UNITED STATES DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. RECEIVED 

In the Matter of: 

William A. Luker, Jr. 

CP09SW008 JAN - 5 20» 

'^'^""'•"""^^"i^ARING DOCKET 

FDMS No. 2009-1044 

cr^ 

ADMINISTRATIVE LAW JUDGE NOT ASSIGNED ' 

COMPLAINANT'S MOTION FOR SUMMARY JUDGMENT S 

The Federal Aviation Administration (hereinafter "FAA" or "Complainant"), throu ^ 

the Agency Attorney from the Regional Counsel's office for the Southwest Region, files this 

Motion for Decision pursuant to the Rules of Practice in FAA Civil Penalty Actions, 14 C.F.R. 

§ 13.218(f)(5). As support for this motion, Complainant submits that as a result of the 

Respondent's admissions and the documentary evidence submitted with this motion, there 

remains no genuine issue of a material fact that requires a hearing, and Complainant is entitled 

to a Motion for Summary Judgment as a matter of law. 

In support of its motion. Complainant would show the Court as follows: 

FAA's Complaint 

1. On November 5, 2009, the FAA filed a complaint in which it alleged that on or about 

April 19, 2009, at Dallas/Fort Worth Intemational Airport (DFW), TX, Respondent William 

Luker, Jr., an individual, knowingly offered American Airlines, Inc. ("American Airlines") 

checked baggage that contained undeclared hazardous materials for transportation by air in 

commerce on American Airlines flight no. 2404 from DFW to Baltimore MD, and that during 

the screening process of Respondent's checked baggage, the Transportation Security 

Administration (TSA) found one (1) 16.4-oz. canister of Coleman propane fuel marked 

Extremely Flammable; one (1) canister of Butane fuel; and one (1) torch lighter. The FAA also 

alleged that Respondent failed to mark the shipment with all applicable identification markings 

and labels that would indicate the presence of the hazardous materials inside; that the shipment 
was not accompanied by a Shipper's Certification or Declaration of Dangerous Goods; that the 

shipment was not accompanied by shipping papers that described the hazardous material and 

provided emergency response information, including a 24-hour emergency response telephone 

number; and that some of the hazardous materials were forbidden from being offered for 

transportation aboard passenger-carrying aircraft. 

2. The FAA also alleged that these actions violated the Department of Transportation 

Hazardous Materials Regulations ("HMR") [Title 49 Code of Federal Regulations (C.F.R.) 

171.1 etseq.], specifically, 49 C.F.R. § 171.2(e). 

3. The FAA also alleged that under 49 U.S.C. § 5123(a), Respondent William A. Luker, Jr. 

was liable for a civil penalty of not less than $250 [$450 for training violations], nor greater 

than $50,000 [$100,000 if death, serious illness, severe injury, or substantial property damage 

results] for each violation of the Federal hazardous materials transportation law [49 U.S.C. § 

5101 et seq.], and for each violation of the Department of Transportation Hazardous Materials 

Regulations [49 C.F.R. §§171.1 etseq.]. 

4. The FAA also alleged that under the facts and circumstances of this case, a civil penalty 

of $500.00 is appropriate and reasonable. 

Respondent's Answer 

Respondent failed to file an Answer to the FAA's Complaint. The FAA served 

Respondent with a copy of the Complaint via certified mail, return receipt requested, on 

November 5, 2009. See Certificate of Service attached to FAA's Complaint; see also postmark 

on unclaimed envelope, attached as Exhibit 1 at 1. Respondent was notified by the U.S. Postal 

Service on November 9, 14, and 24, 2009, that he had certified mail. Id. However, Respondent 

refused to claim the Complaint and it was returned to Complainant on November 30, 2009. Id. 

' A respondent's written answer to the complaint is due not later than 30 days after 

service of the complaint. 14 C.F.R. § 13.209(a). The date of service is the date shown on the 

certificate of service, which in this case is the same as the date shown on the postmark, 

November 5, 2009. 14 C.F.R. § 13.211(d). Because Respondent's answer was due within a 

prescribed period after service by mail, 5 days are added to the postmark/certificate of service 

date as additional time added to the prescribed period after service by mail. 14 C.F.R. § 

A properly addressed document sent by certified mail that is not claimed is deemed to have been served in accordance with 

the FAA Rules of Practice in Civil Penalty Cases. 14 C.F.R. § 13.211(g). 
13.211(e). Accordingly, Respondent's answer was due no later than December 10, 2009. 

Respondent failed to file a written response by that date. Because Respondent failed to file an 

answer without good cause, he is deemed to have admitted the truth of each allegation 

contained in the FAA's Complaint. 14 C.F.R. § 13.209(f). Accordingly, the violations in this 

matter are deemed proved by Respondent's failure to file an answer to the FAA's complaint. 

The sole issue remaining is whether the sanction imposed by the agency's complaint is 

reasonable and appropriate under the totality of the circumstances and is also in accordance 

with precedent. This issue is addressed below. 

Argument 

Even assuming, arguendo, that the Administrative Law Judge granted additional time 

for Respondent to answer, he has already admitted to the facts that gave rise to the violation, 

and the sanction is appropriate and reasonable and in accordance with precedent, as shown 

below: 

/. Respondent knowingly offered undeclared hazardous materials for transportation by air in 

commerce, thus incurring liability under the Federal hazardous material transportation law 

and the HMR 

To establish z, prima facie case under the Federal hazardous material transportation law, 

the Complainant must show that the Respondent knowingly offered undeclared hazardous 

materials for transportation by air in commerce in violation of the Federal hazardous materials 

law and/or the HMR. "Undeclared" means that the shipment contained none of the safeguards 

that the HMR mandates for the shipment by air of inherently dangerous goods. These 

safeguards include specifications for labeling and packaging and emergency response 

information. Complainant has established the required elements, as shown below. 

When Respondent checked his baggage for American Airlines flight no. 2404 from 

DFW to BWI, it was assigned Bag Tag BWI/64-01-98. Exhibit 2. An airline passenger offers 

hazardous materials in checked baggage to an air carrier for air transportation in commerce at 

the point the passenger presents the baggage for acceptance by the carrier. See Hazard 

Materials: Formal Interpretation of Regulations, 68 FR 9736 (February 28, 2003). This offer 

can occur at curbside check-in, at the ticket counter in the airport, or when the passenger 
presents the bag to screening persormel for explosive detection screening as a prerequisite to 

presentation to the carrier. Id. Accordingly, if a passenger's checked baggage contains 

hazardous materials that do not comply with Federal hazardous materials transportation law or 

the HMR, and the passenger has offered it to the air carrier, the passenger may be subject to 

civil or criminal penalties under Federal hazardous materials transportation law or the HMR. 

Id. The undeclared hazardous materials were discovered by Transportation Security 

Administration ("TSA") personnel when they screened Respondent's checked baggage. TSA 

reported the discovery of the hazardous materials to American Airlines, which created an 

Undeclared Dangerous Goods Discrepancy Report that was sent to the FAA. Exhibit 2. 

Respondent therefore offered his checked baggage to the airline for transportation by air in 

commerce. 

Respondent is liable for the civil penalty proposed by Complainant under the HMR if he 

"knowingly" offered his checked baggage that contained undeclared hazardous materials to 

American Airlines. Knowledge is an element of the violation of the hazardous materials statute 

and regulations. Both provide that a person who knowingly commits a violation is liable for a 

civil penalty. 49 U.S.C. § 5123(a)(1); 49 C.F.R. § 171.1(c). Knowledge may be either actual 

or constructive.^ As for the type of knowledge that is required, the statute provides that the 

alleged violator must have known the "facts giving rise to the violation." 49 U.S.C. § 

5123(a)(1)(A). Knowledge of the law itself is not necessary, and persons can be liable even if 

they do not know they are breaking the law. In the Matter of: Riverdale Mills Corporation, 

FAA Order No. 2003-10 at 5 (September 12, 2003). Congress intended to prevent individuals 

from relying on ignorance of the law as an excuse in civil hazardous materials cases.^ 

In the Smalling case, FAA Order No. 1994-31 at 7 n. 9 (October 5, 1994), the 

Administrator rejected Smalling's argument that he did not violate the HMR "knowingly" 

^ The statute provides: 

A person acts knowingly when -

(A) the person has actual knowledge of the facts giving rise to the violation; or 

(B) a reasonable person acting in the circumstances and exercising reasonable care 

would have that knowledge. 49 U.S.C. § 5123(a)(1). 

^ The legislative history of the Hazardous Material Transportation Act confirms that Congress intended to impose 

civil penalties on persons who knew about the act constituting the violation but did not know about the law. The 

conference substitute explains that "a civil penalty may be imposed only upon proof that the defendant knowingly 

committed the act which constitutes the violation (it is not necessary to show that he knew the act constituted a 

violation) ... (emphasis supplied)." S. Conf Rep. No. 1347, 93"* Cong., 2"'^ Sess., reprinted in 1974 U.S. Code 

Cong. & Ad. News 7669, 7686; see also TC/Corporation, FAA Order No. 92-77 at 8-9 n. 13 (December 22, 1992). 
because he did not know that the firecrackers in his checked baggage were hazardous materials. 

Smalling "readily admitted that he had actual knowledge of the facts giving rise to the 

violation; i.e., that he placed fireworks in his suitcase, and that he checked the bag with the 

airline." Id. ' 

As in Smalling, the Respondent admitted that he had actual knowledge of the facts 

giving rise to the violation - that he placed the hazardous materials in his baggage and checked 

that baggage with American Airlines. In an email to the FAA Special Agent dated May 15, 

2009, the Respondent admitted: "Because of the nature of the trip, I brought two backpacking 

stoves and two backpacking lanterns, as well as backpacking tents and backpacks. In my haste 

to catch the plane, I threw the propane and butane cylinders in my duffle bag, completely 

forgetting at the moment that they were substances that could not be transported on a plane. 

After I was in the security line, one of the baggage inspectors approached me and pointed out 

that he had found those items in my duffle, and would have to confiscate them, unless there 

was someone at the airport who could take them back to my home. I said no, apologized for 

the MISTAKE, made in HASTE, and went on about my business." Exhibit 3. 

Because Respondent admitted that he had actual knowledge of the facts giving rise to 

the violation, he committed a knowing violation when he offered those hazardous materials to 

American Airlines. Additionally, even though it is not necessary to show that the Respondent 

knew those acts constituted a violation, it is clear the Respondent did have that knowledge, as 

he admitted he knew that they were substances that could not be transported on a plane. Id. 

The Respondent admitted in his letter of response that the items in his checked baggage 

included a propane cylinder and a butane cylinder. Id. The American Airlines Discrepancy 

Report also lists butane fuel, propane fuel, and one torch lighter on its discrepancy report as 

items of undeclared dangerous goods confiscated. Exhibit 2. The Propane Fuel cylinder bears 

the warning, "DANGER Extremely Flammable, Fire Explosion Hazard, Contents Under 

Pressure." Exhibit 4. It is reasonable to believe that Respondent actually knew, from the 

warnings on the label, that the propane cylinder was hazardous. Moreover, the Respondent 

admits that he knew that they were "substances that could not be transported on a plane." 

Exhibit 3. 

