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UNITED STATES DEPARTMENT OF TRANSPORTATIQNF:'-

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OFFICE OF HEARINGS 

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HEARING 

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In the matter of 

EMPIRE AIRLINES, INC 

DMS No. FAA-2009-0586 

= S 

FAA DOCKET NO. 

CP09NM0009 

FAA Case No. 

2007NM700155 

TuesdayOctober 26, 2010 

U.S. Bankruptcy Court for the 

District of Oregon 

Portland Office 

1001 SW 5th Avenue 

Portland, Oregon 97204 

The above-entitled matter came on 

for hearing, pursuant to notice, at 1:33 p.m. 

BEFORE: 

THE HONORABLE RICHARD C. GOODWIN 

Administrative Law Judge 

(202) 234-4433 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 www.nealrgross.com 
APPEARANCES: 

On Behalf of the Federal Aviation 

Administration: 

SCOTT R. MORRIS, ESQ. 

of: Office of Regional Counsel 

Federal Aviation Administration 

1601 Lind Avenue, S.W. 

Renton, Washington 98057 

(425) 227-1417 

fax -1007 

On Behalf of the Respondent 

n 

COURTNEY E. FELTS, ESQ. 

Senior Attorney 

of: Federal Express, Inc. 

3 620 Hacks Cross Road 

Building B, 3rd Floor 

Memphis, Tennessee 38125-8800 

(901) 434-8632 

fax -8283 

and 

LAWRENCE W. BIERLEIN, ESQ, 

1101 30th Street, N.W. 

Suite 500 

Washington, D.C. 20007 

(202) 625-8355 

fax -4363 

ALSO PRESENT; 

Kyle Lomazow, Esq., FAA 

r 

(202) 234-4433 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 www.nealrgross.com 
r^ TABLE OF CONTENTS 

WITNESS DIRECT 

Donald Stiger 13 

Thomas Kenny 92 

OPENING STATEMENT 

FAA 

Respondent 

CROSS 

77 

106 

REDIRECT RECROSS 

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EXHIBITS 

MARKED FOR RECEIVED IN 

IDENTIFICATION EVIDENCE 

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C-9 -

C-10-

C-11-

C-12-

C-13-

C-14 

C-15-

Agent Statement 

Inbound Dangerous 

Goods Flight Info 

Feeder Aircraft 

Load Sheet 

Photographs 

Contents of Shipment 

Aircraft DG Manifest 

Tracking Documents 

Photographs 

Safety Material Data 

Sheet 

Letter of Investigation 

Letter of Response 

Administrator's 

Sanction Guidance 

D-85 Air Carrier 

Operations Specifitions 

DG Ops Specs 

Photographs 

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56-57 

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60-61 

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(202) 234-4433 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

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P-R-0-C-E-E-D-I-N-G-S 

1:30 p.m. 

JUDGE GOODWIN: On the record. 

This is the case of Empire 

Airlines, Federal Aviation Docket No. 2009-

0586, Civil Penalty No. is 09, November 9, 

2009. 

Counsel, will you identify 

yourselves? 

MR. MORRIS: Sir, the FAA will be 

represented by myself, Scott R. Morris, the 

Office of Regional Counsel, Northwest Mountain 

Region, for the FAA, 1601 Lind Avenue, S.W., 

Renton, Washington 98057. 

Kyle Lomazow will also be present, 

FAA. 

JUDGE GOODWIN: Counsel? 

MS. FELTS: Your Honor, Empire 

Airlines will be represented by myself, 

Courtney Felts, Fed-Ex Express, 3 620 Hacks 

Cross Road, Building B, 3rd Floor, Memphis, 

Tennessee 38125, and also my co-counsel. 

(202) 234-4433 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 www.nealrgross.com 
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Laurence Bierlein, 

Washington, D.C 

He's located in 

JUDGE GOODWIN: Because it's a new 

record I'll go over a couple of things we 

discussed yesterday. 

As I indicated in past cases, Ms. 

Felts, the Court is concerned about, because 

everything goes on the internet, exhibits, 

transcript and everything else. I'm going to 

ask both counsel to make sure that one witness 

testifies, have him use the business address, 

not your personal phone number, not their 

personal addresses. 

I ask you to review any pleadings 

you've got, if there's any personal 

information let's redact it before it becomes 

a part of the record. I've got a black felt 

tip magic marker, permanent marker, if we need 

to do so. 

All of the pleadings can be found 

in regulations.gov by typing in either of the 

docket numbers 

(202) 234-4433 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 www.nealrgross.com 
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Counsel, do you want to make an 

opening? 

MR. MORRIS: Yes, sir. 

Before I do, there is an 

administerial matter I need to correct. The 

Move to Amend the complaint, specifically, 

paragraph II, No. 1, should say after Part 

121, say and 13 5. 

JUDGE GOODWIN: Do you have any 

objection, Ms. Felts? 

MS. FELTS: No, Your Honor. 

JUDGE GOODWIN: Okay. I've got a 

case, I don't know if you remember it, Mr. 

Morris, where the respondent was pro se, and 

FAA counsel sought to amend it to reduce the 

amount of fine requested and the respondent 

objected, 

MR. MORRIS: That was not mine, 

sir. 

JUDGE GOODWIN: I t was Mr, 

Galencho's case . I overrule d hi s objection . 

MR. MORRIS On that , sir , jus t a 

(202) 234-4433 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 www.nealrgross.com 
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very brief opening. 

JUDGE GOODWIN; Yes, okay, so I 

just got the complaint up, so we are amending 

what? 

MR. MORRIS: It will be -- give me 

a moment here, sir -- it is the II 

JUDGE GOODWIN: Okay. 

MR. MORRIS: Letter one, it's on 

page two of the complaint 

JUDGE GOODWIN: Right. 

MR. MORRIS After the word Part 

121 

135 

JUDGE GOODWIN: Right. 

MR. MORRIS: Adding the words, and 

So, it's Parts 121 and 135 of the 

Operations. 

JUDGE GOODWIN: So, we are adding 

the words "and Part 135." 

sir. 

(202) 234-4433 

MR. MORRIS: And Part 13 5, yes. 

JUDGE GOODWIN: Yes, okay. 

Opening? 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. ^ 

WASHINGTON, D.C. 20005-3701 www.nealrgross.com 
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MR. MORRIS: Sir, with that, the 

only opening, it will be very brief, it 

concerns this case and an August 22, 2007 

Special Agent, Agent Stiger, and his 

supervisor, Tom Kenny, were conducting a ramp 

inspection down in Medford, Oregon. 

At that time, they observed two 

different flights during the operations of the 

subject of this complaint against Empire Air, 

during the -- prior to this, they gathered the 

appropriate paperwork to determine what was 

supposed to be on the aircrafts in both 

situations. 

On the first flight, there was 

identified hazardous material being Class A 

Corrosives. However, according to the 

paperwork, the hazardous material was supposed 

to be in Position 1, which is in the --

basically, the air frame of the aircraft, as 

opposed to when they observed the aircraft 

land, and during the offloading they, 

actually, discovered that the hazardous 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

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materials was found in one of the locations in 

the pods, specifically, a section called Pod 

C of the aircraft. 

You will hear testimony of the 

importance of that, but, basically, the 

allegation concerning the first aircraft is, 

the hazardous material was not in the location 

it was supposed to be on the flight, down at 

the receiving end of the hazardous material, 

or down at the receiving end of the facility. 

The second flight involves another 

Empire Air flight that arrived from Portland 

to Medford, and in that the information from 

the hazardous materials documents was there 

was no DG aboard, dangerous goods. 

In this case, however, during 

offloading operations, it was identified or 

brought to their attention that there were two 

improperly marked shipments, marked ORM-D, 

without shipping papers that had been accepted 

and transported from Portland to Medford by 

Empire Airlines. 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

(202) WASHINGTON, D.C. 20005-3701 234-4433 www.nealrgross.com 
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It's improper, because it cannot 

go with an ORM-D marking, it must go by an 

ORM-D air marking, and must have accompanying 

it shipping papers, which was not accompanied 

in this case. 

Furthermore, you'll hear testimony 

in this case concerning once the containers --

or, excuse me, once the packages were opened, 

it was discovered that it could not -- it did 

not even qualify to fly by air, because of the 

inner packaging. 

Now, the Agency is not saying that 

Fed-Ex should have known as far as the 

specifics of the inner packaging, what we are 

saying, though, is that the ORM-D marking 

placed them on notice, excuse me. Empire Air 

placed Empire Air on notice that there was an 

inconsistency between what was disclosed on 

the notice versus what was, actually, flown in 

the aircraft. 

And finally, you will hear 

testimony concerning the sanction in this 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

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case, the $20,000 proposed, is consistent with 

the Administrator' s Sanction Guidance, and, in 

fact, we request that against Empire Airlines. 

JUDGE GOODWIN: Ms. Felts, do you 

want to reserve or be heard? 

MS. FELTS: I have a few things 

I'd like to briefly notice. 

JUDGE GOODWIN: Go right ahead. 

MS. FELTS: Thank you, Your Honor. 

You will hear today about a matter 

involving Empire Airlines, as Mr. Morris 

noted, they are a regional cargo carrier 

headquartered in Idaho. 

They provide air cargo support to 

Fed-Ex Express, and that relationship and 

those services are important, and you'll hear 

more about that. It's important for part of 

this case. You'll hear about what Empire does 

in the context of that relationship with FedEx, what they do do, and what they don't do, 

what tasks and functions they do perform and 

don't perform, and how that all relates to the 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

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matters raised and the charges enumerated in 

this civil penalty action, which are largely 

the same charges and circumstances as present 

in a case against Federal Express that we 

talked about the other day. 

So, Empire Air is concerned about 

being held accountable for some issues that 

are relating to Fed-Ex shipments. You'll hear 

more about that in testimony about that, and, 

accordingly, is concerned about being 

sanctioned in this matter at all. 

JUDGE GOODWIN: 

preliminary matters, sir? 

MR. MORRIS: No, sir 

MS. FELTS: No, Your Honor, 

Any other 

JUDGE GOODWIN; Call your first 

witness 

sir. 

right hand, 

(202) 234-4433 

MR. MORRIS: We call Agent Stiger, 

JUDGE GOODWIN: Sir, raise your 

Please, be seated. State your 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 www.nealrgross.com 
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full name for the record, and spell your first 

and last name, please. 

MR. STIGER: My full name is 

Donald, D-O-N-A-L-D, Stiger, S-T-I-G-E-R, 

WHEREUPON, 

DONALD STIGER 

was called for examination by Counsel for the 

Agency, and having been first duly sworn. 

testified as follows: 

DIRECT EXAMINATION 

BY MR. MORRIS: 

Q Agent Stiger, please provide your 

full business address and where you are 

currently employed. 

A My full business address is 7303 

Northeast Alderwood Road, Portland, Oregon 

97218. 

Q And, where are you employed? 

A And, I'm employed with the U.S. 

Department of Transportation, Federal Aviation 

Administration, here in Portland, Oregon. 

Q Would you describe your aviation 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

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background and experience? 

A My aviation background, I was a 

rotary wing helicopter pilot for five years 

with the United States Army. 

Q Okay, and would you describe your 

hazardous materials background and experience? 

A My hazardous materials background 

is, I was hired on with the Federal Aviation 

Administration as Hazardous Material 

Specialist in January of 1997. Prior to that, 

I worked as a Safety Investigator with the 

Office of Motor Carriers, Federal Highway 

Administration, where part of my duties, as 

well as enforcing the Federal motor carrier 

safety regulations, I also enforced the 

hazardous materials regulations, as they 

pertain to ground transport. 

Q And so, you've been with the 

Agency 13 years, just over 13 years? 

A Just over 13 years, that's 

correct. 

Q What training have you received on 

(202) 234-4433 

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COURT REPORTERS AND TRANSCRIBERS 

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hazardous materials, the regulation of 

hazardous materials? 

A Various training from initial 

training that we received coming in to the 

FAA, various reoccurring training, as well as 

a number of specialized training from the 

Transportation Safety Institute in Oklahoma 

City. 

As part of your duties are you 

required to conduct investigations into 

violations of the hazardous material 

regulations? 

A Yes. 

Q In your time with the Government, 

to be more broad, just not FAA, but your 

previous experience with the other agency, 

approximately, how many investigations have 

you conducted for violations of the hazardous 

materials regulations? 

A Between FAA and at the time Office 

of Motor Carriers, I would say definitely in 

excess of probably 600 or so different 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

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investigations. 

Q Okay. And, what are your current 

duties and responsibilities? 

A I'm currently responsible for 

enforcing the hazardous material regulations, 

as they pertain to the shipping and transport 

of materials by air in my geographical area of 

responsibility. 

Q Have you previously testified as 

an expert in the area of hazardous materials 

regulations in air commerce? 

A Yes, I have. 

MR. MORRIS: Your Honor, I'd offer 

Agent Stiger as an expert in the area of 

hazardous materials regulations in air 

commerce. 

