9842


### Ms. Ann M. Aktabowski Vice President, Customer Services World Airways, Inc. 101 World Drive HLH Building Peachtree, Georgia 30269
Re: 

### World Airways, Inc., FAA Case No. 2007SW700311 

### ORDER ASSESSING CIVIL PENALTY
On January 27, 2009, World Airways, Inc., (hereinafter "World Airways") was advised through a Notice of Proposed Civil Penalty that the Federal Aviation Administration proposed to assess a civil penalty in the amount of $32,500.00.
After considering all the available information presented in the Informal Conference on February 25, 2009, the parties agreed to settle this case for $25,000.00 and World Airways has agreed to waive any further rights of appeal. This Order constitutes a finding by the Federal**Aviati~n** 

### Administration of the facts and regulatory violations contained herein. The Administrator has determined that: 1. On or about November 5, 2006, World Airways accepted and transported a hazardous material shipment from Luanda, Angola to Houston, Texas.
2. The Federal Aviation Administration (hereinafter "FAA") became aware of this shipment on October 9, 2008.
3. The shipment consisted of a package of human blood samples suspected of containing Marburg Virus, an infectious substance.

# •

4. The human blood samples, suspected of containing Marburg Virus, were inside of box and placed in the overhead storage compartment of a passenger aircraft. Dry ice was used to cool the sample.
5. The package was labeled with a "bio hazard sticker."
6. Marburg Virus is classified as a hazardous material under the Department of Transportation Hazardous Material Regulations (49 C.F.R. § 

### 172.101).
7. The proper shipping name for Marburg virus is Infectious Substances, affecting humans, 6.2, UN2814.
8. The package was shipped under Etiological Permit number 2006-02-077.
8. The package did not contain a shipper's declaration.
9. World Airways transported a hazardous material in commerce that failed to comply with the applicable requirements of subchapter C, subpart A of the hazardous material regulations.
10. World Airways accepted a hazardous material for transportation aboard an aircraft when the aircraft operator failed to ensure that the hazardous material was described and certified on a shipping paper prepared in duplicate in accordance part 172 of this subchapter or as authorized by subpart C of part 171 of this subchapter. 11. World Airways accepted hazardous material for transportation by air and failed to provide the pilot-incommand with a shipping paper that provided the proper shipping name, hazard class, and identification number of the material. 12. World Airways accepted and transported hazardous material in the cabin of a passenger-carrying aircraft.
13. By reason of the foregoing facts and circumstances, World Airways violated the following sections of the Department of Transportation Hazardous Materials Regulations (49 C.F.R. § 

### 171 

### et.seq.

a. Section 171.2(f) (49 C.F.R. § 

### 171.2(f) in that it transported a hazardous material in commerce that failed to



### 2

# •

comply with the applicable requirements of subchapter C, subpart A of the hazardous material regulations.
b. Section 175.30(a) (2) (49 C.F.R. § 

### 175.30(a) (2) in that it accepted a hazardous material for transportation aboard an aircraft when the aircraft operator failed to ensure that the hazardous material was described and certified on a shipping paper prepared in duplicate in accordance with**p~rt** 

### 172 of this subchapter or as authorized by subpart C of part 171 of this subchapter.

c. Section 175.33(a) (1) (49 C.F.R. § 

### 175.33(a) (1) accepted hazardous material for transportation by air and failed to provide the pilot-in-command with a shipping paper that provided the proper shipping name, hazard class, and identification number of the material. d. Section 175.75(b) (49 C.F.R. § 

### 175.75(b) accepted and transported hazardous material in the cabin of a passenger-carrying aircraft. NOW, THEREFORE, 

### IT IS ORDERED, 

### pursuant to 49 U.S.C. § 

### 5123, that World Airways be and is hereby, assessed a civil penalty of $25,000.00.


### World Airways is hereby ordered to pay, immediately, the assessed amount by mailing or delivering a certified check, money order, or company check in the amount of $25,000.00 

### payable to the "Federal Aviation Administration" addressed to: DOT/FAA/MMAC, Accounts Receivable, AMZ-310, P.O.BOX 25082 Oklahoma City, Oklahoma 73125-5082


### The amount of civil penalty assessed in this Order constitutes a debt owed to the United States. World Airways has now exhausted its right to seek review of the validity or amount of this debt. If this debt is not paid in full within 30 days of World Airways' receipt of this letter, the debt is delinquent.
For delinquent debts, federal regulation (49 C.F.R. § 

### 89.23) requires us to charge interest, from the date of this Order, at a fixed annual rate of 5.125%, 

### along with an administrative charge of $12 per month, representing our

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costs of administrative collection. Furthermore, if the full amount assessed is not paid in full within 120 

### days of World Airways' receipt of this letter, we are required to assess an additional penalty at an annual rate of 3.0%, accruing from the date of delinquency. Delinquent debts may be reported to consumer reporting agencies or commercial credit bureaus, which could adversely affect World Airways' credit rating. Nonpayment of this debt may ultimately result in a referral to a collection agency, or the United States Department of Justice for enforced collection. Upon our receipt of World Airways' payment in the amount of $25,000.00 