The Material Safety Data Sheet ("MSDS") for The Coleman Co. 16.4-oz Propane 

Cylinder also shows that the propane fuel is a hazardous material. Exhibit 5. Section 2 of the 
MSDS lists the Hazardous Components Information. Id. at 1. The product contains Propane -

odorized, in the chemical family of Liquefied Petroleum Gas. Id. Hazardous components 

include propane, CAS Number 74-98-6, in the amount of 85-100%. Id. Propane is classified as 

a hazardous material under the HMR. [49 C.F.R. § 171.1 etseq.]. The proper shipping name is 

Propane or Petroleum gases, liquefied. It is in Hazard Class 2.1 (flammable gas, flash point 

is listed in the MSDS as minus 156° F, Exhibit 5 at 3) at and has an assigned identification 

number of UN 1978. The proper label is flammable gas. Propane is forbidden from 

transportation aboard passenger-carrying aircraft and the packaging required a CARGO 

AIRCRAFT ONLY label. See Hazardous Materials Table, 49 C.F.R. § 172.101, under 

"Propane." 

Likewise, the Butane fiiel cylinder is also a hazardous material. The Material Safety Data 

Sheet ("MSDS") for the butane fuel, also a liquefied petroleum gas as is the propane, shows 

that the propane fiiel is a hazardous material. Exhibit 6. Section 2 of the MSDS lists the 

Components. Id. at 1. Hazardous components are Isobutane (78-83% by volume) and n-butane 

(18-22% by volume). Id. at 1. Butane is classified as a hazardous material under the HMR. [49 

C.F.R. § 171.1 et seq.]. The proper shipping name is Butane or Petroleum gases, liquefled. It 

is in Hazard Class 2.1 (flammable gas, flash point is listed in the MSDS as Less than 

minus 117° F, Exhibit 6 at 2) and has an assigned identification number of UN 1011. The 

proper label is flammable gas. Butane is forbidden from transportation aboard passengercarrying aircraft and the packaging required a CARGO AIRCRAFT ONLY label. See 

Hazardous Materials Table, 49 C.F.R. § 172.101, under "Butane." 

The Respondent's checked baggage also contained one torch lighter that used the propane 

fuel and/or butane fuel. Lighters containing flammable gas are classified as a hazardous 

material under the Department of Transportation Hazardous Materials Regulations (HMR) [49 

C.F.R. § 171.1 et seq.]. The proper shipping name is Lighters. This material is in Hazard 

Class 2.1 (flammable gas) and has an assigned identification number of UN 1057. The proper 

label is flammable gas. See Hazardous Materials Table, 49 C.F.R. § 172.101, under "Lighters 

containing flammable gas." The MSDS for the butane lighter also shows that it is a hazardous 

material. Exhibit 7 at 1 and 3. 

All three of the materials described above that were contained in the Respondent's 

checked baggage were "hazardous material" by operation of the HMR as follows: 
[A] substance or material that the Secretary of Transportation has determined is capable of 

posing an unreasonable risk to health, safety, and property when transported in commerce, 

and has designated as hazardous under section 5103 of Federal hazardous materials 

transportation law [49 U.S.C. 5103]. The term includes hazardous substances, hazardous 

wastes, marine pollutants, elevated temperature materials, materials designated as 

hazardous in the Hazardous Materials Table 49 C.F.R. § 172.101, and materials that meet 

the defining criteria for hazard classes and divisions in part 173 of subchapter C of this 

chapter. 49 C.F.R. § 171.8. 

Because Respondent offered hazardous materials to the air carrier on which he was a 

ticketed passenger, he offered the undeclared hazardous materials for air transportation in 

commerce. The American Airlines discrepancy report lists William Luker, 11907 Winterthur 

Ln APT PH3, Reston, VA 20191-1937 as the passenger from whom the hazardous materials 

were confiscated after the Respondent offered his checked baggage to that air carrier. Exhibit 

2. 

When he offered his checked baggage to American Airlines, Respondent failed to identify 

the contents as hazardous materials. Respondent admits that he "threw the propane and butane 

cylinders" in his "duffle bag" and "completely forgetting at that moment that they were 

substances that could not be transported on a plane." Exhibit 3. The items were not identified 

by Respondent, but were discovered by TSA during its screening procedures of the 

Respondent's checked baggage after Respondent offered it to American Airlines. American 

Airlines filed a discrepancy report because the hazardous materials were discovered by TSA 

after Respondent offered his checked baggage to American Airlines. Therefore, Respondent 

knowingly offered undeclared hazardous materials for transportation by air in commerce, thus 

incurring liability under the HMR. Respondent has admitted the facts that gave rise to the 

violation. Complainant requests the Administrative Law Judge to grant summary judgment for 

the FAA on the issue of liability and find that Respondent violated 49 C.F.R. § 171.2(e). 

2. The proposed civil penalty is reasonable and appropriate under the totality of the 

circumstances and is in accordance with precedent 

By his conduct, the Respondent violated Federal hazardous materials law and the 

HMR. Because the Respondent offered an undeclared shipment, he violated hazardous 

materials regulations pertaining to shipping papers, labeling, marking, packaging, and 

emergency response, as summarized in § 171.2(e). As hidden shipments, they constitute a 
safety threat whose magnitude is unknown. The FAA considers them particularly worrisome. 

Undeclared shipments of hazardous materials "pose a special risk" See Envirosolve, Inc., FAA 

Order No. 2006-2 at 14 (February 7, 2006); Toyota Motor Sales, USA, Inc., FAA Order No. 94-

28 at 13 (September 30, 1994; Interstate Chemical Company, Inc., FAA Order No. 2002-29 at 

8 (December 2, 2002). 

The Respondent is liable for a civil penalty of not less than $250 [$450 for training 

violations], nor greater than $50,000 [$100,000 if death, serious illness, severe injury, or 

substantial property damage results] for each violation of the Federal hazardous materials 

transportation law [49 U.S.C. § 5101 et seq.] and for each violation of the Department of 

Transportation Hazardous Materials Regulations [49 C.F.R. §§ 171.1 et seq.]. 

Under the Rules of Practice in FAA Civil Penalty Actions, Complainant must show that 

the proposed civil penalty is appropriate. See In the Matter of Stout, FAA Order No. 1998-12 

at 12 (June 16, 1998); 49 C.F.R. § 13.224(a). Complainant therefore has the burden of 

establishing not only the violations, but also the appropriate sanction amount. See In the 

Matter of Toyota Motor Sales, USA, FAA Order No. 1994-28 at 6-7 (September 30, 1994). 

The FAA's Sanction Guidance Table that pertains to hazardous materials cases is found 

in the FAA's Compliance and Enforcement Manual, Order 2150.3B, at Appendix C, attached 

as Exhibit 8. The Sanction Guidance is used to assess civil penalty amounts for hazardous 

materials cases. FAA Hazardous Materials Special Agent Paul Klimas conducted the 

investigation when American Airlines reported the discrepancy to the FAA. See Declaration of 

Paul Klimas, attached as Exhibit 9 and incorporated by reference into this motion. Mr. Klimas 

also recommended the $500 civil penalty that was proposed in the Notice of Proposed Civil 

Penalty. Id. When the case was initiated, the Notice of Proposed Civil Penalty that was issued 

proposed a civil penalty amount of $500.00. 

Mr. Klimas followed the FAA Sanction Guidance when he recommended a $500 civil 

penalty. Respondent was a ticketed passenger on American Airlines; therefore, he is an 

individual, which is a Category A offender, based on the FAA Sanction Guidance Matrix. See 

Exhibit 8 at C-12; Exhibit 9 at 1. The torch lighter found in the Respondent's checked 

baggage was an undeclared hazardous material that was within the hazmat quantity limitations. 

Accessed at http://rgl.faa.gov by selecting "Orders/Notices," then "Current Orders; By Number." Appendix C was also 

published in the Federal Register: 64 Fed.Reg. 19443 (April 21, 1999). 
which is a Category II offense in the FAA Sanction Guidance Matrix. Exhibit 8 at C-12; 

Exhibit 9 at 1. The butane fuel and the propane fuel cylinders were forbidden from carriage on 

passenger-carrying aircraft, which is a Category III offense in the FAA Sanction Guidance 

Matrix. Exhibit 8 at C-12; Exhibit 9 at 1. Because of the presence of the torch lighter, the 

aggregate case was treated as a Category II offense for the purposes of assessing a civil penalty. 

Exhibit 9 at 1. Therefore, the Category II penalty range was considered, which is $250 -

$1,100 for an individual. Id. One general violation, 49 C.F.R. § 171.2(e), was used to 

encompass all violations because the Respondent is an individual. Id. 

The penalty assessment took into consideration the facts of the case, which included the 

types and quantities of the hazardous materials involved. Id. at 2. All three items were in 

hazard class/division 2.1, flammable gas. Id. All 2.1 flammable gasses are in Risk Category A. 

Exhibit 8 at C-17. Materials are assigned to Risk Category A because those are materials 

which pose the highest risk to air transportation: if released in the confines of an aircraft, they 

can potentially have a catastrophic effect on the ability of the aircraft to continue safe flight, 

resulting in death or injury to the flight crew, passengers, and even persons on the ground. 

Exhibit 8 at C-17; Exhibit 9 at 2. The fact that a material is in Risk Category A tends to give a 

maximum weight to the case. Exhibit 9 at 2 . 

Also factored into the penalty determination was the fact that the quantity of hazardous 

materials involved was small, which would tend to give a minimum weight to the case. See 

Exhibit 9 at 2. There was no injury to persons or damage to property involved because the 

undeclared materials were discovered by TSA prior to being place on the aircraft; accordingly, 

there was no elevation of the weight of the case back up towards the maximum penalty range. 

Id. Accordingly, the case warranted a low moderate weighting with a resultant $500 civil 

penalty. Id. The $500 civil penalty amount is also appropriate for the forbidden materials 

because $500 is the minimum amount that can be assessed for those materials that are 

forbidden on passenger aircraft. Id. at 2; see also Exhibit 8 at C-12. 

Additionally, the requested civil penalty is not unwarranted by precedent. Individuals 

who offered hazardous materials to an air carrier in checked baggage were assessed civil 

penalties that exceeded the one requested in the case at bar. See In the Matter ofRaine Smith, 

Docket No. CP07EA0012, DMS No. FAA-2007-28718 (May 29, 2008) [a civil penalty of 

$3,125 assessed for five violations]; FAA v. Todd Kaden,. FAA Docket No. CP05NM0024, 
DMS No. FAA-2005-22081 (June 22, 2006) [a civil penalty of $3,000 assessed for eleven 

violations]; FAA v. Randy Raggon, FAA Docket No. CP06NM0011, DMS No. FAA-2006-

26512 (October 18, 2007) [a civil penalty of $2,500 assessed for two violations]. 

Standard of Decision 

Rule 218(f)(5), Motion for Decision, of the Rules of Practice in FAA Civil Penalty 

Actions provides that a party is enfitled to a Motion for Decision "if the pleadings, depositions, 

answers to interrogatories, admissions, matters that the administrative law judge has officially 

noticed, or evidence introduced during the hearing show that there is no genuine issue of 

material fact and that the party making the motion is entitled to a decision as a matter of law." 