JUDGE GOODWIN: Ms. Felts, do you 

want to voir dire? 

MS. FELTS: Your Honor, we would 

have the same objection as yesterday. 

JUDGE GOODWIN: Well, you've got 

to remember it's a new case. 

(202) 234-4433 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 www.nealrgross.com 
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MS. FELTS Yes, and I would 

submit could we handle it similar to how we 

did yesterday, where we could limit the area 

to being able to read the 49 CFR. 

JUDGE GOODWIN: I find him as an 

expert in the area that you proffered him for. 

MR. MORRIS: Thank you. 

BY MR. MORRIS: 

Q Agent Stiger, do you recall 

conducting a random inspection of Empire 

Airlines on August 22, 2007? 

Q 

Yes. 

Why were you there? 

For their part of routine 

inspections of air carriers in the Medford, 

Oregon area. 

Q Okay, is Medford within your 

jurisdictional area of responsibility? 

A Yes, it is 

Q So, you would go there as part of 

your normal course of your business 

activities? 

(202) 234-4433 

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A Yes. 

Q Okay. And, was anyone else with 

you on this particular inspection? 

A At that particular time, my 

supervisor, Thomas Kenny, was also 

accompanying me during the inspections. 

Q Okay, 

MR. MORRIS: Your Honor, I forgot 

to ask the sequestrations of witnesses. 

JUDGE GOODWIN: Do you have any 

objection to sequestration? 

MS. FELTS: No, Your Honor, that's 

fine. 

JUDGE GOODWIN: Okay. Any of the 

witnesses that are potentially going to 

testify in this case, I'm going to ask you to 

step out. There's a waiting room down there. 

If you are going to be out of the area, just 

let your counsel know if you go down to the 

coffee shop or some other place. 

MR. MORRIS: I'm sorry for that 

oversight, sir. 

(202) 234-4433 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 www.nealrgross.com 
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JUDGE GOODWIN: That's all right. 

BY MR. MORRIS: 

Q Agent Stiger, what did you do as 

part of your investigation in Medford? 

A As part of the inspection and 

investigation initially was, we had a schedule 

of inbound flights from Empire Airlines, from 

Portland. We asked Fed-Ex station personnel 

for the information of the two flights, in 

order to compare if the information that was 

provided on the down-line station matched what 

was, actually, offloaded from the aircraft. 

Q Okay. And, as part of your 

investigation as a matter of course for you, 

do you prepare an agent statement as to the 

activities that you conduct? 

Q 

Yes, I do. 

Okay. Would you please turn to C1 for identification? 

(202) 234-4433 

(Whereupon, the document was 

marked for identification as 

Exhibit No. C-l.) 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

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BY MR. MORRIS: 

Q Do you recognize this document? 

A Yes. This is my statement. 

Q Okay. Does this -- is this 

document made at or near the time that you 

observed the activities that you did on August 

22, 2007? 

A Yes. 

Q And, is this prepared in the 

ordinary course of your business activities 

when you conduct an investigation? 

A Yes, it is. 

Q And, is it a fair, accurate 

representation of the activities that you 

conducted during your investigation? 

A Yes. 

MR. MORRIS: Your Honor, I'd offer 

C-l for identification as C-l. 

MS. FELTS: No objection. 

JUDGE GOODWIN: C-l for 

identification is received in evidence as C-l, 

Complainant's 1. 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

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(Whereupon, t h e document 

previousl y marke d fo r 

identificatio n as Exhibit C-l, was 

received in evidence.) 

BY MR. MORRIS: 

Q Now, you mentioned earlier that 

you acquired documents concerning these 

flights? 

Yes 

Okay. Would you please turn to C2 for identification? 

(Whereupon, the document was 

marked for identification as 

A 

Exhibit No. C-2.) 

Do you recognize this document? 

That is the inbound dangerous 

goods or hazardous materials information that 

was provided when asked for from the Federal 

Express station personnel in Medford. 

Q Okay. Now, this concerns Flight 

8672, is that correct? 

A It was Flight 8678-22. 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

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Yes, thank you, 8678-22. 

And, the aircraft that was flown 

in this particular flight was November 778 Fox 

Trot Echo? 

That is correct. 

Q Okay. Only one aircraft in the 

United States can have that tail number, is 

that correct? 

A My understanding is, tail numbers 

are unique to each aircraft in the United 

States 

Q Okay. So, explain to me what this 

document told you, as far as the hazardous 

materials on this flight from POS, the origin, 

is that -- that's Portland, correct? 

A POS is Portland International 

Airport, Portland, Oregon. 

Q 

A 

Oregon. 

Q 

A 

(202) 234-4433 

And, MFR? 

MFR is the designator for Medford, 

And, the C2A, is that a caravan? 

That is the type of equipment or 

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as explained by the aircraft, what type of 

aircraft it is, yes. 

Q So, this inbound dangerous alert, 

basically, just tells you the flight, being 

8678-22, the date of the flight, where the 

flight originated, where it was going to, what 

types of aircraft was involved, and what 

aircraft tail number we are referring to in 

this document. 

A Yes. 

Q Okay. So, what does this document 

tell you as far as the position of the 

hazardous materials on this flight? 

A In this particular case, this 

document indicates that there was three 

different classes of hazardous material on 

board, in the bulk or what was indicated as 

position one, which is commonly described in 

the industry as a main deck on that. 

Q The internal portion of the 

aircraft? 

Yes 

(202) 234-4433 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 www.nealrgross.com 
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Q Okay. 

A In this particular case, the main 

deck also includes the pilot and right behind 

the pilot is where a lot of the freight is 

loaded. 

Q So, for the average person that's 

not familiar with cargo aircraft, it's where 

all the seats are in a plane normally. 

A Correct. 

Q Okay. And, this document, the one 

under POS, does that indicate the position 

where this hazardous material was supposed to 

be? 

A Yes. 

Q Okay. Now, this exhibit consists 

of two pages. What's the significance of page 

two? 

A Page two, basically, has a lot of 

the same information on there. In this 

particular case, it shows that there was --

or, in this system, the auto DG system that's 

utilized by Empire Airlines, is indicating 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

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that there was also -- there was freight 

loaded in on the main deck, and it indicated 

that the pods A, B, C and D were void on 

there. 

I utilized that information to 

determine if there was any additional 

hazardous materials located in any of the 

letter-named pods, which are, actually, 

located on the bottom of the Cessna 208 

aircraft. 

Q Okay, so this tells you that 

there's not supposed to be any HAZMAT in the 

pods, but it's all in the main --

A Main deck. 

Q -- main deck. 

A Correct. 

Q Okay. 

MR. MORRIS: Your Honor, I offer 

C-2 for identification as C-2. 

MS. FELTS: No objection. 

(Whereupon, the document 

(202) 234-4433 

previousl y marke d for 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 www.nealrgross.com 
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identification as Exhibit C-2, was 

received in evidence.) 

BY MR. MORRIS: 

Did you observe this --

JUDGE GOODWIN: The document 

marked C-2 for identification is received. 

MR. MORRIS: Oh, I'm sorry, sir. 

BY MR. MORRIS: 

Q Did you observe the Empire air 

flight arrive? 

A Yes, we did. 

Q And, that was, was that Empire 

Flight 8678-22? 

Q 

Yes, it was. 

Okay. And, it was, in fact, tail 

number 77 8FTE? 

Yes. 

And, is this aircraft on Empire 

Air's operation specifications? 

A Yes, it was 

Q Okay. What did you observe during 

the offloading operations of 778FTE? 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

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A We observed the offloading of 

freight, as well as hazardous materials, and 

noted that the corrosives were, actually, 

offloaded from one of the pods underneath, 

which did not correspond to the down-line 

information that was provided at the time that 

we asked for it. 

Q Okay. So, what do you mean by a 

pod again? 

The lower 

portion on the Cessna 208 

the lower cargo 

Q Okay. 

A Which are separate from the main 

deck. 

Q Okay, and then A, B, C and D pods, 

portions of the pod it's segregated? 

A Each pod is segregated, of the 

ones that I've seen, yes. 

Q Okay. Please turn to C-3. 

(Whereupon, the document was 

marked for identification as 

Agency Exhibit No. C-3.) 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

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BY MR. MORRIS: 

Q Do you recognize this? 

A Yes, I do. 

Q What is this document? 

A This is a document that was 

utilized by Empire Airline pilots. They 

indicate it's a feeder aircraft load sheet. 

A lot of the weights and other information is 

put on there, as well as sometimes there will 

be additional dangerous goods or hazardous 

materials information placed on those load 

sheets. 

Q Okay. Now, on Exhibit C-3, the 

first page, does the date, flight number, 

aircraft number, origin and destination all 

match up with C-2? 

A Yes, they do. 

Q Okay. Now, looking at this 

document down on the right-hand side, next to 

Pod C, there's an indication of corrosives. 

A Yes. 

Q Do you know why that's there? 

NEAL R. GROSS 

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the pilot. 

That was -- that was put there by 

When? 

A The indication was that the pilot, 

when the aircraft was being loaded in Portland 

International Airport, that the position had 

changed, he changed position. He determined 

to load the corrosive materials in Pod C, so 

he noted that on that Feeder aircraft load 

sheet. 

Q Okay. And, is that consistent 

with Empire's Hazardous Materials Program, 

where the pilot does the pre-inspection and is 

responsible for the loading of the aircraft? 

A Yes. 

MS. FELTS: Objection, Your Honor. 

JUDGE GOODWIN: What's the basis? 

MS FELTS: The basis is 

knowledge, he doesn't work for Empire 

Airlines 

JUDGE GOODWIN; I can't hear you. 

(202) 234-4433 

MS. FELTS: Agent Stiger does not 

NEAL R. GROSS 

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work for Empire Airlines. He's giving an 

opinion as to what their program entails. 

JUDGE GOODWIN: I'll sustain it, 

there's no foundation. 

BY MR. MORRIS: 

Q Have you seen Empire operations as 

part of your investigative and duties as an 

FAA Hazardous Materials Inspector? 

A Yes, I have. 

Q Are you aware what their program 

requires as far as the loading operations for 

Empire Airlines, and the requirements for the 

pilots' responsibilities during loading 

operations? 

Yes 

Q And, in your observation, is it 

the normal course that the pilots are 

responsible for the loading of the aircraft? 

They don't, necessarily, personally load, but 

they have oversight of the loading of the 

aircraft that they are about to fly? 

Yes 

(202) 234-4433 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 www.nealrgross.com 
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Q You are also a pilot, are you not? 

A I was, I'm no longer certificated. 

I was. 

Q Okay. At that time, were you 

aware of the importance of weight and balance 

on any given aircraft? 

A Weight and balance is a very 

important factor in determining if the 

aircraft is airworthy. 

Q Because what happens if an 

aircraft's weight is too far aft during 

flying? 

A Too far aft, too far forward, or 

anywhere outside the flight envelope, becomes 

a danger, and may not fly. 

Q And, in fact, isn't it a pilot's 

responsibility to ensure that the weight and 

the center of gravity is within the envelope 

prior to any flight? 

Q 

Yes, it is. 

Okay. So, turning back to Exhibit 

3-1, dealing with the Pod C corrosives. Was 

(202) 234-4433 

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1323 RHODE ISLAND AVE., N.W. 

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it your understanding that this was changed by 

the pilot prior to departure from Portland? 

A Yes, it was. 

Q So, is that a problem? 

A No. 

Q Okay. How about the paperwork 

that we saw on Exhibit 2, in relation to the 

paperwork on Exhibit 3? 

A There was a discrepancy. 

Q So? 

A So, what happens is, there's --

when the information of loading on the 

aircraft was changed, therefore, that 

information was not transmitted to the downline station, the dovm-line station indicated 

that any of those materials, those corrosive 

materials, should have been on the main deck 

or position one of that Cessna 208. 

Q Okay. 

A And, in reality, it was in, 

actually. Pod C. 

Q Okay. So, what's the big deal if 

NEAL R. GROSS 

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the HAZMAT is in a different location on the 

aircraft than what's reported down line? 

A The information is important to 

emergency responders, should there be any 

incident while in flight, as well as anyone 

who would be responding to an incident with 

that aircraft. Part of what they would want 

to know, which is, in fact, why HM-206-C was 

published as final rule, was that the 

emergency responders, or responding personnel, 

would have complete, and accurate, and timely 

information of, not only what was on board, 

where it's on board, and any additional 

information that is needed to end up being 

able to respond to an emergency. 

Q You took one of the questions 

right out of my mouth, is was HM-206-C based 

on any NTSB recommendations as a result of 

accidents or incidents? 

A Yes, NTSB recommendation, I 

believe it was, 98-80, which, actually, was a 

result of five or, excuse me, four 

(202) 234-4433 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

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different Fed-Ex Express aircraft incidents 

that resulted in a recommendation that 

information gets transmitted down line. There 

was concern by the National Transportation 

Safety Board that from those incidents that 

the information was not timely available to 

emergency response personnel. 