### World Airways may consider this matter closed.



### LYNETTE WORD Regional Counsel Southwest Region

By: 

# _-**)a~Lu!/1 -o--~.m~s**  

### ArCJ:er; Attorney (817) 222-5074 

### (Phone) (817) 222-5945/5092 

### (Fax)



### 4

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CERTIFICATE OF SERVICE
I certify that this Order has been sent on February 26, 2009 

### by certified mail, return receipt requested to:

( 

### Ms. Ann M. Aktabowski Vice President, Customer Services World Airways, Inc. 101 World Drive



### HLH Building Peachtree, Georgia 30269

\..._..._ B

### ~~-____-;· ·>fit-7 

### Dated: February 26, 2009

..--.---- Ja es Archier

## ~**~deral** Aviation Administration**~/** 

### Office of the Regional Counsel ' Southwest Region 2601 Meacham Blvd., Fort Worth, Texas 76193-0007 (817) 222-5074

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RESPONSE TO 1.17

# . !. ·

. Part 175 · Carriage by

### Aircra'

# ~**~board** an a1rcraft unless the package, o s1de conta1ner, oroverpack IS shown on shipping papers by subpart 

### c of part 171 f . 

# ff Inspected bythe

### ?pera~or ofthe aircraft immediately before placing it: subchapter must also be shown in the notification. 0 th,s .tl!!l!l 75.31

(1)

### Aboar~ the

### aJrc~aft, or . - . . (2) The total numberof packages; 't'J (2} In a unitload**devtc~** oron apalletpn?rto/oadmg**aboa~d** the**atrcra~.** (3) The net quantity orgross weight, as applicable, for each ac • (c) A hazardous.maten.al may be earned aboard an

### a1rcra~ only 1f, age exceptthose containing Class 7 (radioactive) materialp Fk-

### ~**b~sed** on the 1nspect1on.

### ~y the operator, the package, outs1de con- a shipment consisting of multiple packages containing has. or 41 ta1ner, oroverpack conta1n1ng the hazardous material: ous materials bearing the same proper shipping name zard- II!F£ (1) Has no holes,

### l~akage orotherindication that its integrity has identificat.ion number, only the total quantity and an

### indicatio~~~ • been compromised; and· the quantity ofthe largest and smallest package at each load· "!1 (2) For,C(ass 7 (radioactive) materials, does not have a broken location need to be provided; lng 11M**~eal,** except**pac~ages.** contained in overpacks ·need not be (4) The location ofthe packages aboard the aircraft;**~** mspected for sealmtegnty. , (5) Confinnation that no damaged orleakingpackages have been • (d) The requirements of paragraphs (b) and (c) of this section do loaded on the aircraft; \'l not apply to Dry ice**_(c~rbon** dioxide, solid}.

. .(6) For Class 7**(rad~oactive)** "!aterials, the number of packages**~** {e) An overpack contammg packages of hazardous matenals may overpacks or fre1ght contamers, their category, transport**inde~ ~**  be acc::epted only ifthe operator has taken all reasonable steps to (if applicable), and their location aboard the aircraft; .t establish that:

. 1 _, . (7) The date ofthe flight;**~** (1) The overpack**doe~** notcontain apackage bearing the' "CARGO (8) The**teleph~ne num~er**  of a**P.erso~** not aboard the aircraft from 

## 1 AIRCRAFT ONLY label unless- whom the mformat1on contamed 1n the notification of pilot-in- " (i) The overpackaffords clear visibilityof and easy access to command can be obtained. The aircraft operator must ensure Iii

the package;**t~e** telephone number is monitored at all times the aircraft is in**~** (ii)**~he** package contains amateria/which may be carried inacces-**flig~t. T~e** **teleph.on~** number is**n~t** required to be placed on the 

### ej s1bly underthe provisions of§175.75(e); or**not1fi?at1~:m** of**Pllot-1~-con:mand** 1f the phone number is in a**~** (iii) Not more than one package is overpacked.**locat~on** m. the cockpit available and known to the flight crew. llliii (2) The propershipping names, identification numbers, labels and (9)**G_onftrm_a~ton** that the**p~ckage** must be carried only on cargo '.: special handling instructions appearing on the inside packages are**aJrc~aft** If**~ts** transportation aboard passenger-carrying aircraft is .a clearly visible or reproduced on the outside ofthe overpack, and

### forbl~de~, a_nd

. ".! (3) Has determined that word "OVERPACK': or until October 1, (10)**A~** mdtcat!on, when applicable,**th~t** a haz_ardous material is iii 2007 a statement to the effect that the inside packages comply betng earned under terms of a spec1al perm1t.**~** with the prescribed specifications, appears on the outside ofthe (11) For UN1845,**C?a~bon** dioxide, solid (dry ice), only the UN num- .llliii overpack, when specification packagings are prescribed. ber, proper**sh1pp1n~** name, hazard class, total quantity in each**~** hold aboard the a1rcraft, and the airport at which the pack- •. §175.31 Reports of discrepancies. age(s) is to be unloaded must be provided.**~** (a) Each person who discovers a discrepancy, as defined in para- (b) A copy ofthe written notification to pilot-in-command shall be 