14 C.F.R. § 13.218(f)(5). The moving party has the burden of showing that there is no genuine 

issue of material fact disputed by the parties. Id. See also Pennsylvania v. Riley, 84 F.3d 125, 

130 (3'^'^ Cir. 1996). Because the FAA is offering additional materials to support its motion, the 

motion is titled as one for summary judgment, rather than a motion for a decision on the 

pleadings. A motion for summary judgment under Federal Rule of Civil Procedure 56(e) may 

be supported by affidavits as well as by other evidence. An evidentiary hearing before an 

administrative law judge need not be conducted if all material issues of fact can be adequately 

resolved on the basis of the written record. See Knott v. FERC, 386 F.3d (1'' Cir. 2004); Delta 

Air Lines v. Department of Transportation, 51 F.3d 1065 (D.C. Cir 1995). 

IV. Conclusion 

Respondent failed to file an Answer, therefore the Complainant's allegations are all 

deemed to be admitted as true. Additionally, Respondent acknowledged the facts constituting 

the violations, and has therefore admitted liability under the HMR. There being no dispute. 

Complainant is entitled to judgment on the violations as a matter of law. Additionally, 

Complainant has articulated the reasonable basis upon which an appropriate civil penalty 

amount of $500 is requested. Based on the foregoing. Complainant moves that the 

Administrative Law Judge grant the FAA summary judgment in its favor in the abovereferenced cause number on the violations; find that a $500.00 civil penalty is an appropriate 

10 
amount; and therefore issue an Order finding the violations as alleged and assessing a civil 

penalty in the amount of $500.00. 

ith Dated this 4'" day of January 2010. 

Respectfiilly submitted, 

LYNETTE WORD 

Regional Counsel 

Federal Aviation Administration 

Southwest Region 

>nton 

Attorney 

>22-5089 

(817) 222-5092 (FAX) 

CERTIFICATE OF SERVICE 

I hereby certify that on this date the original and one copy of the foregoing Motion for 

Summary Judgment for Civil Penalty Action CP09SW008, FDMS No. 2009-1044 was filed by 

Federal Express Priority Overnight Tracking No. 8696 7963 6090 

with the Hearing Docket Clerk, AGC-430, at: 

Hearing Docket 

Federal Aviation Administration 

600 Independence Avenue, SW 

Wilbur Wright Building - Suite 2W1000 

Washington DC 20591 

Attention: Hearing Docket Clerk, AGC-430 

Telephone: (202) 385-8229 or 8230 

I hereby also certify that on this date a true and correct copy of the foregoing Complainant's 

Motion For Summary Judgment for Civil Penalty Action CP09SW008, FDMS No. 2009-1044 

was filed by Federal Express Priority Overnight Tracking No. 

8696 7963 6068 with the ALJ, who was not assigned at the time this 

motion was filed: 

Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

400 Seventh Street, S.W., Room 5411 

Washington, D.C. 20590 

Telephone:(202) 366-2132 

11 
I hereby also certify that on this date a true and correct copy of the foregoing Complainant's 

Motion for Summary Judgment for Civil Penalty Action No. CP09SW008, FDMS No. 2009-

1044 was served by Federal Express Priority Overnight Tracking No. 

8696 7963 6080 on the Respondent at the address provided by the 

Respondent: ... . 

Dr. William A. Luker, Jr. 

11907 Winterthur Lane, Apt. PH3 

Reston, VA 20191-1937 

Marqi^ta Robinson Date 

Paralegal Specialist 

12 
EXHIBIT 1 
? U1 

o o 

I 

m 

i 

< 

1 
u 

' r y 

?_ 
EXHIBIT 2 
UJ 

c 

lU 

a 

c 

S 

CO 

O 

Q 

X i 1 ^ 

E s 

5 I 

§ s 

« 18 

o 

• o 

c 

o 

o 

I 

• o 

« 

• o 

c 

n 

« 

IE 

S 

D> 

,C 

IS I f I 

n 

>• e 

ll" 5 | 

a 

5. 

£ 

(0 

z 

o 

i 

": 8 

c £ 

O O 

III, 

o S^ 

- z ^ 

| s « 

S i r 

Is^ 

| i & 

lU goT - CM « © ^ 

a a a S a 

(O (O (0 0.(0 

a> 

o 

o 

i 

CO 

CM 

OJ 

(Q 

T3 

JO 

I 

E 

(0 

E a g 

(0 I 

Si 

II It 

Si 

Uj o 

< 

o 

CO 

u- S >" ^ 

Z o 

CO 

o 

O 

o 

Q 

UJ 

Q 

I 

E 

(Q 

I 

E 

1— 

Si 

c 

ui 

.s 

E 

3 

Z 

LU %. 

CD . ^ 

UJ i 

UJ ^ 

LU E 

H S 

Z 2 

LU il 

< 

CO 

a. 

CM 

l>. 

CM 

CM 

CM" 

1 ^ 2-

co 

< 

O 5 

^ 0) 

.^ 

o 

E 

.5 

i 

Q. hc ,- _ l 1 

^ 5 ; 

.c ;:r 

+-• o 

1^ 907 ston 

^ 0) 

T- a : 

i2 

•O TO 

0 E 

1 £ 

| £ 

!±l. | 

I' 

o TM 

O OJ 

< 

Q 

LU 

O 

CO 

o 

o 

LU 

CD 

Q 

3 

w 

Q. 

Q. 

o" 

S> 

(0 

O 

O) 

0) 

L U OJ 

o ^ 

ziS 

a: o8 

LU « 

z 5 

CO ^ 

CO LL 

2^ 

a: 

z 

Q. 

JO 

(5 

CO 

CO 

LU 

(T. 

Q 

Q 

< 

Q. 

N 

I - LU 

LU H 

LU < 

CO 

CO 

QL O 

C3> 

|2 

(U 

3 

LL. 

0) 

C 

iS 

0) 

3 

U. 

0) 

c 

(0 

£3. 

O 

C 

01 

E 

o O 

u :E 

< o 

CO 

U . Q. 

§ 1 

CD S 

Q "2 

Z) " 

(JL -O 

O ^ 

Z ^ 

o » 

a. 5 

O 0) 

^ i 

LU g 

a 

LU 

s 

00 

C3> 

O 

t 

CO 

(0 

a. 

i 

i'a: 

13 

Eg 

o LU 

CO r ^ 

CL 

CO 

LU 

CQ 

3 . ^ 

I 

>> 

c 

O 

QC 

LU 

CQ 

S 

D 

Z 

H 

X 

CD 

CD 

< 

CQ 

• — . 

Z 

O 

H-

< 

Z 

H 

CO 

U i 

Q 

E 

3 

Z 

2> (0 

H 

o> CD 

m 

Q) 

o 

X? 

"(0 

c 1— 

0) 

.is 

c 

^. 

l io . 

^ 

5 

E 3 C 

OT 

b Q: LU 

O 
EXHIBIT 3 
l^age 1 of \ 

Bill Luker Jr <billjLiker<g)comcast,net> 

Paul Klimas/ASW/FAA@FAA 

Date : Friday, May 15, 2009 02:26PM 

Subject: EIR 2009SW70O191 

Va^r Mr. KlimUS; 

Tn T^r^feisnce t o t.he riaLter WR discusse d ;jn the phonft, iafid aidiyjr. w:iiL;ri 

"i rm.'eivod a re.'^i.i!l.*>red lotte r from r.he FAA on rh e Ir'in of Mi-:y. 

On rhc dd^.e reftiirrnd LO I n t.Jio iftttcr, • vjc.ii or: .Tiy vi.ay t o A'.jEri.n, 7K/ 

for a ;;i£irripo-.jr. with [i-.y son'.-; Bey Gt^on: Trc;ip .iLstin . Tnis we,'^ v.c on <a 

b<if:kpackiiiC) i r' p t o th e tJiiChAfiCsd Rock are a VKS^T. of .'\i:S!.in. Bf:i.-:aLise 

of LhH? n<-Tf.jrc of th e trip , r brought two b^ickpacki nq stovns anu Lwo 

backpacking laiii.ern?, a s well a s backpacking ten:.Si and •nijc:!<pa(.-ks. Tn 

rtiV hast e t o caLch r.he pjsne:, 1 thrtiTM the propane ami butane vyiiroftr?; 

in my duffeL bag, campletsi y forqeLting nz thai, momenr. tha t t]:f:y vif.io 

subst.ar.ces t'nat ootjld not be transporte d cni a p];.inrr. Aftyr I Wri.s in 

Lhe securit y line , one o i th e baggaye inspectors approached me ar:d 

pointe d out tha t he had found thos e items ir. ny duffel, dnd vm-.ild have 

r.o i:onfisua".e Lheir., unless ther e was sotneonc a t the Airport who c-Oijild 

take LJ'!e:ri b<3ck to my hoHie, 

I sai d ro , apologized for the MTflTAKL, made in HAST?;, and iMt::'. on 

.ibouL my business, 

SinooroLy, 

Dt". Wi^liarr. A I.uker Jr 

11907 Winterthur Lane 

Apt PH:i 

Pesr.on VA 20191 

hltps://aiiwmam.t'aa.gov/[nail0/pkJimas.nsr/($lnbox)/7724jE8B5F.AF97F,F852575B7006... 5/26/2009 
EXHIBIT 4 
U.S. Department of Transportation 

FEDERAL AVIATION ADMINISTRATION 

Hazardous Materials Branch, ASW-740 

PHOTOGRAPH # 1 

Photograph # 1: 

Photographer's Name: 

Date of Photograph: 

Location: 

'"Xlamera: 

Filro Brand/Speed: 

ShuttetSpeed: 

Lens Opening: 

Documents the 16.4 oz. propane fuel canister offered by 

American Airlines passenger William LUCKER at DFW 

International Airport, Texas for air transportation to 

Baltimore-Washington Thurgood Marshall International 

Airport (BWI), Maryland on April 19, 2009. Photographs of 

the butane and the lighter were not available. 

Charles Fisher 

April 30, 2009 

DFW - Hanger 1 complex, American Airlines 

Unknown Digital Camera 

Digital 

Unknown 

Unknown 

Interviewed/Reviewed on ,At 

By MM Specialist Paul D. KLIMAS 

FAA Form 1600-32-1 (9-86) 

File No. 2009SW700191 

FOR OFFICIAL USE ONLY 

(Public availability to be determined 

under 5 U.S.C. 552) 
EXHIBIT 5 
274654 ^ ParW 5103A164T 

PROPANE, 16.4-OZ. CYLINDER 

928 THE COLEMAN CO. • 13P 

Buyer. Linda J . Kosakowski 

Ferrellgas Material Safety Data Sheet - Propane 

Ferrellgas One Liberty Plaza Liberty, MO 64068 

Section 1: Emergency Information 

24 Hour 

Emergency 

Number 

Warning! 

NFPA hazard 

rating 

Call 1-800-424-9300 (Chemtrec) in case of emergencies involving propane. 

Extremely flammable compressed gas. 

• Asphyxiant in high concentrations. 

• Skin contact with liquid causes bums similar to frostbite. 

• Ethyl mercaptan used as a warning agent may not be entirely effective in all situations. 

Read the warnings in section 9. 