Q Okay. And, for first responders, 

is there, in fact, some hazardous materials if 

you put water on it it does bad things? 

A That's correct. A lot of times 

alcohol would be different than, say, for 

normal flammable liquids on that, that may 

require a different type of method to fight 

the fire 

Well, what about the issue 

well, wait a minute, the pilot got the correct 

information, so can't the pilot just hand it 

to the first responder after the crash? 

A My understanding is, as a former 

pilot, if you are crashing and you have the --

the first thing you are thinking of is getting 

NEAL R. GROSS 

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out of there, the last thing you are thinking 

of is grabbing any paperwork with you, which 

was -- which, actually, in all the four 

incidents that the NTSB had indicated in their 

recommendation was that same thing, the pilots 

got out, or the crews got out, but they didn't 

carry the information with them. 

Q Okay. Now, turning to page 3-2 

and 3-3 and 3-4, what are these documents that 

are behind page C-3-1? What do these 

subsequent three pages demonstrate? 

A This right here is what's referred 

to --

Q This being what? 

-- 3-2 

Q Okay. 

A 3-2, in combination with the 

subsequent papers behind that, is what's 

utilized as the pilot notification. 

Q Okay. 

A DOT or the Pipeline Hazardous 

Materials Administration indicates in the 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

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regulation that you have to have the 

information, Various different carriers 

utilize different means. This is the means 

that's utilized by Empire to meet that NOPIC, 

pilot notification requirement. 

Q Okay. So, basically, the concern 

in this case was, he had a NOPIC, he just 

hadn't communicated the change in the location 

of the hazardous materials down range. 

A Correct, and in this particular 

case the auto DG printout that was provided, 

which is 3-2, the remaining pages on that, 

indicated initially that was loaded in the 

bulk, but he changed it on the feeder aircraft 

load control sheet. So, taken in total, I 

would look at that and say, yes, it would have 

all the information as the NOPIC on there, but 

since they had changed the loading of that in 

Portland, the down-line information was 

incorrect 

MR. MORRIS: Okay, Your Honor, I 

offer C-3 for identification, including all 

NEAL R. GROSS 

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five pages of C-3. 

MS. FELTS: No objection. 

JUDGE GOODWIN: Complainant's 3 

for identification is received in evidence as 

Complainant's 3. 

(Whereupon, the document 

previousl y marke d for 

identification as Exhibit C-3, was 

received in evidence.) 

BY MR. MORRIS: 

Q Did you take photographs of the 

flight when it arrived? 

A Yes, I did, 

Q Please turn to C-4 for 

identification, which is a series of four 

photographs. 

(Whereupon, the document was 

marked for identification as 

Exhibit No. C-4.) 

BY MR. MORRIS: 

Q And, I want you to walk me through 

each of these photographs, beginning with 

NEAL R. GROSS 

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photograph 4-1. 

A 4-1 is a picture of a Fed-Ex 

Express employee offloading -- had offloaded 

four packages, or, excuse me, it looks like 

five packages there, with three of them being 

indicated as corrosives in that picture from 

that pod that he currently has his head and 

body in. 

Q Okay. And, who took these 

photographs? 

A I did. 

Q Okay, and do all four of these 

photographs fairly and accurately represent 

what you observed on August 22, 2 007? 

A Yes, they do. 

Q Okay. If you'd please turn to C4-2, what does this photograph demonstrate? 

A This was one of the packages that 

it was, actually, as it was being 

physically removed from the Pod C of that 

Cessna 208. 

Q Okay. Now, who is the person 

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COURT REPORTERS AND TRANSCRIBERS 

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that's in photographs 4-1 and 4-2, do you 

recall? 

A That was a Federal Express Medford 

Station employee. 

Q Okay. And, turning to 4-3, what 

does this photograph represent? 

A This photograph represents all the 

shipments, or all the packages, that were in 

Pod C of that aircraft. 

Q And then, turning to 4-4, what 

does this photograph represent? 

A This photograph represents part of 

the position -- well, this photograph 

represents the positions of each of the pods 

and how they are identified on the aircraft. 

Pod A is at the very front, followed by Pod B, 

Pod C, Pod D, and then on the employee's 

position 1, or what's commonly referred to as 

the main deck on the Cessna. 

Q Okay. So, let's just be clear. 

Photograph 4-4 has five yellow square or 

rectangular blocks fixed on top of it, is that 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

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fair to say? 

A That is correct. 

Q And, who placed those yellow 

blocks and the letters or wordings inside 

those yellow blocks on this photograph? 

A I did. 

Q So, other than change, does this 

photograph fairly and accurately represent? 

A Yes, it does. 

Q Okay. And, A, B, C, and D are --

you are trying to explain where the pod 

positions are, and position one is where the 

main deck is what you are talking about? 

A That is correct. 

Q Okay. 

MR. MORRIS: Your Honor, I offer 

C-4 for identification as C-4. 

MS. FELTS: No objection, 

JUDGE GOODWIN: Complainant's 4 

for identification is received into evidence 

as Complainant's 4. 

(Whereupon, the document 

(202) 234-4433 

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COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

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previousl y marke d for 

identification as Exhibit C-4, was 

received in evidence.) 

BY MR. MORRIS: 

Q Okay, now let's talk about the 

second flight that you observed on August 22, 

2 007. Do you recall that? 

A Yes, I do. 

Q Okay, And, did you observe the 

Empire flight 8677-22 arrive in Medford, 

Oregon on August 22nd? 

A Yes, I did. 

you: 

Q 

Okay. Was Agent Kenny still with 

Yes, he was 

Prior to its arrival, did you 

acquire that flight's inbound dangerous good 

alert? 

A In that particular case, they 

indicated there was no dangerous goods on 

board, and they provided the inbound dangerous 

goods alert where they stated as such. 

NEAL R. GROSS 

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Q And, did you retain a copy of that 

document? 

Yes, I did, 

Please turn to C-5 for 

identification. 

(Whereupon, the document was 

marked for identification as 

Exhibit No, C-5.) 

BY MR. MORRIS: 

Q Do you recognize C-5? 

A Yes, I do. 

Q And again, looking at the top of 

C-5 they are talking about the flight number, 

the date that it occurred, originating from 

Portland, destination in Medford. The 

equipment was a 208, and the aircraft was 

November 940FTE, is that correct? 

A That is correct. 

Q Okay. And, this indicates that 

there's no DG on board about one third of the 

way down? 

A 

(202) 234-4433 

Yes, it does, 

NEAL R. GROSS 

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Q Okay. And, is November 940FTE, on 

the operations specifications of Empire Air? 

A Yes, it is. 

Okay. 

MR. MORRIS: Your Honor, I offer 

C-5 for identification as C-5 

MS. FELTS: No objection. 

JUDGE GOODWIN: Complainant's 5 

for identification is received in evidence as 

Complainant's 5 

(Whereupon , t h e documen t 

previousl y marke d fo r 

identificatio n a s Exhibi t C-5, was 

receive d i n evidence.) 

BY MR. MORRIS 

If you turn to C-6 for 

identification. 

(202) 234-4433 

(Whereupon, the document was 

marked for identification as 

Exhibit No. C-6.) 

BY MR. MORRIS: 

Is this, essentially, just a 

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verification of the earlier document C-5? 

A Yes, it is, with the difference 

being this is what the pilot was actually 

carrying with him. 

Q Okay. And again, so the pilot is 

also of the understanding that there's no 

hazardous material on board this aircraft. 

A Yes. 

Q Okay. 

MR. MORRIS: Your Honor, I offer 

C-6 for identification as C-6. 

MS. FELTS: No objection. 

JUDGE GOODWIN: Complainant's 6 

for identification is received into evidence 

as Complainant's 6. 

(Whereupon , t h e documen t 

previousl y marke d fo r 

identificatio n a s Exhibi t C-6, was 

receive d i n evidence.) 

BY MR. MORRIS: 

I ask you to turn to C-7 for 

identification. 

(202) 234-4433 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

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(Whereupon, the document was 

marked for identification as 

Exhibit No. C-7.) 

BY MR. MORRIS: 

Q What are these documents? 

A These are the tracking documents 

for two shipments. 

Q Okay. And, was the shipment with 

tracking number on the top left-hand side of 

page C-l, 731703530562, aboard Empire Air 

flight 8677? 

A Yes, it was, 

Q Okay, And, does this docioment 

indicate that this shipment, actually, flew 

from Portland to Medford? 

A Yes, it does. 

Q Okay. And, is this record 

maintained in the ordinary course of Empire's 

activities, or its agents' activities? 

A Not to my knowledge. 

Q Okay. So, where did you get this 

docioment from? 

(202) 234-4433 

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A I got this from the Federal 

Express Corporation website that tracks 

packages. 

Q Okay. And, the reason for that 

is, is that Empire Air is what we call a 

feeder for Federal Express? 

A Yes 

Okay. 

MR. MORRIS: Your Honor, I offer 

C-7, pages one and two, for identification, as 

C-7, pages one and two 

MS, FELTS: No objection. 

JUDGE GOODWIN: Complainant's 7 

for identification is received into evidence 

as Complainant's 7, 

(Whereupon , t h e documen t 

Q 

previousl y marke d fo r 

identificatio n a s Exhibi t C-7, was 

receive d i n evidence.) 

BY MR, MORRIS: 

Turnin g t o pag e 7-3 and 7-4 , i s 

thi s trackin g number als o one th e shipments 

(202) 234-4433 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

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WASHINGTON, D.C. 20005-3701 www.nealrgross.com 
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that you identified as coming off of the 

Empire Air flight 8677? 

A Yes. 

Q And again, does this demonstrate 

that this shipment, actually, flew from 

Portland, Oregon to Medford? 

A Yes, it does. 

MR. MORRIS: Your Honor, I offer 

7-3 and 7-4 for identification as, 

additionally, part of C-7. I think you've 

already admitted it, but just to make it 

clear. 

JUDGE GOODWIN: They are marked as 

page 3 of 4 and 4 of 4, all right. I've 

admitted the entire document. 

MR. MORRIS: Okay. 

BY MR. MORRIS: 

Q And, did you observe this Empire 

Air flight 8677 arrive at Medford? 

A Yes, I did. 

Q What did you observe? 

A I observed that when I arrived the 

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offload operations. 

Q Okay. As part of your inspection, 

did you take photographs of those operations? 

A Yes, I did. 

Q Turn to C-8 for identification. 

(Whereupon, the document was 

marked for identification as 

Exhibit No. C-8.) 

BY MR. MORRIS: 

Q Do you recognize these four 

photographs? 

A Yes, I do. 

Q Do each of these four photographs 

fairly and accurately depict what you observed 

on August 22, 2007, concerning Empire flight 

8677? 

A Yes, they do. 

Q Okay. And again, if you look at 

photograph 8-1, is the tail number of this 

aircraft visible on this photograph? 

A Yes, it is. 

Q And again , is 940FTE on th e Op 

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specs of Empire Air? 

A Yes, it is. 

Q Okay. So, other than that, what 

is the purpose of photograph 8-1? 

A The purpose of photograph 8-1 was 

to show the offloading of the aircraft. 

Q Okay. And, 8-2, what does that 

photograph represent? 

A That represents the two shipments 

that were identified as being offloaded from 

Empire aircraft tail number 940FTE, 

Q And, what's the significance of 

these two particular shipments that were 

offloaded? 

A The two particular shipments 

offloaded indicated on the markings next to 

the shipping labels as consumer commodity ORMD, which is not authorized in air 

transportation as a hazardous material. 

Q Why isn't it authorized? 

A It's not authorized in the sense 

that you would have to have a certification by 

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the shipper of an ORM-D-air, as well as a 

shipping document, to properly be shipped by 

air as a consumer commodity. 

Q Did you ask if there were any 

shipping papers that accompanied either of 

these two shipments? 

A I did that when I verified with 

the pilot if he had any shipping 

documentations, and all he had was the one 

document that indicated there was no hazardous 

materials on board. 

Q So, there were no shipping papers 

that accompanied these two shipments? 

A There was no shipping papers. 

Q Okay. And, in addition, is the 

ORM-D marking an authorized marking for air 

transportation? 

A No, it is not. 

Q Okay. Now, when the shipment --

when this shipment would have arrived in 

Portland, how would it have been moved from 

the aircraft that was reflected in Exhibit C-7 

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onto this aircraft that would have gone from 

Portland to Medford? 

A In my observations at Portland 

International Air Fed-Ex Station, normally 

what occurs is, the mainline flight, usually, 

an MB-11 or DC-10, will come in. That cargo is 

offloaded, and most of that cargo is contained 

in unit load devices. The unit load devices 

are offloaded from the aircraft, brought to 

the sort facility, rolled out where employees 

will then offload the freight on each 

individual package from the unit load device. 