### a graph_ (b) of**t~is ~ection,**  relative to the shipf!lent of a hazardous readily**av~ilable t~**  the pilo!-in-command during flight. Emergency ..:: matenal followmg 1ts acceptance for transportation aboard an aircraft response mformat1on reqwed by Subpart G of Part 172 of this shall, as soon as practicable, notifythe nearest FAA Regional or Field subchapter must be maintained in the same manner as the written 

### @ Security Office by telephone or electronically, and shall provide the notification to pilot-in-command during transport of the hazardous Iii following information: material aboard the aircraft.**~** (1) Name andtelephone numberoftheperson reporting the discrepancy. (c) The aircraft operator must
- ail (2)**Nam~** ofthe**~ircraft oper~tor.**  (1)**Retain~** Cf?PYofthe shipping r:aperrequired by §175.30(a)(2) or an "'= (3) Spectfic location ofthe shtpment concerned. electromc 1n:age thereof, that 1s accessible at or through its principal •. (4) Name ofthe shipper. place ofbus1ness and must make the shipping paperavailable upon (5) Nature ofdiscrepancy. request, to an authorized official ofa federal, state, or local**g~vem-** (6) Address ofthe shipper or person responsible for the discrep- ment agency a!

### r~asonable times and locations. For a hazardous 

### @ ancy, if known, by the air carrier. waste, each**s~lp~lng** paper copy must be retained for three years " (b) Discrepancies which must be reported under paragraph (a) of after the**mat~nal·** IS**acce~te~** by the initial carrier. For all_other haz- .., this section are those involving hazardous materials which are ardous matenals, each sh1pp1ng**pap~r ~PY**  must be**reta1n.~.**bythe improperly described, certified, labeled, marked, or packaged, in a**~perator**for**~:m~** year afterthe**maten~l1s** accepted by the Initial car- 

# 4
manner not ascertainable when accepted under the provisions of ner. Each s_hlpping paper copy**mu~t !~elude**  the date ofacceptance §175.30(a) ofthis subchapter including packages or baggage which by_the can:er. The**~ate o~**  the**sh1pp~ng pa~er**  may be the date a 

## 4l are found to contain hazardous materials subsequent to their being**~hipper ~ot~fies**  the air cam.er t_hat a**~h1pmen_t** 1s ready fortransporta-

... offered and accepted as otherthan hazardous materials. tJon, as**Jndlcat~d** on th.e**a~r** bill or bill of lad1ng, as an alternative to 

## t' the_**d.~te** the _shipment IS p1cked up or accepted by the carrier. Only §175.33 Shipping paper and notification of pilot-in-command. (a) When a hazardous material subject to the provisions of this subchapter is carried in an aircraft, a copy ofthe shipping paper required by §175.30(a)(2) must accompany the shipment it covers during transportation aboard the aircraft, and the operator of the aircraft must provide the pilot-in-command with accurate and legible written information as early as practicable before departure of the aircraft, which specifies at least the following: (1) The propershipping name, hazard class and identification number of the material, including any remaining aboard from prior stops, as specified in §172.101 ofthis subchapter or the ICAO Technical Instructions. In the case of Class 1 materials, the compatibility group letter also must be shown. If a hazardous material is described by the proper shipping name, hazard class, and identification number appearing in: (i) Section 172. 101 ofthis subchapter. Except for the requirement to indicate the type of package, any additional description requirements provided in §§172.202, and 172.203 of this subchapter must also be shown on the notification. (ii) The /GAO Technical instructions (IBR, see §171.7 of this subchapter), any additional information required to be an**l~ltJal** earner**~ust** receive and retain a copy ofthe shipper's certi- lli1ii ticat1on, as reqUired by §172.204 ofthis subchapter. • (2)**Ret~i~** a copy ofeach notification of pilot-in-command, an elec- .; tromc 1mage thereof, or the information contained therein for 90 'I!!! days**~t** the airport of departure or the operator's principal place .ali of busmess. • (3)**Hav~** the inforrr:ation required to be retained under this paragraph •.· readily ac?ess1ble at the airport of departure and the intended air- W port ofarnval for the duration ofthe flight leg. •. (4) Make available, upon request, to an authorized official of a Fed- ll!!!' era!, State, or local government agency (including an emer- .&_· gency responder(s)) at reasonable times and locations the 'I! documents or information required to be retained by this paragraph. In the event of a reportable incident, as defined in • §171.15 of this subchapter, make immediately available to an .& authorize.d official of a Federal, State, or local government 'l!!l**ag~ncy (m~luding**  an emergency responders), the documents or mformat1on required to be retained by this paragraph. 

# i (d) The**docume~ts** re_quired by paragraphs (a) and (b) this section 8 may be combmed mto one document if it is given to the pilot-in- • command before departure ofthe aircraft. 

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