Hazard ratings are in the following table 

Health hazard = 1 

Fire hazard ". 4 

Reactivity = 0 

Where: 

0 = Least 

1 = Slight 

2 = Moderate 

3 = High 

4 = Extreme 

General MSDS Call 816-792-6916 for general assistance with questions about this MSDS. 

assistance 

Section 2: Hazardous Components/Identity information 

Product Propane - odorized 

Chemical name Propane 

Chemical family Liquefied Petroleum Gas (Paraflinic Hydrocarbons) 

Hazardous 

components 

Propane may contain various percentages of these hazardous components, dq>ending on the 

source of simply. 

Component 

Propane 

Propylene 

Butane and heavier 

Ethane 

Ethyl Mercaptan (Odorant) 

CAS Number 

74-98-6 

115-107-1 

106-97-8 

74-84-0 

75-08-1 

Percentase 

8S-100 

O-IO 

0-2.5 

0 - 5 

<0.1 

Material Data Safety Sheet Page 1 
Section 3: Health information 

Purpose 

Eye contact 

Skin contact 

Inhalation 

Ingestion 

Signs and 

symptoms 

Aggravated 

medical 

conditioRs 

Acute toxicity 

data 

The health effects are consistent with requirements of the OSHA Hazard Communication 

Standard (29 CFR 1910.1200). 

Direct contact with liquid propane can result in eye bums. 

Direct contact with liquid propane can result in skin burr^ (frostbite). 

This product is classified as a simple asphyxiant. 

High vapor concentrations may produce a reversible central nervous system depression 

(anesthesia). 

Higher concentrations may produce asphyxiation. 

Ingestion is not likely. 

Eye or skin bums (frostbite) as noted previously. 

Early to modeiate central nervous system depression may be evidenced by giddiness, 

headache, dizziness and nausea. In extreme cases, unconsciousness may occur. 

Asphyxiation may be noted by a sudden loss of consciousness. Death may quickly follow. 

Caution is recommended for personnel with pre-existing central nervous system or chronic 

respiratory diseases. 

Acute toxicity data is not applicable to this product. 

Carcinogenicity This product is not classified as a carcinogen. 

Occupational 

exposure limits 

Use this table to detemiine the allowable exposure limits for persoimel. 

OSHA 

PEL/TWA PEL/Ceiling 

Propane: 1,000 PPM 

Butane: 800 PPM Not established 

ACGIH 

TLV/TWA TLV/STEL 

Butane: 800 PPM Not established 

Cardiac effects While there is no evidence that exposure to industrially acceptable levels of hydrocarbons 

have produced cardiac effects in humans, animal studies have shown that inhalation of high 

vapor levels of the components of this product have produced cardiac sensitization. Such 

sensitization may cause fatal changes in heart rhythms. This latter effect was shown to be 

_, enhanced by hypoxia or the injection of adrenaline-like agents. 

Effects of Laboratory animals exposed to high levels of propylene for prolonged periods of time 

propylene showed evidence of effects in the liver, kidnejrs, and nasal cavity. 
Section 4: Emergency and First Aid Procedures 

Purpose Follow these procedures in case of personal injuries resulting from use of this product. 

Eye contact with Flush eyes with water. Get medical attention. 

liquid 

Skin contact with Flush with water. If frostbite or bum occurs, get medical attention. 

liquid 

Inhalation 

Ingestion 

Remove victim to fresh air and provide oxygen if breathing is difficult. 

Seek immediate medical attention if victim is not breathing. Give artificial respiration. 

Not applicable to this product. 

Section 5: Physical Data 

Physical 

properties 

Refer to this table for the physical propeities of this product 

Property 

Appearance and odor 

Boiling point 

Evaporation rate (Butyl Acetate = 1) 

Flash point 

Liquid to vapor expansion ratio 

Molecular weight 

Solubility in water 

Specific };ravity (liquid) 

Specific gravity (vapor) 

Vapor pressure (maximum) 

Value 

Colorless gas, liquid under pressure. 

Mercaptan "rotten tBK$" odor 

-44 degrees F. 

<1 (diffuses readily) 

-156 degrees F. 

1:270 

44.096 

Slight 

0.500-0.510 (Water =1) 

l.S2(Air=l) 

208 PSIG (^ 100 degrees F. 

Section 6: Fire and Explosion Hazards 

Flammability 

limite 

Ignition 

. " temperature 

Extinguishing 

media 

Flammability limits by volume in air. 

• Lower 2.15 percent 

• Upper 9.6 percent 

Auto Ignition temperature is 940 degrees, F. 

Allow product to bum if soiuce cannot be shut off safely. 

• Class B-C or A-B-C dry chemical or halon extinguishers can be used on small fires. 

• Apply water from a safe distance to cool containers, surrounding equipment, and 

structures. 

ConUiuuid on next page 

Material Data Safety Sheet Page 3 
Section 6: Fire and Explosion Hazards, Continued 

Special fire 

fighting 

procedures and 

precautions 

Extremely flammable. Containers may explode if not sufficiently cooled with water spray. 

Evacuate surrounding area of unprotected personnel and isolate. Do not enter confined fire 

space without fiiil bunker gear (helmet with face shield, bunker coats, gloves, and rubber 

boots) and a positive pressure NIOSH approved self contained breathing apparatus. 

Section?: Reactivity 

Stability anf) 

hazardous 

polymerization 

Conditions and 

materials to 

avoid 

Hazardous 

decomposition 

products 

This product is stable. Hazardous polymerization will not occin:. 

Avoid heat, sparks, flame and contact witli strong oxidizing agents. Avoid buildups of static 

electricity. 

• Prevent vapor accumulation. 

Carbon monoxide and unidentified organic products may be formed during combustion. 

Section 8: Employee Protection 

Respiratory 

protection 

Protective 

clothing 

Additional 

protective 

measures 

Use a NIOSH approved respirator as required when airfoom exposure limits are exceeded. 

• In accord with 29 CFR 1910.134, use either an atmosphere supplying respirator or an air 

purifying respirator for organic vapors. 

Avoid liquid contact with eyes or skin. 

• Wear safety glasses or goggles as appropriate. 

• Wear protective clothing as appropriate. 

L'se explosion-proof ventilation as required to control vapor concentrations. 

Section 9: Precautions For Safe Handling and Use 

Release, spill or 

leak procedures 

Warning! Extremely flammable. 

• Eliminate sources of ignition. 

• Isolate hazard area and deny entry to unnecessary or unprotected personnel. 

• Stay upwind and keep out of low areas. 

• Notify local fire department 

• Disperse vapor clouds with water spray. 

• Shut off source of feak only if it can be done safely. 

Continued on next page 
Section 9: Precautions For Safe Handling and Use, Continued 

Training 

Handling and 

storing 

DOT cylinders 

Special 

precautions 

Propane 

odorization 

Train all personnel involved in handling propane in proper handling and operating 

procedures. 

• Document all training. 

Handle and store propane in accordance with NFPA 58 and local fire codes. 

• Keep containers away firom heat sources or temperatures exceeding 130 degrees F. 

• Do not drop or roll any container. 

• Store and transport containers with relief valves in vapor space. 

• Keep all container valves closed when not in use. 

• Keep protective caps (if applicable) on containers when not in use. 

Take these precautions when using DOT cylinders. 

• Periodically inspect and requalify DOT cylinders in accordance with DOT and NFPA 58 

codes. 

• Store and use cylinders with valves off and the relief valves in the container vapor space. 

• Shut all valves and follow recommended procedures before exchanging cylinders. 

Containers, even those that have been emptied, can contain explosive vapors. 

• Do not cut, drill, grind, weld or perform similar operations on or near containers. 

Warning! Any smell of odorant, even a faint one, may indicate a dangerous situation. 

Ethyl mercaptan is the preferred warning agent for propane. Although ethyl mercaptan 

has excellent warning properties, "It is recognized that no odorant will be completely 

effective as a warning agent in every circumstance" (NFPA 58 A-1-4.1,1992 edition). 

Instances in which odorants may lose their effectiveitess include, but are not limited to: 

• Odor may fade due to chemical oxidation in improperly prepared new tanks and cyhnders 

or fh>m lust, air. and water in used containers that have been allowed to stand open to the 

atmosphere. 

• Odor may be absorbed and adsorbed by the walls of containers and distribution systems. 

• Odor in the gas escaping from underground leaks may be absorbed by certain types of 

soils. 

" Effectiveness of the odorant may be reduced by cold temperatures. 

• Other odors, such as from cooking or from a musty basement, nuiy mask or cover up the 

mercaptan odor in propane. 

• Exposure to the mercaptan odor of propane for extended periods of time may affect a 

person's ability to detect the odorant 

• Physical disabilities or the use of alcohol, tobacco, or dmgs may decrease a person's 

ability to detect the odorant. 

Section 10: Transportation Requirements 

DOT shipping 

name 

DOT 

classification 

Other DOT 

requirements 

Liquefied Petroleum Gas 

Division 2.1 (Flammable Gas) 

UN 1075, Hazardous Materials Guide Number 115. 

Material Data Safety Sheet Page 5 
Section 11: Other Regulatory Controls 

EPA/TSCA 

EPA Hazard 

Classification 

Ozone depleting 

substances 

RCRA 

Information 

State regulatory 

information 

The components of this product are listed on the EPA/TSCA inventory of chemical 

substances. 

This product is classified by 40 CFR 372 (SARA Section 313) as: 

Acnte Hazard 

XXX 

Chronic Hazard Fire Hazard 

XXX 

Pressure Hazard 

XXX 

Reactive Hazard 

This product does not contain, nor was it directly manufactured with; any class I or class 

II ozone depleting substances. 

This product is not subject to 40CFR 268.30 ban on the disposal of hazardous wastes. 

If this product becomes a waste material, it would be an ignitable hazardous waste, having 

a waste code number DOOOl. Refer to latest EPA or state regulations regarding proper 

disposal. Under EPA-RCRA, containers are considered hazardous tmless depressurized to a 

pressure approaching atmospheric. Depressurize containers at a controlled rate to a flare. 

The ingredients in this product are specifically listed by individual states; other product 

specific health and safety data in other sections of the MSDS may also be applicable for state 

requirements. 

• Contact the appropriate agency in your state for details on your regulatory requirements. 

Section 12: Supplemental Information 

Disclaimer of The information in this MSDS was obtained from sources which we believe are reliable. 

liability However, the information is provided without any warranty, express or Implied, 

regarding its correctness. 

The conditions or methods of handling, storage, use and disposal of this product are beyond 

our control and may be beyond our knowledge. For this and other reasons, we do not 

assume responsibility and expressly diaclaim liability for loss, damage, or expense 

arising out of or in any way connected with the handling, storage, use, or disposal of 

this product. 

Issue inforir>ation This MSDS supersedes all previous editions. 

• Issued November, 1999 

• Issued by; C.C. Slisz, Manager of Safety 

Ferrellgas 

One Liberty Plaza 

Liberty, MO 64068 
EXHIBIT 6 
?*;irr^4'*''*^'*y#^**^'*^->V •' 

MSDS 

Revised 07 Aug 2006 Printed 09 Apr 2007 

BUTANE FUEL 09701-712C 

MATERIAL IDENTIFICATION 

Marketer 

Phone Number 

Transportation Emergency: 

Chemical Trade Name, 

synonyms: 

ChemJcaf Family; 

Chemical Formula: 

COMPONENTS 

Material 

isobutane (volume) 

n-butane (volume) 

Coleman Co., Inc. 