They then get sorted. Employees there must 

look at the shipping label to determine where 

it's going. In this particular case, they'd 

be looking at that label that says MFRA, which 

tells him Medford, the Medford, Oregon 

station. 

From there, normally, what I've 

observed before is those shipments that are 

going by -- on a feeder aircraft, are then 

placed onto carts. The carts then are 

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attached to a tug, which is then brought out 

to each individual Empire aircraft, and from 

there they are physically offloaded one at a 

time, usually, offloaded into the main deck, 

as well as pods, by Federal Express employees. 

And, I had observed during that 

time that each package, as it is loaded or is 

usually on that roller, is scanned by Federal 

Express employees with the -- most of the 

times with the Empire pilot observing the 

loading. 

Q Okay. So, anyone who was scanning 

and loading these, the ORM-D marker would, 

literally, in this case, these two shipments, 

be within inches or an inch of what they are 

actually scanning. 

A That is correct. 

Q And, this is something that is 

supposed to be supervised by Empire Air's 

pilot during the loading onto his or her 

aircraft. 

A That is correct. 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

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Q Okay. And, is ORM-D a 

transportation unique marking? 

A ORM-D is a unique transportation 

hazardous materials identification marking. 

Q Okay. And, is an ORM-D package, 

or I should more appropriately say, an ORM-D 

air package, something that is required to be 

reported to the pilot on the pilot's NOPIC? 

A Yes, it is. 

Q Okay. Was that done in this case? 

A No, it was not 

Q Okay. Did you ask the pilot or 

Empire if they had any shipping papers that 

accompanied this shipment? 

A Yes, I did, down in Medford, when 

I asked for any shipping documents. 

Q And, they could produce none. 

A And, they produced none there, 

other than the indication that there was no 

hazardous material on board. 

Q Okay. Turning to photograph 8-3, 

what is this photograph? 

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COURT REPORTERS AND TRANSCRIBERS 

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A This is a photograph of the side 

of one of the shipments, indicating additional 

information that was printed to the package. 

Q So, this identifies the substance 

that's contained in this ORM-D marked package? 

A Yes 

And, the quantity? 

Yes. 

Q Okay. Turning to 8-4, what does 

this photograph represent? 

A This photograph identifies the 

inner packages, or the material that was 

inside the fiber board box. 

Q And, who opened the shipment? 

A In this particular case, the 

Federal Express station manager, John 

Phillips, opened the shipment to determine if 

it was a true hazardous material inside or if 

it was a reused package. 

Q Okay. So, once this shipment was 

opened, did anything about the inner packaging 

gain your attention? 

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COURT REPORTERS AND TRANSCRIBERS 

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A Yes, the screw type caps, there 

was no positive means over the screw type 

caps. 

Q And, what's the significance of 

that for air commerce transportation? 

A For this particular -- for a 

shipment to be designated as consumer 

commodity ORM-D air, it must meet the 

requirements in 49 CFR 173.27, and part of 

those requirements is for a screw type cap on 

the liquid you must have a positive means 

across that cap to prevent backing off and 

leaking of the material inside that inner 

package. 

Q Okay. So, what does that mean in 

terms of the ability to reclassify this 

shipment as an ORM-D air shipment? 

A You would not be able to 

reclassify this one as an ORM-D air. 

Q Since you could not reclassify 

this, what should this shipment have been 

classified as? 

(202) 234-4433 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

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A He goes back to the base 

classification, which in this case is an 

ethanol, ethanol flammable. Class 3, packing 

route 3. 

And, also have Un 

identification number of 1170? 

A Yes. 

MR. MORRIS: Your Honor, I offer 

the photographs at C-8 for identification as 

C-8. 

MS. FELTS: No objection. 

JUDGE GOODWIN: Complainants 8 for 

identification consisting of four photographs 

is admitted as Complainant's 8. 

(Whereupon , t h e documen t 

previousl y marke d fo r 

identificatio n a s Exhibi t C-8, was 

receive d i n evidence.) 

BY MR. MORRIS: 

I ask you next to turn to C-9 for 

identification. 

(202) 234-4433 

(Whereupon, the document was 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

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A 

marked for identification as 

Exhibit No. C-9.) 

BY MR. MORRIS: 

Do you recognize this? 

Yes, I do. 

What is this document? 

A This is the material safety data 

sheet that I acquired from the manufacturer of 

the Nexium Hand Sanitizer, the Royal House 

Corporation out of Miami, Florida. 

Q And, how is this document 

significant to your investigation? 

A This document is utilized to help 

me identify if the one material is a hazardous 

material, and to help classify the material, 

per the Department of Transportation 

Hazardous Material Regulations. 

Q Would you point out those portions 

of this MSDS that were important to you in 

your investigation? 

A Under item number two, I 

identified the hazard, it was identified as 

NEAL R. GROSS 

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the main hazardous ingredient, as an ethyl 

alcohol. I also utilized, under No, 3, the 

hazard identification, which they classified, 

which is an ETMIS code, indicated a 

flammability of 3, which a lot of times will 

lead to one to believe that it is a flammable. 

Under item number five, 

firefighting measures, they listed a flash 

point of 74 degrees, which is consistent with 

49 CFR 173.121 in determining the packing 

group. In this particular case, a flash point 

of 74 degrees F would indicate that a packing 

group flammable liquid. 

Q Okay. Anything else? 

A And lastly, a lot of times on 

Material Safety Data Sheets, though it's not 

required, the list -- the manufacturers will 

list transport information. In this 

particular case, it indicated that the 

material could be shipped by ground and rail 

as a consiimer commodity. It also indicated to 

refer to current regulations for exact 

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COURT REPORTERS AND TRANSCRIBERS 

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requirements. 

Q Okay. 

MR. MORRIS: Your Honor, I offer 

C-9 for identification as C-9. 

MS. FELTS: No objection. 

JUDGE GOODWIN: Complainant's 9 

for identification is received in evidence as 

Complainant's 9. 

(Whereupon, the document 

Q 

previousl y marke d fo r 

identificatio n as Exhibit C-9, was 

received in evidence.) 

BY MR. MORRIS: 

Did you, as a result of the 

observations to these two different aircraft, 

send Empire Airlines a letter of 

investigation? 

A Yes, I did. 

Please turn to C-10 

(Whereupon, the document was 

marked for identification as 

Exhibit No. C-10.) 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

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BY MR. MORRIS 

Do you recognize this document? 

Yes, I do 

What is that document? 

This is my letter of investigation 

that was sent to Empire Airlines 

Q Did you receive a response from 

Empire Airlines? 

A Yes, I did. 

MR, MORRIS: Your Honor, I offer 

C-10 for identification as C-10 

MS, FELTS: No objection. 

JUDGE GOODWIN: Complainant's 10 

for identification is received into evidence 

as Complainant's 10. 

(Whereupon, the document 

Q 

(202) 234-4433 

previousl y marke d fo r 

identificatio n a s Exhibi t C-10, 

was receive d i n evidence.) 

BY MR. MORRIS: 

Would you pleas e tur n t o C-11 . 

(Whereupon, th e document was 

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marked for identification Exhibit 

No. C-11.) 

BY MR. MORRIS: 

Q Do you recognize this document? 

A This was the letter of response I 

received back from Empire Airlines. 

Q Okay. What was the significance 

of the response to you in your investigation? 

A The overall impression that I 

received from this response was that Empire 

had, basically, indicated that they were not 

responsible for some of the violations that 

occurred. 

Q So, did they provide anything in 

terms of significant corrective measures or 

mitigating factors? 

A No. 

Q Okay. Now, as part of their 

response, and as you requested, did they 

provide you a copy of their hazardous 

materials extract of their General Operations 

Manual? 

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A Yes, they did. 

Q And, I ask you to turn to C-11-6, 

through C-11-44, is that the extract of their 

General Operations Manual for HAZMAT that they 

provided to you? 

A Yes, it is. 

Q Looking at the -- looking at this, 

I'm going to direct your attention to some 

specific pages. Would you turn to C-11-8? 

A Yes. 

Q And, according to its own manual, 

who does Empire state is responsible for 

compliance with all provisions of the HMR? 

A Empire Airlines, 

Q And, when Empire accepts a 

shipment, does this manual require that it's 

acceptance personnel verify that the outside 

package is labeled properly? 

A It verifies -- it does. 

Q Okay. Turn to C-11-11, looking at 

the, I guess it's about the fourth sentence 

down, beginning with, "Acceptance personnel 

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...," do you see that? 

A Under A? 

Q Under labeling A. 

A I'm looking under A. 

Q Dead center. 

A Dead center. 

Q After Subpart E. 

A I'm sorry, sir, you are indicating 

under marking, and then you have A and B, and 

then we are in A? 

Q We are in labeling A. 

A Labeling A, I'm sorry, I was 

looking under marking A. Labeling A, yes, 

under Subpart E. I see, "Acceptance personnel 

shall verify that the outside of the package 

is labeled." That is correct. 

Q Now, let's be clear. The ORM-D is 

not a label, is it? 

A Under Title 49, the Hazardous 

Material Regulations, an ORM-D is a marking 

Q It's a marking. 

A Not a label. 

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1 Q However, looking at their manual, 

2 look down at B-10. 

3 A It indicates ORM-D, other 

4 regulated materials. 

5 Q Okay. So, for purposes of their 

6 manual, they are calling it a label. 

7 A Yes. 

8 Q Okay. Does their program talk 

9 about rejection of HAZMAT shipments that are 

10 not compliant? 

11 A Yes. 

12 Q Please turn to page C-11-12, under 

13 Rejection of Non-Compliant HAZMAT. 

14 A Yes. 

15 Q What is their requirement? 

16 A "A non-compliant hazardous 

17 material shipment shall be rejected and 

18 segregated from all other cargo shipments to 

19 prevent accidental introduction into the 

20 transportation system. A record of rejected 

21 shipments should be maintained. Any shipment 

22 not in compliance must properly be disposed of 

NEAL R. GROSS 

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or corrected in accordance with the Hazardous 

Material Regulations for further 

transportation." 

Q Okay, thank you. 

Does the Empire program extend to 

its agents that are conducting loading 

operations for it? 

A Yes, they do. 

Q Please turn to C-13. Does it 

refer to its agents under loading stowage or 

handling procedures? 

A Yes, under loading stowage 

handling procedures, "No employee, agent or 

contract employee, unless trained in this 

function, may load or transport aboard an 

aircraft any hazardous material unless the 

shipment has met acceptance and packaging 

requirements, and the pilot in command 

notification has been completed." 

Q Okay. So, under its program, 

again, it's the pilot that's supervising the 

loading of HAZMAT on Empire's aircraft. 

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Q 

Yes. 

Okay. As part of Empire's HAZMAT 

program, is the pilot required to perform a 

pre-load inspection of the HAZMAT before it's 

placed on its aircraft? 

Q 

and A-2 

Yes. 

Please turn to page C-11-41, A-1 

A Appendix G, Fed-Ex Procedures for 

(A) Loading, "Loading and unloading of DG is 

handled by Fed-Ex ranked personnel. During the 

loading, the DG is separated from other 

freight, so the crew member may accomplish the 

pre-load inspection." 

Under 2, "A crew member must 

supervise the loading of DG. The requirements 

of compatibility, separation distances, 

accessibility, security and packaging 

orientation must be checked using Empire 

Airlines EADGL Form, Dangerous Goods Loading." 

Q Now, one of the things that I want 

to address is, often times, is it common in 

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the air industry that an aircraft is painted 

as though it's flying for one air carrier, 

when it is actually being operated by another 

entity? 

A Yes, it is. 

Q For example, if you are flying a 

regional jet for United Airlines, as an 

example, and you get on United Express, is it 

common in the industry that it's not United 

Airlines' actually operating that HAZMATcarrying flight, but some other regional 

carrier? 

That is correct 

Q Okay. Is that the situation here 

with Empire Airlines, because Empire Airlines' 

aircraft are painted as though they are Fed-Ex 

aircraft? 

That is correct. 

Q But, isn't there a requirement in 

the Federal Aviation Regulations to identify 

who is the operator of the aircraft? 

A Yes, there is. 

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Q And, where is that, what is the 

cite for that regulation, if you know? 

A That requirement is found in 14 

CFR 119.9B. 

Q Okay. I want you to turn to C-15 

for identification, 

(Whereupon, the document was 

marked for identification as 

Exhibit No. C-15.) 

BY MR. MORRIS: 

Q Do you recognize this photograph? 

A Yes. 

Q Who took this photograph? 

A I took this photograph. 

Q And, is 8907FTE an aircraft that's 

on Empire Air's operation specifications? 

A Yes, it is. 

Q Okay, but it's painted Fed-Ex 

feeder, is it not? 

A Yes, it is. 

Q Okay. Is this aircraft operated 

by Empire Air? 

(202) 234-4433 

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A Yes, it is. 

Q Okay. And, how can you tell from 

this photograph? 

A The initial photograph, the first 

photograph, shows, if you look by where the 

pilot's door is, a little bit to the left you 

can see some lettering, which is not readable 

in this picture, it gets a little more 

readable if you look at the second picture on 

there, adjacent to the pilot's door, and then 

on the third picture the information that's 

required under 14 CFR 119.9B indicates that 

this aircraft is being operated by Empire 

Airlines. 

Q Okay. So, in the aviation 

industry, if it walks like a duck, and talks 

like a duck, it may not be a duck. 

A That is correct. 

MR. MORRIS: Your Honor, I offer C 

-- the photographs at C-15 for identification 

as C-15 

(202) 234-4433 

MS. FELTS: No objection , 

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JUDGE GOODWIN: Complainant's 15 

for identification is received into evidence 

as Complainant's 15 

(Whereupon , t h e documen t 

previousl y marke d fo r 

identificatio n a s Exhibi t C-15, 

was receive d i n evidence.) 

BY MR. MORRIS 

I ask you now to turn to C-13 for 

identification. 

(Whereupon, the document was 

marked for identification as 

Exhibit No. C-12.) 

BY MR. MORRIS: 

Q Do you recognize this as the 

Administrator's Sanction Guidance? 

A C-13? 

Q C-13 -- or, I'm sorry, C-12, 

A Yes, I do. 

Q Okay. To the best of your 

knowledge or belief, did the Agency follow 

this sanction guidance? 

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A Yes. 

Q The sanction guidance in this 

case? 

A Yes. 

Q So, let's look at the factors set 

forth in the Administrator's Sanction 

Guidance. 

What was the risk category for the 

shipments that were marked ORM-D? 

A It was a Category B. 

Q Okay. So, why was it risk 

category B versus risk category C? 

A Because the base classification 

of the material, since it could not be 

reclassified as consumer commodity ORM-D, is 

a flammable Class 3. 

Q Okay. And, a Category B -- risk 

category B is a moderate weight. 

A 

Q 

A 

Q 

(202) 234-4433 

That is correct . 

Associated with this 

Yes 

So, in this case , ther e ar e two 

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improper acceptance violations for no shipping 

papers for each of the ORM-D shipments. 

correct? 

Q 

That is correct. 

And, there's two violations for 

improper acceptance for the improper markings 

of the ORM-D shipments themselves, is that 

correct? 

That is correct 

Q Okay. Did the shipments, to your 

knowledge, exceed the quantity limitations by 

a significant amount? 

A No. 

Q Okay. Did the shipments cause 

damage or interfere with commerce in this 

case? 

A No, 

Q Did someone other than Empire 

prepare the shipment for transport? 

A Prepare, it would have been the 

shipper, 

Q Okay. So, in tha t case , you would 

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have given it a minimum weight for that 

particular component. 

A That is correct. 

Q Okay. Did Empire rely on 

incorrect information from another source? 

A Yes. 

Q Okay. So, that would have applied 

a minimum weight in the totality of the 

analysis? 

history? 

Yes. 

Did Empire have a prior violation 

In this case, no. 

Q Okay. Now, because there's no 

violation history, that's not mitigating, is 

it? 

A It is not. 

Q In fact, that's the standard, it's 

only -- you only would up the ante as if there 

is a violation history, is that correct? 

A That is correct. 

Q Okay. So, looking at the sanction 

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matrix, if we turn to page 19448 in Exhibit C2, Empire is what kind of -- what group of air 

carrier is it? 

Q 

Empire is a Group 2 air carrier. 

And, that's by virtue of its 

pilots and number of aircraft it operates. 

correct? 

Q 

That is correct. 

Okay. So, what is the range. 

under the Administrator's Sanction Guidance, 

for 17530A violations of a Group 2 air 

carrier? 

A Anywhere between $5,000 to 

$27,500. 

this case. 

For each of the four violations in 

That is correct. 

Q Okay. And then, we still have the 

violation of the first flight, where the 

location of the hazardous material was 

improperly identified at the down station. 

Yes 

(202) 234-4433 

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1 Q Now, that's not specifically 

2 called out in the matrix, other than to 

3 address the other Part 175 violations, is that 

4 correct? 

5 A That is correct. 

6 Q So, you have one violation of a 

7 Group 2 air carrier, and what's the sanction 

8 range for other Part 175 violations for a 

9 Group 2 air carrier? 

10 A Between $5,000 and $15,000. 

11 Q Okay. So, there are five 

12 violations involved here. 

13 A Yes. 

14 Q So, the sanction range in this 

15 case is between $25,000 and $125,000. 

16 A That is correct. 

17 Q Does the Administrator's request 

18 for $20,000 fall within that range? 

19 A It's a little below. 

2 0 Q Okay. Does the Administrator's 

21 Sanction Guidance allow a downward deviation 

22 below the sanction range? 

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1 A Yes, it does. 

2 Q Okay. Why? 

3 A Based on the totality of all the 

4 circumstances involved. 

5 Q Okay. And, in this case, because 

6 of this, is it within the Administrator's 

7 discretion to, actually, seek a civil penalty 

8 below what would normally be within the range 

9 of the Administrator's Sanction Guidance? 

10 A Yes. 

11 Q Okay. So, let's assume that we 

12 just look at the two separate shipments, and 

13 consider, instead of the four violations, they 

14 are multiplacious for sanction purposes, and 

15 so you only have two, and then you add in the 

16 down -- the down station violation, so a total 

17 of three violations. 

18 A Yes. 

19 Q Isn't the sanction range in that 

20 case from $15,000 to $70,000? 

21 A Yes. 

22 Q So, the mid-range for that would 

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A That is correct. 

Q So, the $20,000, even if you 

consider it multiplacious, is at least on the 

lower end of the Administrator's Sanction 

Guidance. 

A That is correct. 

MR. MORRIS: Nothing further. Your 

Honor. 

JUDGE GOODWIN: Cross? 

CROSS EXAMINATION 

BY MS. FELTS: 

Mr. Stiger, how many you 

mentioned on direct with Mr, Morris that you 

had done, approximately, 600 inspections in 

the course of your career, how many 

inspections is that of Empire Airlines did 

that number include? 

A Of Empire Airlines? 

JUDGE GOODWIN: Ms, Felts, just to 

give you a heads up, I treat each case 

separately. So, you know, we may have covered 

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something in other cases, but assume that this 

stands alone. 

MS. FELTS: Yes, Your Honor. 

THE WITNESS: Just to give a rough 

ballpark figure, I would say anywhere over the 

course of -- that would have been -- strictly 

this is with the Federal Aviation 

Administration, not my prior ground experience 

with the Office of Motor Carriers, I would say 

anywhere from maybe around 75 to 100, over the 

course of my 13 years, or thereabouts. 

Q 

BY MS. FELTS 

I might not have been clear on my 

question, I'm sorry. I just want to make sure 

that I am asking the right -- that you are 

answering the right question. I'll start 

again. 

I was asking, how many inspections 

of Empire Airlines have you done. 

A How many of Empire Airlines? 

Q Yes. 

A Over tha t -- that's what I was 

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A 

Q 

A 

Q 

Okay, I wanted to be sure 

Around that many. 

Okay. 

On that, that's --

Okay, thank you. Okay. 

And, you mentioned in your Agent 

statement that you obtained the printouts of 

the inbound DG alert, outbound, the DG 

paperwork from Fed-Ex Express. 

A Yes. 

Q This is -- the Respondent in this 

case is Empire, so why would the paperwork 

with Fed-Ex Express? 

A Basically, that's -- the various 

carriers utilize different means in this, and 

that's how Empire meets that requirement, 

I've had other airlines that would 

meet that requirement differently. As an 

example, Ameriflight, what they will do is, 

since they are the feeder for United Parcel 

Service Airlines, Ameriflight pilots will. 

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1 actually, get the hazardous materials, they 

2 will load, or, they will load it, they will 

3 prepare their own pilot notification, and from 

4 there then they will contact their operations 

5 provided in that information. 

6 So, on the down-line station, at 

7 that time we also look at Amerif light, I would 

8 call their operations, ask for that 

9 information. 

10 Empire utilizes the Federal 

11 Express auto DG system to meet that dov^m-line 

12 information requirement. 

13 Another carrier that utilizes the 

14 same as, in this area, same as Amerif light, 

15 was Air Cargo, Incorporated, out of Wisconsin, 

16 and they utilize the same, because they were 

17 the feeder here for, at that time, AVX Air, 

18 which was part of the DHL system, they utilize 

19 the same aspect as Ameriflight. 

2 0 So, under HM-206-C, Research and 

21 Special Programs Administration said the 

22 information has to be available. They did not 

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dictate how that information was to get there. 

So, various different carriers used different 

modes to do it. 

My experience has been, is that 

Empire utilizes the auto DG system to meet 

that requirement. 

Q Thank you. 

And, you mentioned earlier, too, 

on direct with Mr. Morris, that the pilot had 

changed the load control sheet prior to 

departure, to reflect the Pod C location. Is 

that --

A That was my understanding. 

How did you get that 

understanding? 

A My understanding from the Fed-Ex 

personnel there in Medford, as well as the 

lead that was indicated in the letter of 

response from Empire Airlines. 

Q Okay. All right. 

And, with regard to those eight 

packages, I'm sorry, it's five packages. 

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excuse me, those five packages that were in 

Pod C when they were offloaded, did you 

observe any of them leaking? 

A No, I did not. 

Q 

them? 

A 

Q 

anything? 

Was there any odor coming from 

No. 

Packaging was in tact? 

Packaging was in tact. 

Was it wet on the outside or 

I had no indication that it was 

wet on the outside. 

Q Did you have any indication that 

the plane had to be diverted, or there was any 

other emergency response event with that 

flight? 

A No. 

Q And then, you mentioned, too, I'm 

jumping around a little bit, actually, I'm 

going to turn now to the next flight, the 

flight that had the ORM-D packages on it, the 

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second flight. You mentioned on your direct 

just a moment ago that a Fed-Ex manager opened 

up that package to reveal the hand sanitizer 

inside, did you instruct him to do that? 

A No, I did not. 

Q So, why did he open the package? 

A My understanding was, Mr. Phillips 

wanted to verify for himself that it was 

hazardous material, as opposed to a repackaged 

or a box that was used to repackage a nonhazardous shipment. 

Q And then, I'll ask you the same 

thing with this shipment that, actually, was 

those corrosive shipments, when you saw the 

inner -- the bottles inside, were any of them 

leaking? 

No, they were not. 

Q Or, emanating an odor? 

A No, you are talking in regards to 

the ones that were marked ORM-D? 

Q Yes, sir, that ORM-D package. 

A The ORM-D ones, no, there was no 

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indication of leakage. 

Q And, to your knowledge, there was 

no diversion or emergency response event with 

that flight. 

A No, there was not. 

Q Okay. And, you mentioned also. 

you mentioned in your Agent statement, that 

those packages, those ORM-D packages, were 

marked as ORM-D on both sides, yet there's one 

photo showing one side. Do you have a photo 

of the second side? 

A No, I do not, I only took the 

photos of the one on -- next to the shipping 

labels. 

Q Okay. Let's turn now to, if we 

could, the procedures in the Empire -- the 

material, the General Operations Manual that 

Empire provided to you. I'm just referring to 

it, I'm not going to point out anything 

specific, but I just wanted to highlight 

something that was mentioned in your exchange 

with Mr. Morris, regarding the language in 

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there about no employee, agent, or contract 

employee may load or transport, you know, 

hazardous materials on board. That's in the 

Empire manual. 

But, do you know that Fed-Ex is an 

agent of Empire, or if it's the other way 

around? 

A It probably depends on which 

function they are performing. 

Q Okay. 

A Normally, my experience in the 

transportation business is, you'll have 

various different companies performing various 

different functions. That does not relieve 

the one who is performing, or who is directing 

that function, the responsibility for that 

function being carried out correctly, per the 

Regulations. 

Q Okay. I'm going to turn now to 

the penalty guidance, the sanction guidance. 

a bit 

(202) 234-4433 

Now, in the actual -- and I don't 

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have the page reference in front of me, but I 

know you are familiar with what the document 

entails, the category, that's what I want to 

ask you about. Why wasn't this substance ORMD classified in Category C, but there's no 

differentiation for air? 

A This is categoried as a Category B 

because the package, as tendered at the time 

of the for air shipment, was not authorized. 

In other words, it could not have been classed 

as a consumer commodity ORM-D air for air 

transportation, because the inner packages did 

not meet the requirement for air 

transportation. 

Consumer commodity ORM-D is a twostep procedure. The first step is to identify 

it as, per 49 CFR 171.8, that it meets the 

definition of consijmier commodity, which is 

intended for and/or suitable for household 

use The next step, based on the base 

classification of the material, in this 

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specify you to 49 CFR 173.150. In that 

particular case, you'd have to also meet the 

limited quantity provisions. 

If you go and look at that, that 

requires, in other words, to be identified as 

a limited quantity for air transport, it must 

meet the requirements in 173 -- excuse me, 49 

CFR 173.27. 