2111-RE. 37* Street 

Wichita. KS 67219 

316-832-2546 

CHEMTREC 800-424-9300 

A-28 

Petroleum Hydrocarbon, 

mixture 

CAS Number 

75-28-5 

106-97-8 

Alkane 

HMIS Hazard Class: 

Health = 1 

Flammability = 4 

Reactivity = 0 

' 

PEL/TLV, Source Percent 

Not Established 78-83 

800 ppm, OSHA 18-22 

PHYSICAL DATA 

Boiling Point 

Pressure in can at 70''F 

appox. ICQ^F 

Approx. 28 psjg 

Vapor Density (Air=1) 

SSIlibility in water 

Specific Gravity (Water^l) 

Percent Volatile by weight 

Evaporation Rate (BuAce=1) 

Greater than 1.0 

Less than 0.1% By Weight @ 70F 

Less than 1.0 

100% 

Flash evaporates 

Appearance and odor Liquefied compressed gas, flash evaporates at room temperature when 

released from can, cobrless gas with strong mercaptan (skunk-like) 

odor due to stenching agent added to gas for leak detection purposes. 
HAZARDOUS REACTIVITY 

Stability 

Conditions to avoid 

Stable 

Contact with sparks, open flame or any source of ignition. 

Hazardous Polymerization Will not occur 

Hazardous Decompositk>n 

Products May produce cartx)n monoxide when oxidized wKh a deficiency of oxygen. 

FIRE AND EXPLOSION DATA 

Flammability Category 

Flash Point 

Extremely Flammable (Reference - Consumer Product Commission, flame projection 

test for aerosol produces, per 16 CW 1500.45) 

Less than-117"'F 

Flammable Limits LEL%1.8 UEL% 8.4 

Extinguishing Media 

Unusual Fire and 

Explosion Hazards 

Special Fire Fighting 

Procedures 

If feasible, stop fk>w of gas. Use water to cool fire-exposed cans, sun-oundings 

and to protect personnel working on shut off. Water spray, dry powder or 

cartxsn dioxkie can be directed at flame area, if gas flow cannot be stopped, 

to reduce fire intensity. DO NOT COMPLETELY EXTINGUISH FLAME 

UNLESS GAS FLOW IS SHUT OFF! 

Avoid possible bursting of aerosol can. Do not store where temperature may 

exceed 120''F. Do not puncture or incinerate. 

Avoid possible accumulations of vapors at floor level, as vapor is heavier than 

air. Self-contained breathing apparatus and protective clothing should be worn 

in fighting fires involving chemicals. 

This product is extremely flammable at all times. Keep away from any sources 

of inadvertent ignition, including heat, fire, sparks, or flame. 

HEALTH HAZARD INFORMATION 

Suggested Exposure Guideline 

Primary Route of Exposure 

Inhalation 

Skin Contact 

Eye Contact 

Carcinogenicity 

800 ppm 

Inhalation, skin contact 

This product is an asphyxiate and may exhibit anesthetic properties at 

very high concentratkHis. Initial symptoms of exposure at these concentrations 

are disorientatbn, lack of coordination, rapkl respiration, headache, and 

nausea. Continued exposure may result in unconsciousness, coma, and 

and possible death. 

Contact with liquefied gas or gas under pressure may cause skin bums 

and frostbite. 

The gas phase is not expected to cause eye irritation. However, the liquid 

can cause frostbite and burns. This hazard evaluation is based on the 

data from similar materials. 

None of the components in this material are listed by lARC, NTP, OSHA. or 

ACGIH as a carcinogen. 

z 
FIRST AID 

Inhalation Remove to fresh air. Artificial respiration, consult physician. 

Skin Contact. 

Eye Contact 

Ingestion 

Treat burned or frostbitten skin by flushing or immersing affected areas in 

lukewami water. If skin is not burned, keep warm and stimulate circulation 

with massage. Seek immediate medical attention. 

Flush eyes well with running water for 15 minutes. 

NA, product is gaseous at normal temperature and pressure, 

exhibited no cardiac or pulmonary fiinction abnormalities. 

SPILL OR LEAK PROCEDURES 

Steps to be taken in 

case material is released 

or spilled 

Waste disposal method 

Protect from any ignition source, keep away from heat, fire, sparks, or flame. 

Ventilate area well. Avoid accumulation of vapor at low levels. 

Dispose of in accordance with all local, state and federal 

regulations. Do not puncture or incinerate. 

SPECIAL PROTECTION INFORMATION 

Respiration Protection If TLV is exceeded wear NIOSH-approved self-contained breathing 

device or respirator. 

Ventilation Must be adequate to maintain vapors at less than 800 ppm, 

particularly at floor level as vapors are heavier than air. 

Protective gloves 

Eye Protection 

None needed for normal use. Solvent-resistant rubt)er type recommended 

if prolonged exposure expected. 

Safety glasses or goggles recommended 

HANDLING AND STORAGE PRECAUTIONS 

Precautions to be taken 

in handling and storage Do not store where temperature may exceed 120°F. Store away ft"om, fire, 

sparks, or flame. Store in suitable area for hazardous materials storage. 

SPECIAL PRECAUTIONS 

Precautions for usage Do not use near heat, fire, flame or sparks. Avoid excessive 

breathing of vapor. Do not spray in direction of body. Use only 

in accordance with directions. 

Notice: This data represents typical values, not product specifications. No guarantee of accuracy or 

completeness is made. No re^onsibility is assumed for any kind of loss or damages arising from use of this 

data. 

End of MSDS 
EXHIBIT 7 
MATERIAL SAFETY DATA SHEET 

This form may be used to comply with OSHA's Hazard 

Communication Standard, 29 CFR 1910.1200. To be valid all 

information required by 1910.1200(g) of the Standard must appear on 

this form. Consult the Standard for specific requirements. Note: 

Blank spaces are not permitted. If any item is not applicable, or no 

information is available, the space must be marked to indicate that. 

Quick Name Identifier/Common Name: 

Butane Ligliter 

UPC/SKU:M0001 

SECTION 1 - CHEMICAL PRODUCT AND COMPANY IDENTIFICATION 

Manufactured For: 

Candle Lamp Company 

1799 Rustin Avenue 

Riverside, CA 92507 

24 Hour Emergency Telephone Number: 

1-800-255-3924 or 1-813-977-3668 (Collect Calls Accepted) 

Information Telephone Number: 1 -951 -682-9600 

Date Prepared: 12/6/06 

General or Generic Name: Butane, Propane 

SECTION 2- COMPOSITION/INFORMATION ON INGREDIENTS 

Trade Name 

Butane (n-Butane) 

Propane (n-Propane) 

CAS# 

106-97-8 

74-98-6 

Concentration 

(%) 

80 

20 

OSHA PEL 

N/A 

1,000 PPM 

ACGIH TLV 

800 PPM 

1000 PPM 

Otiier Limits 

Recommended 

NIOSH-800 PPM 

NIOSH-1,000 PPM 

SECTION 3 - HAZARDS IDENTIFICATION 

Route(s) of Entry 

Health Hazards (Acute 

and Chronic) 

Carcinogenicity 

Signs and Symptoms of 

Exposure 

Medical Conditions 

Generally Aggravated by 

Exposure 

Inhalation, skin and/or ingestion. 

Extreme flammability; vapor clouds easily ignited; simple asphyxiation; frostbite to skin and eyes 

from contact with liquid gases. 

None 

Drowsiness or dizziness possible at low concentrations of the gases. 

Personnel with pre-existing chronic respiratory diseases should avoid exposure to these gases. 

SECTION 4 - FIRST AID MEASURES 

Emergency and First Aid 

Procedures 

Remove affected personnel from contaminated area to fresh air. For respiratory distress, give air, 

oxygen, and administer cardio-pulmonary resuscitation as needed. For bums to eye, remove contact 

lenses and immediately flush with water for at least 15 minute. Frozen skin should be flooded with 

warm water (105-115°F). 

SECTION 5 - FIRE FIGHTl 

Flammable Limits (% by volume) 

Flash Point 

Fire Extinguishing Media 

"Spe^yal fire Fighting Procedures 

Urmsual Fire and Explosion 

Hazards 

NFPA Rating: 0-Least, 1-Slight, 

2-Moderate, 3-High, 4-Extreme 

HMIS Rating: 0-Least, 1-Slight, 

2-Moderate, 3-High, 4-Extreme 

NG MEASURES 

LEL1.8 UEL 8.4 

-120°F(O.C.) 

Carbon dioxide, dry chemical, fog or water spray. 

Confine fire to immediate area. Disperse liquid or vapor if leaks occur. 

Will form explosive mixtures from air. Vapors from liquefied gas initially heavier than air 

and spread along ground. Vapors may travel to ignition source and flash back. 

Health - I, Flammability - 4, Reactivity - 0 

Health - 0, Flammability - 4, Reactivity - 0 

SECTION 6 - ACCIDENTAL RELEASE MEASURES 

In case of Spill | Remove all ignition sources. Ventilate area of leak to disperse the gas. 

MSDS l.D. # 2009-3 CLC - Butane Lighter 

REV 1/02/09 

Page 1 of 3 
SECTION 7 - HANDLING AND STORAGE 

Handling & 

Storage 

Store in a cool, dry place. Keep away from heat, sparks and flame. Do not store in temperatures exceeding 120°F 

or in direct sunlight. 

Other 

Precautions 

Do not store widi strong acids (e.g. hydrochloric acid, sulphuric acid), strong bases (e.g. sodium hydroxide, 

potassium hydroxide), oxidizing agents (e.g. perchlorates, peroxides, permanganates, chlorates, nitrates, chlorine, 

fluorine, bromine) and mixtures of nickel carbonyl and oxygen. 

SECTION 8 - EXPOSURE CONTROLS / PERSONAL PROTECTION 

Respiratory Protection 

Ventilation 

Protective Gloves 

Eye Protection 

Other Protective 

Clothing and 

Equipment 

Work/ Hygienic 

Practices 

Not required for normal use. For excessive gas concentrations use NIOSH/MSHA approved SCBA. 

Local Exhaust: Maintain level below .25 LEL. 

Mechanical (General): Maintain level below .25 LEL 

Rubber gloves. 

ANSI approved chemical workers goggles. 

Not required. 

On skin contact with butane, immediately immerse the affected body part in warm water. 

SECTION 9 - PHYSICAL DATA AND CHEMICAL PROPERTIES 

Boiling Point 

Vapor Pressure (mm Hg) 

Vapor Density (Air = 1) 

Solubility in Water 

Appearance and Odor 

Specific Gravity (H2O = I) 

Melting Point 

Evaporation Rate 

(Butyl Acetate = 1) 

I0.9°F 

1823 

2 

@ 77°C, I7cc per lOOOcc of water 

Clear, Odorless 

0.56 

N/A 

>1 

10. STABILITY AND REACTIVITY 

Stability 

Conditions to Avoid 

Incompatibility (Materials to 

AvoidO 

Hazardous Decomposition or 

Byproducts 

Hazardous Polymerization 

Stable. 

Heat, sparks, open flame. 

Strong acids, alkalis and oxidizers 

Combustion may produce carbon monoxide. 

Will not occur. 

I L TOXICOLOGICAL INFORMATION - N/A 

12. ECOLOGICAL INFORMATION - N/A 

13. DISPOSAL INFORMATION 

Waste Disposal 

Method 

Discharge at moderate rate in well ventilated area without ignition sources. 