Therefore, it does not pass that 

second step to be reclassified for air 

transport, and the shipper in this particular 

case offered these two shipments for air 

transport as priority overnight. 

Q But, isn't it true that the 

Category -- the guidance in Category C, that 

category, it has just ORM-D, it doesn't make 

any differentiation -- it doesn't say air, it 

just says ORM-D, isn't that true? 

A In that category, yes. 

Q Okay. And then, my final question 

is with regard to actual sanction that was 

levied against Empire, you noted in your 

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records review, and it's also discussed with 

Mr. Morris on direct, that Empire had no prior 

enforcement history, correct? 

A That is correct. 

Q And, you also noted that the 

$20,000 proposed sanction was a deviation, 

downward deviation from what the range you had 

in front of you according to the guidance, is 

that correct? 

Q 

That is correct. 

Why not -- why penalty at all 

then? 

Honor 

MR. MORRIS Objection, Your 

He doesn't get to make that 

determination, that's done by legal counsel. 

JUDGE GOODWIN: Overruled. 

THE WITNESS: My recommendation in 

this particular case was based on the response 

that I received back, that it would not have 

met the administrative criteria, because I 

made a determination that administrative 

action in this particular case would not --

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would not preclude further violations of the 

Hazardous Material Regulations with Empire 

Airlines 

Q 

BY MS. FELTS: 

How did you make that 

determination? 

A Based on the totality of the case 

and the response I received back from Empire 

Airlines. 

Okay. With regard do you not 

have the capacity to issue warning letters? 

I do have the capacity. In 

regards to consultation with my superiors, 

sometimes I do have that ability, to take 

administrative action. 

Q Have you ever done that before? 

A Yes, I have, 

MS, FELTS: Nothing further, 

JUDGE GOODWIN: Redirect? 

MR, MORRIS: No, sir, but I failed 

to earlier to offer C-11 and 12 for 

identification as C-11 and 12. 

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MS . FELTS: And, there's no 

objection. 

JUDGE GOODWIN: I'm sorry? 

MS. FELTS: No objection to that. 

JUDGE GOODWIN: C-11 will be 

received into evidence as C-11. And, C-12 is 

the sanction requirements, and the same 

comment as yesterday that I'll admit it into 

evidence, but we've also reviewed the 

applicable regulations at the time of each 

violation. But, Complainant's 12 for 

identification is received into evidence. 

(Whereupon, th e documents 

previousl y marke d fo r 

identification as Exhibits C-11, 

and C-12 were received in 

evidence.) 

MR. MORRIS: Nothing further for 

this witness, sir. 

JUDGE GOODWIN: And, 13 was not 

offered, 13 and 14 are not offered. 

MR. MORRIS: Not yet, sir, 

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JUDGE GOODWIN: Okay. Sir, I'm 

going to instruct you not to discuss your 

testimony with anybody prior to the conclusion 

of the hearing. 

You are excused. You may or may 

not be subject to recall, so if you would 

remain outside. 

THE WITNESS: Yes. 

excused. 

(Whereupon, the witness was 

JUDGE GOODWIN: It's quarter to 

3:00, let's take a ten-minute break. 

MR. MORRIS: Sir, could he still 

sit at Counsel's table? 

(Whereupon, at 2:45 p.m., a recess 

until 3:00 p.m.) 

JUDGE GOODWIN: Mr. Morris? 

MR. MORRIS: Yes, sir. 

Next witness is Agent Kenny. 

JUDGE GOODWIN: Sir, stand and 

raise your right hand. 

Please be seated and state your 

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full name, spell your first and last name. 

MR, KENNY: My name is Thomas 

Kenny, T-H-0-M-A-S K-E-N-N-Y, 

JUDGE GOODWIN: Okay, sir. 

WHEREUPON, 

THOMAS L. KENNY, JR. 

was called for examination by Counsel for the 

Agency, and having been first duly sworn, 

testified as follows: 

DIRECT EXAMINATION 

BY MR. MORRIS: 

Q Mr. Kenny, please provide your 

full business address and where you are 

currently employed. 

A Full business address is 1601 Lind 

Avenue, S.W., Suite 530, Renton, Washington 

98057, and I'm employed with the Federal 

Aviation Administration, Hazardous Materials 

Branch. 

Q And, what are your current duties? 

A Current duties is, I'm manager of 

the Security Field Office, Hazardous Materials 

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Q Describe your HAZMAT background 

and experience. 

A HAZMAT background, I was hired 

with the Federal Aviation Administration as a 

Dangerous Goods Special Agent in 1997, March 

of 1997. Spent seven years as a Field Agent 

conducting inspections and investigations. 

Part 14 CFR certificated operators, as well as 

shippers, to repair stations, and freightforwarding companies. 

In 2003, I was selected as the 

Manager for the HAZMAT Materials Field Office, 

and I have been a supervisor for the past 

seven years, supervising those 

responsibilities, and supervising special 

agents for inspections and investigations for 

the states of Oregon, Washington, Montana, 

Idaho and Alaska. 

Q Prior to joining the FAA, do you 

have any industry experience? 

A Yes, I do. 

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Q What is that? 

A I was with Careen Air Cargo, 

Gateway Operations, in Los Angeles, 

California, as a Dangerous Goods Specialist 

and Load Master. 

Prior to that, I was with the 

United Airlines, in their Operations Office in 

San Francisco. 

And, prior to that, I was with 

West Air, which is now part of Sky West 

Airlines. West Air was a regional commuter 

operation, 121/135, that fed the passenger 

operations for United Airlines, Delta, 

American Airlines. 

Q Okay. Do you recall participating 

in an hazardous materials inspection of Empire 

Airlines back on August 22, 2007? 

A Yes, I do. 

Q Where did this occur? 

A In Medford, Oregon. 

Q And, why were you there? 

A I was there for two reasons, one. 

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one of the mandates of my position as a 

supervisor is that I monitor inspection 

operations by field specialists. So, I was 

out there, part of that was monitoring Agent 

Stiger in his inspection. And, the second 

reason was for -- to retain my currency as an 

inspector, supervisory level, it's mandated 

that I conduct inspections as well. 

Q Okay. So, were you present when 

both the first and the second aircraft arrived 

that are a result of the complaint that's 

before the Judge? 

A Yes. 

Q So, you were present when November 

78FTE was being offloaded? 

A Yes. 

Q And, you were present when 

November 940FTE was being offloaded? 

A Yes. 

Q So, you are aware of the 

violations that are the subject of this 

complaint? 

(202) 234-4433 

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A Yes. 

Q Okay. And, based upon these two 

incidents, you are aware that Agent Stiger 

initiated an enforcement investigation report? 

A Yes. 

Q Okay. Now, in your capacity as a 

manager in the hazardous materials in this 

geographic area, do you have responsibility 

for oversight of the programs of the will or 

the will not air carriers? 

Yes, one of the other 

responsibilities of my office is the review 

and recommendation of acceptance to principal 

operations inspectors for the carriers that 

are domiciled in the northwest mountain 

region. 

Q Okay. Is Empire Air one of those 

air carriers that are your responsibility? 

Yes. 

Q And, is Empire Air a will carry 

air carrier? 

Yes 

(202) 234-4433 

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Q What does that -- what's as will 

carry air carrier, what does that mean in our 

parlance? 

It means their operation 

specifications allow for them to carry 

hazardous materials. 

Q Okay. Because they are a will 

carry operator, are they required to have a 

manual concerning their handling, loading and 

transportation of hazardous materials? 

A Yes. 

Q I'd ask you to turn, in front of 

you should be a binder, and I'd ask you to 

turn to Tab C-11, pages C-11-6 through C-11-

44 

Do you recognize this? 

Yes. 

Q What is this? 

A This is the excerpt on the 

hazardous materials contents for Empire 

Airlines for their manual 

Okay. Who in this region would 

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have approved this Empire manual? 

A That would be either myself or 

Branch Manager Sky Landis. 

Q Okay. As part of this manual, 

must Empire set forth procedures for 

acceptance of hazardous material shipments? 

Yes. 

Okay, Now, as part of its 

operation specifications. Empire has 

established a section in its General 

Operations Manual concerning these hazardous 

materials, which is reflected in these 

documents, is that correct? 

A Yes. 

Q Okay. Turning to page C-11-8, 

under the General Provisions, according to its 

own manual who does Empire Air state is 

responsible for compliance with all the 

provisions of the HMR? 

A That Empire Airlines I S 

responsible. 

Q 

(202) 234-4433 

Okay, and is tha t something tha t 

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you, as the manager, that's an expectation 

that the air carrier, the air operator, 

responsible for giving flight, is responsible 

for the acceptance and the transport of the 

hazardous materials on its aircraft? 

A Yes. 

Q Okay. And, do air carriers have a 

responsibility or an obligation, which would 

be memorialized in their manual, concerning 

rejection of HAZMAT shipments that are not in 

compliance with the HMR? 

Yes. 

Q Okay. And, is that reflected in 

the Empire manual at page C-11-12? 

A Yes. 

Q Specifically, that they shall be 

rejected and segregated from other non-cargo 

shipments to prevent accidental introduction 

into the air transportation system? 

A Yes. 

Q So, they just can't turn a blind 

eye to it, they have a separate obligation. 

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each air carrier, air operator, has an 

obligation for the HAZMAT aboard its aircraft. 

A Yes. 

Q Okay. And, under the Empire Air's 

Hazardous Materials Program, who is required 

to supervise the loading of Empire's aircraft? 

A The pilots. 

Q All right, and is that reflected 

at C-11-41, Al and A2? 

A Yes. 

Q Okay. Now, when someone acts as 

an air carrier, they must get permission from 

the Federal Aviation Administration about what 

aircraft they can use in the conduct of their 

operations, correct? 

Q 

That's correct 

And, what aircraft the air 

carrier's operations paragraph, or what 

aircraft operations specifications sets forth 

the aircraft that an air carrier can use to 

conduct its operations. 

A Paragraph D-85. 

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Q Okay. I ask you to turn to C-13 

for identification. 

(Whereupon, the document was 

marked for identification as 

Exhibit No. C-13.) 

BY MR. MORRIS: 

Q Is this the D-85 air carrier 

operations specifications that was in effect 

for Federal Express in 2007? 

A Yes. 

MR. MORRIS: Your Honor, I offer 

C-13 for identification as C-13. 

MS. FELTS: No objection. 

JUDGE GOODWIN: Complainant's 13 

for identification is received into evidence 

as Complainant's 13. 

(Whereupon , th e documen t 

previousl y marke d fo r 

identificatio n a s Exhibi t C-13, 

was receive d i n evidence.) 

BY MR. MORRIS: 

Q I' d nex t as k you t o tur n t o C-14 

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for identification. 

(Whereupon, the document was 

marked for identification as 

Q 

Exhibit No. C-14.) 

BY MR. MORRIS: 

Do you recognize this? 

Yes. 

Q Is this the D-85 Op specs 

concerning the aircraft that Empire Airlines 

could operate back in 2007? 

A Yes. 

Q Okay. 

MR. MORRIS: Your Honor, I offer 

C-14 for identification as C-14. 

MS. FELTS: No objection. 

JUDGE GOODWIN: Complainant's 14 

is received into evidence as Complainant's 14. 

(Whereupon, the document 

previousl y marke d for 

identification as Exhibit C-14, 

was received in evidence.) 

BY MR. MORRIS: 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

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Q Looking at C-13 and C-14, on whose 

air carrier certificate is November 740FTE? 

A That is on Empire Air's operation 

specifications. 

Q And, on whose air carrier 

certificate is November 778FTE? 

A On Empire Air's operation 

specification. 

Q Now, in addition to the Ops specs. 

is there a requirement for an entity operating 

the aircraft to identify who is on the 

aircraft, who is operating the aircraft 

itself? 

Q 

Yes 

And, is that what Federal 

Aviation Regulation requires the entity 

actually operating the aircraft to identify 

itself as such? 

A That's AR 14, or 14 CFR 119.9B, 

bravo 

Q Okay. Now, you mentioned earlier 

that this aircraft, or that the inspector in 

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this case initiated an EIR. Did that EIR go 

through your office? 

Q 

Yes 

Describe the process of review 

once it reaches your office. 

A Once an agent completes an EIR, it 

is submitted to myself for review. I review 

it in accordance with the FA Orders and along 

with the Regulations, to make sure that the 

alleged violation can be substantiated, and 

then from my review it goes to our Hazardous 

Materials Branch Manager. The Branch Manager 

conducts his review, or her review, then it is 

signed off by our division manager, prior to 

going to our Legal Office. 

Q Okay. And, what is the purpose of 

your review 

A The purpose of my review is to 

sustain the alleged violations, that they 

occurred with the Regulations, and also to 

ensure that the recommendation for civil 

penalty is consistent with FAA Orders and DOT 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

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Q In the process, the hazardous 

materials process, there are at least three 

people above Agent Stiger who would review it 

before it goes to the Legal Office for any 

type of action. 