MSDS l.D. # 2009-3 CLC - Butane Lighter 

REV 1/02/09 

Page 2 of 3 
14. TRANSPORTATION 

WHMIS Classification 

Department of Transportation 

A-Compressed Gas B-1 -Flammable Gas 

Proper shipping name: Lighters, containing flammable gas 

Hazard Classificatiori: DOT 2.1 

Identification Number: UN 1057 

15. REGULATORY INFORMATION 

Respirator Information In the absence of local approval authorities/standards, follow US NIOSH/MSHA, UK BSI 

regulations. Respirators must meet either the above or local standard for approved respirators. 

16. OTHER INFORMATION 

The above data is based on tests and experience, which Candle Lamp Company believes reliable and is supplied for informational 

purposes only. The Candle Lamp Company's products are intended for sale to industrial and commercial customers. Candle 

Lamp Company requests that customers inspect and test our products before use and satisfy themselves as to contents and 

suitability. Some information presented and conclusions drawn herein may be from sources other than direct test data on the 

substance itself. Candle Lamp Company disclaims any liability for daniage or injury which results from the use of the above data, 

and nothing contained therein shall constitute a guarantee, warranty (including warranty or merchantability) representation 

(including freedom from patent liability) by the Candle Lamp Company with respect to data, the product described, or their use 

for any specific purpose, even if that purpose is known to Candle Lamp Company. 

MSDS l.D. # 2009-3 CLC Butane Lighter 

REV 1/02/09 

Page 3 of 3 
EXHIBIT 8 
U.S. DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

National Policy 

ORDER 

2150.3B 

Effective Date; 

10/01/07 

SUBJ: FAA Compliance and Enforcement Program 

Tliis order contains policies, procedures, and guidelines for the Federal Aviation Administration's 

compliance and enforcement program. The order also articulates the FAA's philosophy for using 

various remedies, including education, corrective action, informal action, remedial training, 

administrative action, and legal enforcement action, to address noncompliance with statutory and 

regulatory requirements enforced by the FAA. It provides for the public a written statement of the 

Administrator's policy guidance for imposing sanctions for violations of such requirements. 

The order is used at all levels by agency personnel who are engaged in the investigation, reporting, 

and processing of enforcement actions. It applies to all offices with regulatory responsibilities. 

This revision of the order comprehensively updates policies, procedures, guidance, and assignments of 

responsibility. It reorganizes the order in a manner more useful for agency persoimel and is available 

electronically to agency personnel and the public. The revision amends agency sanction guidance to 

conform to statutory changes resulting from Vision 1 OOCentury of Aviation Reauthorization Act and 

incorporates guidance into the agency's compliance and enforcement program order on policies and 

programs that have developed since the last comprehensive order revision in 1988. Those include 

policies relating to the FAA's exercise of its authority to administratively assess civil penalties and 

guidance on the agency's voluntary safety programs. 

A workgroup of agency personnel from the field and headquarters with extensive experience in 

statutory and regulatory enforcement reviewed the agency's policies and programs in this area to 

produce this comprehensive revision of the agency order on its compliance and enforcement program. 

/m 

Robert A. Sturgi 

Acting Admini 

Distribution: A-W-1;A-W (AT/PS/SM)-2;A-W (PP/AM/SF/ Initiated By: AGC-300 

GCIFS/IA/VS)-3;A-XYZ (A T/AF/CS)-2;Z-X (AS/AM/GC/FS)-3; 

A-Y (AM/AR1GC)-3;A-Z (AM/AN/GC)-3;A-FAC/FACIFCS-0; 

A-F AF/FA T/FIA-0(L TD);ZFS-325 
10/01/07 2150.3B 

b. AVR Support Central 9-7 

c. User Comments 9-7 

Appendixes . 

Appendix A: Sample Documents 

Appendix B: Table of Sanctions for All Enforcement Programs, Except Hazardous Materials 

Appendix C: Sanction Guidance—Hazardous Materials Enforcement 

Appendix D: Selected Statutes 

Appendix E: Examples 

Appendix F: Enforcement Decision Tool 

Appendix G: FAA Form 2150-5, Codes for Blocks 19-24 

XV 
10/01/07 2150.3B 

Appendix C. Sanction Guidance 

Hazardous Materials Enforcement 

1. Background. 

a. Legislation. Congress determined that the unregulated transportation of hazardous 

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

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

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

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

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

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

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

minimum penalty for any such violation. The HMTA was recodified in 1994 and is now referred 

to as the "Federal hazardous material transportation law," 1994 U.S. Code Congress. & Admin. 

News 108 Stat. 759, codified at 49 U.S.C. §§ 5101-5127. In the 1994 recodification, Congress 

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

statute. In 2005, the Congress enacted and the President signed the Safe, Accountable, Flexible, 

Efficient Transportation Equity Act: A Legacy for Users (SAFETEA - LU), Public Law 109-59, 

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

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

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

§ 2461 (note), as amended by the Debt Collection Improvement Act of 1996, Public Law 

104-134, April 26, 1996, provides a mechanism for adjustments for monetary civil penalties for 

inflation in order to maintain the deterrent effect of monetary civil penalties and promote 

compliance with the law. Under the statute, the adjusted civil penalty maximums cannot be 

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

13 of Title 14 of the CFR, subpart H. 

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

of the Federal hazardous material law or a hazardous material regulation is now $50,000; the 

minimum civil penalty is now $250. There are two exceptions to those limits. A maximum civil 

penalty of $100,000 may be assessed if the violation results in death, serious illness, or severe 

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

be assessed for a training violation is $450. 

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

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

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

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

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

and the HMR, with particular emphasis on shipment of hazmat by air. 49 C.F.R. § 1.47(j). 

0-1 
10/01/07 2150.3B 

d. Violation of the HMRs. The HMR set forth regulations for the transportation of hazmat. 

A knowing violation of the statute or of the HMR can support the assessment of a civil penalty 

between $250 and $100,000. A person acts knowingly when the person has actual knowledge of 

the facts giving rise to the violation; or a reasonable person acting in the circumstances and 

exercising reasonable care would have that knowledge. 49 U.S.C. § 5123(a)(1)(A). The civil 

penalties authorized under the statute apply to each violation of any regulation set forth in the 

HMR; they also apply to the violation of an order, special permit, or approval issued by the 

Department. Moreover, under the statute, each continuing violation of the HMR can constitute a 

separate violation for each day a violation continues. In section 5124 of the statute, Congress 

prescribed criminal penalties for a willful violation of the Federal hazardous material 

transportation law or the HMR; willful violations require evidence of both knowledge of the 

laws and regulafions and intent to violate them. 

e. Investigative and Enforcement Procedures. Part 13 of the Federal Aviation 

Regulations - Investigative and Enforcement Procedures (14 C.F.R. part 13) governs the 

procedures applicable to enforcement of the HMR by the FAA. Hazmat violations occurring on 

or after August 2, 1990, may be dismissed by an administrative law judge (ALJ) if a notice of 

proposed civil penalty has not been issued within 2 years of the violation, unless good cause for 

delay has been shown. 14 C.F.R. § 13.208(d). 

2. Consideration of Statutory Criteria. As a general matter, a sanction should be imposed 

that is sufficiently deterrent but not excessive, in order to comply with the underlying purposes 

of the Federal hazardous material transportation law and HMR. In determining the sanction to 

be assessed, penalty criteria set forth in 49 U.S.C. § 5123 must be considered. These criteria are 

the nature, circumstances, extent, and gravity of the violation; the degree of culpability of the 

violator; the history of past violations (if any); the ability to pay; the effect on the ability to 

continue to do business; and other matters as justice requires. Some of these considerations 

already are factored to some extent into the categories in the Hazardous Material Sanction 

Guidance Matrix. The statutory factors are fiirther considered under the weighting analysis that 

is performed to indicate the amount of the civil penalty within the appropriate range, i.e., at the 

minimum, moderate, or maximum portion of the sanction range. The Matrix recognizes that an 

even higher penalty could be warranted for a significantly aggravated case, consistent with the 

increased maximum penalty of $50,000 imposed by SAFETEA-LU. In addition, the Matrix 

reflects the potential $100,000 penalty, also imposed by SAFETEA-LU, for a violation that 

resuhs in death, serious illness, or severe injury to any person, or substantial destruction of 

property. 

3. Consistency of Penalty Sanctions. The Hazardous Materials Sanction Guidance is designed 

to promote better consistency so that similar penalties are imposed in similar cases. The 

specified Matrix ranges (e.g., $250-$550, or $15,000-$32,500) are intended to reflect the nature, 

circumstances, extent, and gravity of the case as compared with other types of cases. Each case, 

however, must be evaluated on its own facts. A sanction may differ from the specified Matrix 

ranges when the facts and circumstances of a case support either a greater or lesser penalty. 

When a special agent believes that a penalty should exceed the specified Matrix ranges, the agent 

should consult with legal counsel before fiirther processing of the Enforcement Investigative 

Report (EIR). This consultation is not necessary in the case of a recommended penalty that is 

0-2 
10/01/07 2150.38 

less than that provided in the Matrix. In either situation, the basis for the decision to go outside 

the ranges should be explained in detail. 

4. Part 1.75 Violations. Violations of part 175 of the HMR, which establish particular 

requirements for air carriers and other aircraft operators, are contained in a separate matrix. 

However, such operators often offer hazardous materials for air transportation, as well as accept 

and transport them. For this reason, such operators may be liable for violations both as a 

business entity within the Hazardous Materials Sanction Guidance Matrix, as well as for specific 

air carrier violations. 

5. Violation Committed by Small Business Entity. To meet statistics-gathering requirements, 

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

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

(SBREFA). For an extensive discussion of how to make that determination, see Part One -

Abbreviations and Definitions, in Appendix B of this order. If investigating special agents are 

unable to obtain independently information to determine whether an alleged violator is a small 

business concern, they request such information in the letter of investigation. See sample letter 

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

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

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

the correct size limit for an alleged violator. 

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

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

provide for the reduction or waiver of civil penalties for statutory or regulatory violations by 

small entities, the FAA's policy may contain certain conditions. Those conditions may allow for 

excluding from such a reduction or waiver: a small entity that has been subject to multiple 

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

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

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

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

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

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

who conducts an inspection of a small business concern that is regulated by the FAA provides 

the small business concern with an information sheet. The information sheet informs that entity 

that it may submit complaints or comments regarding unfair FAA regulatory enforcement to the 

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

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

regional offices. 

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

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

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

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

0-3 
10/01/07 2150.3B 

or waive a penalty only if the small business entity provides evidence to demonstrate its inability 

to pay or that the proposed penalty would prevent the entity from continuing in business. 

d. Enforcement Actions Other than Civil Penalties. The FAA may, in limited 

circumstances, announce policies to provide for hazmat enforcement actions less onerous than 

civil penalties, that is, administrative actions. Such policies may apply to small business entities 

or to others, and will be announced as Compliance and Enforcement Bulletins in this order. 