A That is correct. 

Q Did you find that this case was 

appropriate to be sent forward to Legal for 

legal enforcement action? 

A Yes. 

Q What are some of the factors that 

you look at during your review, in regards to 

sanctions? 

A We look at -- well, the Sanction 

Guidelines that are published, we look at the 

culpability of the violator, the corrective 

actions, if any, and what is published for 

public knowledge is what I have to consider. 

Q Okay. And, in your experience, 

how many technical reviews of HAZMAT cases do 

you, generally, conduct a year? 

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A 150 to 200 per year. 

Q Okay. And, in your review of this 

case, is the $20,000 CP proposed in this case 

consistent with the Administrator's guidance? 

Yes 

MR. MORRIS I have nothing 

further, sir. 

JUDGE GOODWIN: Cross? 

CROSS EXAMINATION 

BY MS. FELTS: 

Q Mr, Kenny, I wanted to talk about 

the items that are in Complainant's Exhibit 14 

and 15, the Ops Specs for Empire. 

It was your testimony that these 

represent aircraft that Empire is authorized 

to operate, correct? 

A Correct. 

Q But, it's true, though, that it 

doesn't indicate whether or not Empire 

Airlines owns these aircraft. 

A No. 

Q Okay. So, it might not be 

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completely accurate to describe these as 

Empire's aircraft. 

A It is on their Operating 

Specifications. 

Q Okay. And then, with regard to 

the review you did of the EIR, did you note 

that Empire had no previous civil penalty 

history? 

Q 

Yes. 

And, did you also note the 

corrective action that they provided in their 

letter of response? 

A 

Q 

I don't recall that at the moment 

Okay, Did you -- have you had 

capacity to issue warning letters in your 

office? 

A Yes, we do. 

Q And, why did you not do so here? 

A In this case, the allegations were 

supported by the investigation, and in 

conducting my review of the case I 

substantiated that it did -- it was worthy of 

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a civil penalty action. 

MS. FELTS: Can I have a moment. 

Your Honor? 

JUDGE GOODWIN: Yes. 

MS. FELTS: One moment, please 

JUDGE GOODWIN: Sure 

MS. FELTS: 

further for this witness 

We have nothing 

Thank you. 

MR. MORRIS: Nothing further, sir. 

The Government rests. 

JUDGE GOODWIN: Sir, you are 

excused. You are instructed not to discuss 

your testimony with anybody prior to the 

conclusion of the hearing. 

THE WITNESS: Yes, sir. 

(Whereupon, the witness was 

excused.) 

JUDGE GOODWIN: How many witnesses 

do you have, Ms. Felts? 

MS. FELTS: Two, Your Honor. 

JUDGE GOODWIN: I doubt that we 

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MS. FELTS: It will be pushing it. 

JUDGE GOODWIN: My thought would 

be, being aware that rush hour hasn't started 

yet, Mr. Morris. 

MR. MORRIS: That's irrelevant for 

me, sir 

JUDGE GOODWIN: Okay. Why don't 

we break now and reconvene at 9:00 in the 

morning? 

MS. FELTS: That's fine with me. 

JUDGE GOODWIN: I'm going to ask 

counsel to instruct your various witnesses not 

to discuss this over a beer at the bar, and 

other legalese. 

So, we'll go off the record, we'll 

reconvene at 9:00 and go on until we conclude. 

(Whereupon, the above-entitled 

matter was concluded at 3:14 p.m.) 

(202) 234-4433 

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able 17:4 33:15 

55:18 

aboard 9:15 45:10 

65:15 100:2 

above-entitled 1:19 

109:18 

acceptance 62:17 

62:22 63:14 65:17 

72:1,6 96:13 98:6 

99:4 

accepted 9:20 

accepts 62:15 

accessibility 66:18 

accidental 64:19 

99:18 

accidents 33:19 

accompanied 10:4 

50:5,13 53:14 

accompanying 

10:3 18:6 

accomplish 66:13 

accountable 12:7 

accurate 20:13 

33:11 107:1 

accurately 3 8:13 

40:8 48:14 

acquire 41:17 

acquired 21:7 57:8 

action 12:2 88:22 

89:15 105:6,10 

107:11 108:1 

actions 105:18 

activities 17:22 

19:16 20:6,10,14 

45:19,19 

acts 100:11 

actual 85:22 87:21 

add 76:15 

adding 7:14,17 

addition 50:15 

103:9 

additional 25:6 

28:10 33:13 54:2 

additionally 47:10 

address 5:11 13:13 

13:15 66:22 75:3 

92:13,15 

addresses 5:13 

adjacent 69:10 

administerial 6:5 

Administration 2:2 

2:5 13:21 14:9,13 

35:22 78:8 80:21 

92:18 93:5 100:13 

administrative 

1:22 88:20,21 

89:15 

Administrator's 

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75:20 76:6,9 77:5 

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admit 90:8 

admitted 47:11,15 

56:14 

aft31:ll,13 

agency 10:12 13:8 

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70:21 92:8 

agent 3:12 8:4,4 

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91:19 93:6,7 95:4 

96:3 104:6 105:4 

agents45:19 65:6 

65:10 93:17 

ago 83:2 

ahead 11:8 

air3:21 8:9,19 9:12 

10:3,10,16,17 

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16:11,15 17:15 

26:9 43:2 45:10 

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49:18 50:3,16 

51:4 53:7 55:5,8 

55:17,19 67:1,2 

68:22 74:2,4,11 

75:7,9 80:15,17 

86:6,9,11,11,13 

87:6,10,12,17 

94:2,10,11 96:10 

96:17,18,20,21 

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99:7,19 100:1,1 

100:12,17,20 

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aircraft 3:13,15 

8:19,20 9:3,6 

10:20 19:12 22:2 

22:6,10 23:1,2,7,8 

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100:17,19,20 

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103:12,17,22 

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aircrafts 8:12 

aircraft's 31:11 

Airline 28:6 

airlines 1:10 4:5,19 

9:22 11:3,11 

17:11 19:724:22 

29:20 30:1,12 

59:16 60:6,8 61:6 

62:14 66:20 67:7 

67:10,15,15 69:14 

77:17,19 78:19,20 

79:18,22 81:19 

89:3,9 94:7,11,13 

94:14,17 97:21 

98:20 102:9 

106:20 

Airport 22:17 29:6 

airworthy 31:9 

Air's 26:19 52:19 

68:16 100:4 103:3 

103:7 

Alaska 93:19 

alcohol 34:12 58:2 

Alderwood 13:16 

alert 23:3 41:18,22 

79:9 

allegation 9:6 

allegations 107:19 

aUeged 104:10,19 

allow 75:21 97:5 

amend 6:6,15 

amending 7:3 

American 94:14 

Ameriflight 79:20 

79:22 80:7,14,19 

amount 6:16 72:12 

analysis 73:9 

and/or 86:19 

Angeles 94:3 

answering 78:16 

ante 73:19 

anybody 91:3 

108:14 

APPEARANCES 

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Appendix 66:9 

applicable 90:10 

applied 73:7 

appropriate 8:11 

105:9 

appropriately 53:6 

approved 98:1 

approximately 

15:17 77:15 

AR 103:19 

area 16:7,10,14 

17:3,6,16,18 

18:18 80:14 96:8 

Army 14:4 

arrival 41:16 

arrive 26:10 41:10 

47:19 

arrived 9:12 37:12 

47:22 50:20 95:10 

asked 19:8 21:18 

Pag e 110 

27:7 53:16 

asking 78:15,18 

aspect 80:19 

Associated 71:20 

assume 76:11 78:1 

attached 52:1 

attention 9:18 

54:22 62:8 

Attorney 2:10 

August 8:3 17:11 

20:6 38:14 41:6 

41:1148:15 94:17 

authorized 49:18 

49:20,21 50:16 

86:9 106:15 

auto 24:21 36:11 

80:11 81:5 

available 34:6 

80:22 

Avenue 1:17 2:5 

4:13 92:16 

average 24:6 

aviation 2:2,5 4:5 

13:20,22 14:2,8 

67:20 69:15 78:7 

92:18 93:5 100:13 

103:16 

AVX 80:17 

aware 30:10 31:5 

95:20 96:3 109:4 

A-1 66:7 

A-2 66:8 

Al 100:9 

A2 100:9 

B 

B2:12 4:21 25:3 

27:15 39:16 40:10 

63:9 71:10,12,17 

71:18 86:7 

back 31:21 56:1 

61:6 88:19 89:8 

94:17 102:10 

background 14:1,2 

14:6,7 93:2,4 

backing 55:12 

bad 34:10 

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based 33:17 76:3 

86:20 88:18 89:7 

96:2 

basically 8:19 9:5 

23:4 24:18 36:6 

61:1179:15 

basis 29:17,18 

beer 109:14 

beginning 37:22 

62:22 

Behalf2:2,9 

belief70:21 

believe 33:21 58:6 

best 70:20 

Bierlein 2:16 5:1 

big 32:22 

binder 97:13 

bit 69:6 82:20 

85:21 

black 5:17 

blind 99:21 

blocks 39:22 40:4,5 

board 23:17 33:12 

33:13 34:5 41:21 

42:20 44:7 50:11 

53:20 54:13 85:3 

body 38:8 

bottles 83:15 

bottom 25:9 

box 54:13 83:10 

Branch 92:19 98:3 

104:12,12 

bravo 103:20 

break 91:12 109:9 

brief 7:1 8:2 

briefly 11:7 

broad 15:15 

brought 9:18 51:9 

52:1 

Building 2:12 4:21 

bulk23:17 36:14 

business5:ll 13:13 

13:15 17:2120:10 

85:12 92:13,15 

B-10 64:2 

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C 1:22 9:3 19:18 

21:1025:3 27:15 

28:20 29:8 31:22 

32:21 38:16,20 

39:9,17 40:10 

69:19 71:12 74:1 

81:11 82:2 86:5 

87:15 

California 94:4 

call 12:16,18 46:5 

80:8 

called9:2 13:7 75:2 

92:7 

calling 64:6 

cap 55:10,12 

capacity 89:11,12 

96:6 107:15 

caps 55:1,3 

caravan 22:21 

Careen 94:2 

career 77:16 

cargo 11:12,14 

24:7 27:10 51:6,7 

64:18 80:15 94:2 

carried 85:17 

carrier 3:21 11:12 

14:14 67:2,12 

74:3,4,12 75:7,9 

80:13 96:2197:2 

99:2 100:1,12,20 

101:7 103:2,5 

carriers 14:12 

15:21 17:15 36:2 

78:9 79:16 81:2 

96:10,14,18 99:7 

carrier's 100:18 

carry 35:7 96:20 

97:2,5,8 

carrying 44:4 

67:11 

carts 51:22,22 

case 1:11 4:4 6:13 

6:218:3 9:16 

10:5,7 11:1,18 

12:4 16:22 18:16 

23:14 24:2,20 

36:7,1141:19 

51:15 52:14 53:10 

54:15 56:2 58:11 

58:19 71:3,22 

72:16,22 73:13 

74:16 75:15 76:5 

76:20 77:21 79:13 

86:22 87:2,12 

88:18,22 89:7 

104:1 105:8 106:3 

106:3 107:19,21 

cases 5:6 78:1 

105:21 

categoried 86:7 

category 71:8,10 

71:12,12,17,18 

86:3,5,7 87:15,15 

87:16,19 

cause 72:14 

center 31:18 63:5,6 

certificate 103:2,6 

certificated 31:2 

93:9 

certification 49:22 

Cessna 25:9 27:11 

32:18 38:21 39:19 

CFR 17:4 55:9 

58:10 68:4 69:12 

86:17 87:1,8 93:9 

103:19 

change 36:8 40:7 

changed 29:7,7 

32:1,13 36:14,18 

81:10 

charges 12:1,3 

checked 66:19 

circumstances 12:3 

76:4 

cite 68:2 

City 15:8 

civil4:6 12:2 76:7 

104:21 107:7 

108:1 

Class 8:15 56:3 

71:16 

classed 86:10 

clas«e« 23" 16 

71:13 86:21 

classified 55:22 

58:3 86:5 

classify 57:15 

clear 39:20 47:12 

63:17 78:13 

code 58:4 

coffee 18:20 

combination 35:17 

come 51:6 

coming 15:4 47:1 

82:5 

command 65:18 

comment 90:8 

commerce 16:11 

16:16 55:5 72:15 

commodity 49:17 

50:3 55:8 58:21 

71:15 86:11,15,18 

common 66:22 

67:9 

commonly 23:18 

39:18 

communicated 

36:8 

commuter 94:11 

companies 85:13 

93:11 

compare 19:10 

compatibility 

66:17 

Complainants 

56:12 

Complainant's 

20:22 37:3,5 

40:19,21 43:8,10 

44:13,15 46:13,15 

56:14 59:6,8 

60:13,15 70:1,3 

90:11 101:14,16 

102:16,17 106:12 

complaint 6:6 7:3,9 

8:9 95:11,22 

complete 33:11 

completed 65:19 

completely 107:1 

completes 104:6 

compliance 62:13 

64:22 98:18 99:11 

compliant 64:10 

component 73:2 

concern 34:4 36:6 

concerned 5:7 12:6 

12:10 

concerning 9:6 

10:7,22 21:7 

48:15 97:9 98:11 

99:9 102:9 

concerns 8:3 21:20 

conclude 109:17 

concluded 109:19 

conclusion 91:3 

108:15 

conduct 15:10 

19:16 20:1195:8 

100:14,21 105:22 

conducted 15:18 

20:15 

conducting 8:5 

17:10 65:6 93:8 

107:21 

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consider 76:13 

77:4 105:19 

consistent 11:1 

29:11 58:9 104:22 

106:4 

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consumer 49:17 

50:3 55:7 58:21 

71:15 86:11,15,18 

contact 80:4 

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54:5 

containers 10:7 

contents 3:1,15 

Neal R. Gross & Co. 