6. Use of the Sanction Guidance. This guidance provides agency persoimel with a systematic 

way to evaluate a case and arrive at an appropriate penalty, considering all the relevant statutory 

criteria including mitigating and aggravating circumstances, if any. Statutory considerations 

have been factored into the various ranges within the Sanction Guidance Matrix. Determination 

of where a sanction lies within these ranges is aided by a series of weighting questions that probe 

the various aggravating and mitigating factors that may exist in a case. 

a. Weight Analysis. First, the weighting analysis is performed. Agency personnel respond 

to a series of questions to determine the aggregate weight of the case. The aggregate weight of 

the case helps determine the sanction amount for each violation group within the established 

ranges of the Matrix. 

b. Determination of Sanction. It is important to note that determination of where the 

sanction lies within the Matrix is not the result of a mathematical computation. Evaluation of the 

case is based on the totality of the facts and circumstances. Generally, if the answer to a 

particular question represents a more significant aspect of a case, greater consideration should be 

given to that answer. For example, violations involving an extremely dangerous substance, even 

in minute quantities, might warrant a penalty at the maximum end of the range or even a penalty 

exceeding the Matrix ranges (if not already at the statutory maximum). 

c. Determination of Category. Under the Sanction Guidance Matrix, agency personnel 

determine the category of violator the person falls within (for example, business entity that 

regularly offers, accepts, or transports hazmat) and the offense category (for example, undeclared 

shipment within hazmat quantity limitations). The sanction ranges under the various violator 

categories take into account the relative culpability of the violator. Similarly, the offense 

categories address the nature, circumstances, and gravity of the particular offense. After 

determining the appropriate categories and intersecting box of the Matrix, agency personnel then 

determine which subcategories of offenses {for example, shipping papers) are alleged to have 

been violated. Based on the weighting analysis performed in subparagraphs 8.a.-e., an 

appropriate penalty is assigned for each of the applicable violation groups. The penalty amount 

for each relevant violation group is added together to reach the recommended sanction. 

d. Other Relevant Sanction Factors. Under subparagraph 8.g., the special agent then 

considers other relevant factors, including evidence of corrective action. A recommended 

sanction may be reduced prior to the issuance of a notice of proposed civil penalty when there is 

adequate reliable information concerning the corrective actions taken by a respondent. 

Corrective actions that justify reduction of the recommended penalty must exceed the minimum 

0-4 
10/01/07 2150.3B 

legal requirements. The special agent also attempts to provide information concerning the 

alleged violator's size, financial condition, and ability to pay a recommended sanction. 

7. FAA Legal Counsel Review. When an EIR is forwarded to legal counsel for. enforcement 

action, counsel will give appropriate consideration to the recommended sanction. FAA legal 

counsel will also review the factors, analysis, and determinations under the Hazardous Materials 

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

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

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

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

8. Federal Aviation Administration Hazardous Materials Sanction Guidance. This 

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

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

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

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

(1) This section contains a series of questions to assist a special agent in evaluating a 

case and recommending a sanction. It also assists an attorney in evaluating a case file prior to 

initiation, and after additional information is received in response to a notice of proposed civil 

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

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

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

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

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

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

minimum, moderate, or maximum should be assigned based on the response to the question. 

With the exception o{ Question (l)(a), not all questions will necessarily apply to a given fact 

situation. Question (l)(a) addresses the nature of the hazardous material(s) involved, and the 

evidence will indicate the risk category and, therefore, the weight. The aggravating or mitigating 

factors addressed in the other questions only apply to the case when the question receives ayes 

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

considered. For example, that the violafion did not result in injury or damage is not a mitigating 

factor, and should not result in penalty mitigation. In many instances, the answers to most or all 

of the quesdons will be no and the only relevant weighting factor in this secfion will be the risk 

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

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

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

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

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

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

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

0-5 
10/01/07 2150.3B 

determined, the final aggregate weight is then utilized to arrive at the recommended sanction for 

each applicable violation group on the Sanction Guidance Matrix (See, Figure C-1). 

b.. The Nature, Circumstances, Extent, and Gravity of the Violation (Factors 

Concerning the Shipment): 

(1) What material(s) was offered, transported, or accepted for air transportation? Figure 

C-2 divides hazardous materials of particular classes, divisions, and packing groups into three 

risk categories: Category A, Category B, and Category C. Find the material offered, transported, 

or accepted, in Figure C-2 and answer the questions below. 

• If the material(s) is in Category A, assign a Maximum weight. 

• If the material(s) is in Category B, assign a Moderate weight. 

• If the material(s) is in Category C, assign a Minimum weight. 

Guidance Note: The categories in Figure C-2 represent the inherent risk of danger to air 

transportation posed by the material. If there is more than one type of hazardous material 

involved in the shipment, use the hazardous material in the highest risk category. 

(2) What quantity of the material(s) was offered, transported, or accepted for air 

transportation? 

• Did the package(s) exceed the authorized quantity limitations by a significant 

amount? liyes, consider a Moderate or Maximum weight depending on the degree to which the 

limitation was exceeded. 

Guidance Example: The quantity limitation for gasoline on a passenger plane is 5 liters per 

package. If a violator offers 30 liters in a single package on a passenger plane, assign a 

maximum weight for this factor. 

• Did the package contain a forbidden material? If yes, assign a Maximum weight. 

• Were there multiple packages in the shipment? If yes, consider a Moderate or 

Maximum weight, depending on the number of packages and total amount of hazardous material 

being transported in violation. 

Guidance Note: A package means a packaging plus its contents. There may be multiple 

packages in one shipment or overpack. Multiple packages often represent multiple violations. 

Under the Sanction Guidance, this fact is considered an aggravating circumstance rather than a 

direct multiplier of the sanction for each violation. Each case, however, must be evaluated on its 

particular facts. A very large number of packages may result in such an egregious case that the 

overall weight of the case is so high that a penalty beyond the maximum point in the range is 

warranted. 

An investigation will occasionally reveal sufficient evidence of several shipments from the same 

offeror over a period of several days, all of which involve violations of the HMR. These 

independent acts of offering usually are consolidated into one EIR and addressed in one notice 

0-6 
10/01/07 2150.3B 

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

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

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

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

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

penalty, with each count having its own sanction derived from application of this guidance. 

(3) Did the shipment cause some damage or harm to persons or property or interfere with 

commerce? If yes, consider a Moderate or Maximum weight. 

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

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

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

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

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

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

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

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

of the violator. 

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

Maximum weight. 

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

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

of culpability will ordinarily be imputed to it. 

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

consider a Minimum or Moderate weight. 

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

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

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

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

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

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

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

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

"reshipper " refers to a person, other than the original offeror, who offers a shipment of 

hazardous material for transportation.) 

(3) Did the violator reasonably rely on incorrect information from another source? If 

yes, consider a Minimum weight. 

0-7 
10/01/07 2150.3B 

Guidance Note: Detrimental, reasonable reliance on another party may be a mitigating factor 

when considering the violator's degree of culpability. For example, reliance on an inaccurate 

Material Safety Data Sheet (MSDS) would be mitigating. 

(4) Does the violator have a history of previous HMR violations? If yes, consider a 

Moderate or Maximum weight. 

Guidance Note: To establish a violation history, a prior violation must be an actual finding of 

violation pursuant to a legal enforcement action. Special agents should attempt to determine the 

corporate structure of the violator and whether other business entities or names are or have 

been used by the entity in order to obtain a complete violation history. The number and age of 

violations should be considered. Ordinarily, findings of violation more than 5 years old carry 

less weight, unless a continuing pattern of violation exists. 

d. Other Factors. 

(1) Each case must be evaluated on its particular facts. As such, many cases may present 

unique scenarios and aggravating or mitigating factors that are not routinely seen. If an 

aggravating or mitigating circumstance exists that is not adequately addressed elsewhere in the 

sanction guidance, it may be included and assigned a weight under this section. The factor 

should be clearly identified and explained in the analysis portion of the EIR and carefully 

scrutinized by legal counsel. 

Guidance Note: For example, a shipment of a single package containing several different 

hazardous materials may present an aggravating factor. The degree of seriousness of this factor 

will increase if the hazardous materials are incompatible with each other and, therefore, create 

an increased risk. 

Mitigating factors may also exist that have not been adequately considered. For example, a 

shipment containing a de minimis quantity of material or an amount that would have qualified 

under the small quantity exception of 49 C.F.R. §173.4 may present a mitigating factor if as a 

result there was a reduced risk to safety in transportation. That the material could have been 

shipped as a consumer commodity can also be a mitigating factor. 

e. Determine the Final Aggregate Weight of the Case. 

(I) All the responses/weights are evaluated to determine a final aggregate weight for the 

case (Minimum, Moderate, and Maximum.). Questions receiving a no response will not be 

included in this evaluation. To determine the final aggregate weight, the agent or attomey must 

exercise his or her discretion in light of the statutory factors and knowledge of the particular 

facts of the case. The facts of the particular case will dictate the relative importance of each of 

the weighting factors in reaching the final aggregate weight. The final aggregate weight should 

be decided as a result of careful analysis, not a mathematical averaging. It is possible that a 

single weighting factor may outweigh all others. The agent or attorney's analysis should always 

be explained in this regard. 

0-8 
10/01/07 2150.3B 

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

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

resulting from the shipment. 

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

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

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

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

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

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

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

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

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

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

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

upward departure is justified, a single penalty amount for each violation group is ordinarily used 

to reach the full sanction. 

(2) Instructions. 

• Identify the appropriate category for the type of entity and the nature of the 

offense involved in the case. Refer to the Definitions Section that follows the Matrix in Figure 

C-1 for guidance. Go to the intersecting box and identify the applicable sanction range for each 

violation group. 

• Apply the conclusion reached in the subparagraphs 8.a.-e. weighting analysis to 

assign a sanction amount within the minimum, moderate, or maximum portion of the sanction 

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

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

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

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

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

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

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

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

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

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

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

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

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

agent should consult with legal counsel before further processing of the EIR. (However, in no 

case may the civil penalty per violation exceed the maximum allowed by law.) Conversely, the 

investigating agent may believe that mitigating factors justify a downward departure from the 

0-9 
10/01/07 2150.3B 

Matrix range. Consultation with legal counsel is not necessary in the case of a recommended 

penalty that is less than that provided in the Matrix. (However, in no case may the civil penalty 

per violation be less than the minimum allowed by law.) In either situation, however, the agent 

is to provide a detailed explanation of the basis for the decision to go outside the ranges. 

(4) Violations of part 175 regulafions, which establish particular requirements for air 

carriers and other aircraft operators, are contained in a separate matrix. However, such operators 

often offer hazmat for air transportation as well as accept and transport it. As such, the operator 

may be liable for violations as a business entity within the main Matrix as well as for the specific 

part 175 violations. 

g. Impact of Other Statutory Factors. The Federal hazardous material transportation law 

also requires consideration of a violator's ability to pay a civil penalty, the impact of the civil 

penalty on the violator's ability to continue to do business, and other matters that justice 

requires. Consideration of these factors may result in adjustment of the recommended civil 

penalty calculated in subparagraph 8.f. In situations where the agent or attomey is in possession 

of mifigating information, such an inability to pay the recommended civil penalty or corrective 

action taken, reduction of the recommended penalty may be appropriate. Mifigating informafion 

should be sufficiently reliable, uncontroverted, and documented in order to support reduction of 

the recommended civil penalty prior to issuing the notice of proposed civil penalty. 