202-234-4433 

Inc, 
Page 112 

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context 11:19 

contract 65:14 85:1 

control 36:15 81:10 

copy 42:1 61:20 

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21:21 22:5,8,15 

24:9 25:16 34:11 

34:17 36:10 40:2 

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52:17,22 63:16 

67:13,18 69:18 

71:19 72:3,4,8,9 

73:3,20,21 74:7,8 

74:17 75:4,5,16 

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corrective 61:15 

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correctly 85:17 

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corrosives 8:16 

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13:7 18:19 88:15 

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couple 5:4 

course 17:21 19:14 

20:10 30:17 45:18 

77:16 78:6,11 

Court 1:15 5:7 

Courtney 2:10 4:20 

covered 77:22 

co-counsel 4:22 

CP 106:3 

CP09NM00091:10 

crash 34:19 

crashing 34:21 

crew 66:13,15 

crews 35:6 

criteria 88:20 

Cross2:12 3:2 4:21 

77:10,11 106:8,9 

culpability 105:17 

currency 95:6 

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92:20,21 

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16:4 38:7 92:14 

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20:18,18,20,21 

21:3 45:10 

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C-11-12 64:12 

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C-11-41 66:7 100:9 

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C-11-6 62:2 97:14 

C-11-8 62:9 98:15 

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69:20,21 70:6 

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28:16 

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28:13 36:22 37:1 

37:8 

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C-4 3:14 37:14,19 

40:17,17 41:2 

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42:13 43:6,6,13 

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56:9,10,17 

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C2A 22:21 

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40:10 49:18 86:5 

damage 72:15 

danger 31:15 

dangerous 3:12 

9:1521:1623:3 

28:10 41:17,20,21 

66:20 93:6 94:4 

data 3:17 57:7 

58:16 

date23:5 28:14 

42:14 

day 12:5 

DC-10 51:6 

Dead 63:5,6 

deal 32:22 

dealing 31:22 

deck23:19 24:3 

25:2,14,15 27:14 

32:17 39:19 40:13 

52:4 

definitely 15:21 

definition 86:18 

degrees 58:9,12 

Delta 94:13 

demonstrate 35:11 

38:17 47:4 

Department 1:1 

13:20 57:16 

departure 32:2 

81:11 

depends 85:8 

depict 48:14 

describe 13:22 14:5 

93:2 104:4 107:1 

described 23:18 

designated 55:7 

designator 22:19 

destination 28:15 

42:15 

determination 

88:15,21 89:6 

determine 8:11 

25:6 51:14 54:17 

determined 29:7 

determining 31:8 

58:10 

deviation 75:21 

88:6,7 

device 51:12 

devices 51:8,8 

DG3:15,23 9:15 

24:2136:1142:20 

66:10,12,16 79:9 

79:9 80:11 81:5 

DHL 80:18 

dictate 81:1 

difference 44:2 

different 8:8 15:22 

23:16 33:1 34:1 

34:12,14 36:2,3 

59:15 79:16 81:2 

81:2 85:13,14 

differentiation 

86:6 87:17 

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dire 16:18 

direct 3:2 13:10 

62:8 77:14 81:9 

83:1 88:2 92:10 

directing 85:15 

disclosed 10:18 

discovered 8:22 

10:9 

discrepancy 32:9 

discretion 76:7 

discuss 91:2 108:13 

109:14 

discussed 5:5 88:1 

disposed 64:22 

distances 66:17 

District 1:15 

diversion 84:3 

diverted 82:15 

division 104:14 

DMS 1:12 

docket 1:9 4:5 5:22 

document 19:20 

20:2,5 21:1,12,15 

22:13 23:9,11,15 

24:10 25:2126:5 

27:20 28:4,5,19 

37:6,17 40:22 

42:2,643:11,18 

44:1,1645:1,13 

45:22 46:16 47:15 

48:6 50:2,10 

56:15,22 57:6,11 

57:13 59:9,20 

60:2,4,16,22 61:4 

68:7 70:4,11 86:2 

101:3,17 102:2,18 

documentations 

50:9 

documents 3:16 

9:14 21:7 35:9 

45:5,6 53:16 

90:13 98:13 

domiciled 96:15 

Donald 3:3 13:4,6 

door 69:6,10 

DOT 35:21 104:22 

doubt 108:22 

downward 75:21 

88:7 

down-line 19:11 

27:5 32:15 36:19 

80:6,11 

duck 69:16,17,17 

duly 13:8 92:8 

duties 14:13 15:9 

16:3 30:7 92:20 

92:21 

D-O-N-A-L-D 13:4 

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101:7 102:8 

Neal R. Gross & Co. 

202-234-4433 

Inc 
Page 113 

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£2:10 63:7,14 

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eight 81:21 

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107:6 

either 5:21 50:5 

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emergency 33:4,10 

33:15 34:7 82:16 

84:3 

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8:9 9:12,22 10:16 

10:17 11:3,11,18 

12:6 17:10 19:7 

24:22 26:9,12,18 

28:6 29:19 30:1,6 

30:12 36:4 41:10 

43:2 45:10 46:5 

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60:6,8 61:6,10 

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78:19,20 79:13,17 

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104:21 

entails 30:2 86:3 

entire 47:15 

entity 67:4 103:10 

103:16 

enumerated 12:1 

envelope 31:14,18 

equipment 22:22 

42:16 

Esq 2:4,10,16,22 

essentially 43:22 

established 98:10 

ethanol 56:3,3 

ethyl 58:1 

ETMIS 58:4 

event 82:16 84:3 

evidence 3:10 

20:2121:4 26:2 

37:4,9 40:20 41:3 

43:9,14 44:14,19 

46:14,19 56:18 

59:7,12 60:14,19 

70:2,7 90:6,9,12 

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21:14 24:15 26:1 

27:22 28:13 31:21 

32:7,8 37:8,19 

41:2 42:8 43:13 

43:20 44:18 45:3 

46:18 48:8 50:22 

56:17 57:2 59:11 

59:22 60:18 61:1 

68:9 70:6,13 74:1 

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experience 14:1,6 

15:16 78:8 81:4 

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17:6 

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eye 99:22 

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facility 9:10 51:10 

fact 11:3 26:15 

31:16 33:8 34:9 

73:18 

factor 31:8 

factors 61:16 71:5 

105:12 

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fair 20:13 40:1 

fairly 38:13 40:8 

48:14 

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familiar 24:7 86:2 

far 10:13 22:13 

23:12 30:1131:11 

31:13,13 

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4:5 12:4 13:20 

14:8,12,14 21:18 

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54:16 67:20 78:7 

80:10 92:17 93:5 

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81:16 83:2 85:5 

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29:9 36:14 46:6 

51:21 68:19 79:21 

80:17 

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11:9 12:15 16:17 

16:19 17:1 18:12 

20:19 25:20 29:16 

29:18,22 37:2 

40:18 43:7 44:12 

46:12 56:1159:5 

60-12 69-22 77-12 

77:20 78:3,12 

89:4,18 90:1,4 

101:13 102:15 

106:10 108:2,5,7 

108:20,21 109:2 

109:11 

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field 92:22 93:1,7 

93:13 95:3 

fight 34:14 

figure 78:5 

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109:11 

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firefighting 58:8 

first 8:14 9:6 12:16 

13:1,8 28:14 34:8 

34:19,22 69:4 

74:19 86:16 92:1 

92:8 95:10 

five 14:3 33:22 37:1 

38:5 39:21 58:7 

75:1181:22 82:1 

fixed 39:22 

flammability 58:5 

flammable 34:13 

56:3 58:6,13 

71:16 86:22 

flash 58:8,11 

flew 45:14 47:5 

flight3:13 8:14 9:8 

9:11,12 21:20,22 

22:3,14 23:4,5,6 

23:13 26:10,13 

28:14 31:14,19 

33-5 37-12 41-6 

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82:17,21,22 83:1 

84:4 99:3 

Neal R. Gross & Co. , 

202-234-4433 

Inc, 
Page 114 

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flights 8:8 19:7,9 

21:8 

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37:15 38:4,12 

48:10,13 56:13 

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full 13:1,3,13,15 

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7:17,21 11:4,8 

12:12,16,20 16:17 

16:21 17:5 18:10 

18:14 19:1 20:20 

26:5 29:17,21 

30:3 37:3 40:19 

43:8 44:13 46:13 

47:13 56:12 59:6 

60:13 70:177:10 

77:20 88:16 89:19 

90:3,5,20 91:1,11 

91:17,20 92:4 

10114 10216 

106:8 108:4,6,12 

108:19,22 109:3,8 

109:12 

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108:11 

grabbing 35:2 

gravity 31:18 

ground 14:17 

58:20 78:8 

group 58:11,13 

74:2,4,11 75:7,9 

guess 62:21 

guidance 3:21 11:2 

70:16,22 71:2,7 

74:10 75:2176:9 

77:6 85:20,20 

87:15 88:8 106:4 

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hand 12:21 34:18 

57:9 83:3 91:21 

handle 17:2 

handled 66:11 

handling 65:11,13 

97:9 

happens 31:10 

32:11 

hazard 57:22 58:3 

hazardous 8:15,17 

8:22 9:7,9,14 14:6 

14:7,9,16 15:1,2 

15:11,18 16:5,10 

16:15 21:1722:13 

23:13,16 24:12 

25:7 27:2 28:10 

29:12 30:8 34:9 

35:2136:9 44:7 

49:19 50:10 53:4 

53:20 54:18 57:14 

57:17 58:161:20 

63:19 64:16 65:1 

65:16 74:20 80:1 

83:9,11 85:3 89:2 

92:18,22 94:16 

96:7 97:6,10,20 

98:6,1199:5 

100:5 104:11 

105:2 

HAZMAT 25:12 

33:162:4 64:9,13 

65:22 66:2,4 

67:10 93:2,4,13 

99:10 100:2 

105:21 

head 38:7 

headquartered 

11:13 

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11:10,16,18 12:8 

29:21 

heard 11:5 

hearing 1:5,19 91:4 

108:15 

HEARINGS 1:3 

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helicopter 14:3 

help 57:13,15 

highlight 84:20 

Highway 14:12 

hired 14:8 93:4 

history 73:12,15,20 

88:3 107:8 

HMR 62:13 98:19 

99:11 

HM-206-C 33:8,17 

80:20 

Honor 4:18 6:11 

11:9 12:15 16:13 

16:19 18:8,12 

20:17 25:18 29:16 

36:2140:16 43:5 

44:10 46:9 47:8 

56:8 59:3 60:10 

69:19 77:9 78:3 

88:14 101:11 

102:13 108:3,21 

HONORABLE 

1:22 

hour 109:4 

House 57:9 

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identiflcation3:10 

19:19,21 20:18,21 

21:3,11,13 25:19 

26:1,6 27:21 

36:22 37:4,8,15 

37:18 40:17,20 

41:2 42:5,7 43:6,9 

43:13,17,19 44:11 

44:14,18,22 45:2 

46:10,14,18 47:9 

48:5,7 53:4 56:6,9 

56:13,17,21 57:1 

58:3 59:4,7,11,21 

60:11,14,18 61:1 

68:6,8 69:20 70:2 

70:6,10,12 89:22 

90:12,15 101:2,4 

101:12,15,19 

102:1,3,14,20 

identified 8:15 9:17 

39:15 47:149:10 

57:22,22 74:21 

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202-234-443 3 

Inc . 
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Nea l R. Gross & Co . 

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I n c 
r^ 123 

CERTIFICAT E 

This is to certify that the foregoing transcript 

In the matter of: Empire Airlines, Inc. 

Before: US Department of Transportation 

Date: 10-26-10 

Place: Portland, Oregon 

was duly recorded and accurately transcribed under 

my direction; further, that said transcript is a 

true and accurate record of the proceedings. 

Court Reporter 

(202) 234-4433 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C, 20005-3701 www.nealrgross.com