(1) Ability to pay or continue in business. Historically, the FAA has considered these 

factors after the issuance of the notice of proposed civil penalty due to the absence of reliable 

financial information on which to base a reduction prior to the issuance of a notice. This 

Sanction Guidance recommends that the special agent make efforts to obtain reliable information 

regarding the violator's size and financial condition for review prior to the issuance of a notice. 

This information will be transmitted to the legal office for consideration. It is recognized that it 

may not always be possible for the special agent and/or attomey to obtain reliable financial 

information on a particular respondent, that financial circumstances change, and that information 

may be provided after the issuance of the nofice that may warrant fiirther consideration of a 

respondent's ability to pay. 

• The investigating agent will attempt to include financial information as an exhibit 

in the EIR. It is anticipated that this information, if available, will be obtained from reliable 

financial data bases. Financial documentation should include, but need not be limited to, 

information conceming the violator's corporate stmcture, business address, officers, number of 

employees, and gross revenues. 

• The investigating agent provides a statement or comment with respect to the 

financial informafion obtained but ordinarily does not evaluate the financial condition of a 

respondent with respect to its ability to pay a proposed civil penalty. The investigating agent's 

statement should encompass areas like the number of employees, gross revenues, and nature of 

business of the violator. 

• FAA legal counsel reviews the financial information provided in the EIR and 

evaluates its sufficiency and relevance to the recommended civil penalty. Legal counsel may 

0-10 
10/01/07 2150.3B 

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

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

preparafion of the EIR. If there is a basis for determining that the recommended sanction is 

inappropriate based upon the financial information provided in the EIR, the recommended 

sancfion is adjusted prior to issuance of the notice of proposed civil penalty. This is a 

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

recommended civil penalty does not preclude further considerafion of a respondent's financial 

claims after issuance of the notice. 

(2) Corrective Action. 

• The most common other matter that the FAA takes into consideration is corrective 

action. Correcfive action that results in mitigation is remedial acfion that exceeds the minimum 

legal requirements. The primary factors in determining the appropriate amount of penalty 

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

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

was taken. Systemic change intended to prevent fiiture violations should be given greater 

consideration. Similarly, correcfive action that commences upon the violator's first leaming of 

the violations ordinarily is given greater credit than corrective action that commences only after 

the violator receives the letter of invesfigation or the notice of proposed civil penalty. 

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

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

already has been given for such action. 

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

above. 

0-11 
10/01/07 2150.3B 

MATRIX & DEFINITIONS 

(Figure C-1) 

OFFENSE 

CATEGORIES 

I. Declared Shipment 

1. Shipping Papers 

2. Labels 

3. Markings 

4. Packaging 

5. Training 

6. Emerg. Response 

7. Release into Environ. 

8. Other 

II. Undeclared Shipment 

Within Hazmat 

Quantity Limitations 

1. Shipping Papers 

2. Labels 

3. Markings 

4. Packaging 

5. Training 

6. Emerg. Response 

7. Release into Environ. 

8. Other 

III. Undeclared 

Shipment 

Hazmat Forbidden on. 

or exceeds atv limits for. 

Passenger Aircraft 

1. Shipping Papers 

2. Labels 

3. Markings 

4. Packaging 

5. Training 

6. Emerg. Response 

7. Release into Environ. 

8. Other 

IV. Undeclared 

Shipment 

Forbidden on, or 

exceeds atv limits for. 

All Aircraft 

1. Shipping Papers 

2. Labels 

3. Markings 

4. Packaging 

5. Training 

6. Emerg. Response 

7. Release into Environ. 

8. Other 

V. Intentional or 

' 

A. Individual* 

250-550 

250-550 

250-550 

250-550 

250-550 

250-550 

250-550 

250-1,100 

250-1,100 

250-1,100 

250-1,100 

250-1,100 

250-1,100 

250-1,100 

500-5,500 

500-5,500 

500-5,500 

500-5,500 

500-5,500 

500-5,500 

500-5,500 

500-32,500 

500-32,500 

500-32,500 

500-32,500 

500-32,500 

500-32,500 

500-32,500 

CONSULT 

* 

B. Business Entity 

250-1,100 

250-1,100 

250-1,100 

250-1,100 

450-1,100 

250-1,100 

250-1,100 

250-1,100 

1,500-8,200 

1,500-8,200 

1,500-8,200 

1,500-8,200 

1,500-8,200 

1,500-8,200 

1,500-8,200 

1,500-8,200 

5,000-16,200 

5,000-16,200 

5,000-16,200 

5,000-16,200 

5,000-16,200 

5,000-16,200 

5,000-16,200 

5,000-16,200 

7,500-32,500 

7,500-32,500 

7,500-32,500 

7,500-32,500 

7,500-32,500 

7,500-32,500 

7,500-32,500 

7,500-32,500 

CONSULT 

C. Business Entity 

that uses or handles 

hazmat in the 

course of business 

500-2,200 

500-2,200 

500-2,200 

500-2,200 

500-2,200 

500-2,200 

500-2,200 

500-2,200 

2,500-11,000 

2,500-11,000 

2,500-11,000 

2,500-11,000 

2,500-11,000 

2,500-11,000 

2,500-11,000 

2,500-11,000 

7,500-22,000 

7,500-22,000 

7,500-22,000 

7,500-22,000 

7,500-22,000 

7,500-22,000 

7,500-22,000 

7,500-22,000 

10,000-32,500 

10,000-32,500 

10,000-32,500 

10,000-32,500 

10,000-32,500 

10,000-32,500 

10,000-32,500 

10,000-32,500 

CONSULT 

D. Business Entity 

that regularly 

offers, accepts, or 

transports hazmat 

1,000-5,500 

1,000-5,500 

1,000-5,500 

1,000-5,500 

1,000-5,500 

1,000-5,500 

1,000-5,500 

1,000-5,500 

5,000-13,000 

5,000-13,000 

5,000-13,000 

5,000-13,000 

5,000-13,000 

5,000-13,000 

5,000-13,000 

5,000-13,000 

10,000-32,500 

10,000-32,500 

10,000-32,500 

10,000-32,500 

10,000-32,500 

10,000-32,500 

10,000-32,500 

10,000-32,500 

15,000-32,500 

15,000-32,500 

15,000-32,500 

15,000-32,500 

15,000-32,500 

15,000-32,500 

15,000-32,500 

15,000-32,500 

CONSULT 

0-12 
10/01/07 2150.3B 

Deliberate Violation, or 

other slsnificant 

a^sravation 

VI. Vfolation results in 

death, serious illness. 

severe iniurv. or 

substantial destruction 

of property 

LEGAL - Up to 

50,000 per offense 

category may be 

assessed 

CONSULT 

LEGAL - Up to 

100,000 per 

offense category 

may be assessed 

LEGAL - Up to 

50,000 per offense 

category may be 

assessed 

CONSULT 

LEGAL - Up to 

100,000 per 

offense category 

may be assessed 

LEGAL - Up to 

50,000 per offense 

category may be 

assessed 

CONSULT 

LEGAL - Up to 

100,000 per offense 

category may be 

assessed 

LEGAL - Up to 

50,000 per offense 

category may be 

assessed 

CONSULT 

LEGAL - Up to 

100,000 may be 

assessed 

h. ^Sanctions applicable to air carrier and commercial operator passengers and 

crewmembers. The range for the total civil penalty to be assessed, absent mifigating or 

aggravating factors, is $250 (the statutory minimum) to $1,000. 

AIR CARRIER AND OTHER AIRCRAFT 

OPERATOR VIOLATIONS 

Failure to comply with Parts 171, 172, or 173 

requirements of the HMR as an offeror of hazmat. 

Improper acceptance of hazmat for air transportation, 

(i.e., quanfity, labeling, marking, packaging, and 

shipping papers) 

See 49 C.F.R. §§ 175.30(a)(1) - (4) 

Failure to inspect hazmat shipment properly. 

See 49 C.F.R.§§ 175.30(b), (c),(d),(e) 

Improper storage/securing of hazmat aboard aircraft. 

Failure to provide hazmat training, maintain records of 

training, or meet minimum requirements for hazmat 

training (49 C.F.R.). 

Using untrained/improperly trained hazmat personnel, 

failure to retain hazmat training records (49 C.F.R.) 

Failure to nofify FAA properly of incident/discrepancies 

in hazmat shipment. 

Failure to provide nofice to the pilot-in-command. 

Other Part 175 violations. 

Intentional, deliberate, or other significanfiy aggravated 

violation. 

Violation results in death, serious illness, severe injury, or 

substantial destmcfion of property. 

£. Group I & II 

Air Carriers and 

Other Aircraft 

Operators 

Use main Matrix. 

5,000-32,500 

10,000-32,500 

10,000-32,500 

10,000-32,500 

10,000-32,500 

5,000-16,200 

5,000-16,200 

5,000-16,200 

CONSULT 

LEGAL - Up to 

50,000 per 

offense category 

may be assessed 

CONSULT 

LEGAL - Up to 

100,000 per 

offense category 

may be assessed 

F. Group III & IV 

Air Carriers and 

Other Aircraft 

Operators 

Use main Matrix. 

2,500-16,200 

5,000-16,200 

5,000-16,200 

5,000-16,200 

5,000-16,200 

1,000-5,500 

1,000-5,500 

1,000-5,500 

CONSULT LEGAL 

- Up to 50,000 per 

offense category 

may be assessed 

CONSULT LEGAL 

-Up to 100,000 per 

offense category 

may be assessed 

0-13 
10/01/07 2150.3B 

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

guidance in this appendix. 

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

other aircraft operators are divided into two categories for purposes of determining an 

appropriate sanction. These categories track the air carrier groups established in Appendix B 

this order. For purposes of hazmat sanction guidance, the FAA also includes other aircraft 

operators operating in commerce that are of similar size, e.g., part 129 Foreign Air Carriers, part 

125 Operators, and part 91 Operators. 

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

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

included in Group I for hazmat sanction guidance purposes. 

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

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

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

sanction guidance purposes. 

(3) Group III is comprised of air carriers and other aircraft operators that do not meet the 

criteria for Group II, that is, they have only 6 to 49 pilots, or only 6 to 24 aircraft. Other aircraft 

operators of the same size are included in Group III for hazmat sanction guidance purposes. 

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

the criteria for Groups I, II, or III. Other aircraft operators of the same size are included in 

Group IV for hazmat sanction guidance purposes. 

b. Business Entity. A business, corporation, partnership, Sub-S Corporation, sole 

proprietor, associafion, or any type of commercial entity. An individual v/ho offers a hazmat 

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

category. It includes a non-profit organizafion and all other entities defined under the HMR's 

definifion of person (49 C.F.R. § 171.8), with the exception of an individual (as defined below). 

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

in the Course of Its Business. A business entity that offers hazmat with some anficipated 

frequency, or purports to do so, regularly offers hazmat. For example, a catalogue company that 

offers hazardous material to its customers would fall into this category, even though its actual 

sale or transportation of the hazmat is infrequent or limited. This category includes 

manufacturer or distributor of hazmat and a freight forwarder. 

d. Business Entity that Uses, Handles Hazmat in the Course of Its Business. This 

category encompasses the business that utilizes hazmat in its business but does not offer it for 

transportafion on a regular basis, as described above. For example, a manufacturer of a nonhazmat product that uses hazmat in the manufacturing process could fall into this category. It 

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

transportation, and the shipment in this instance represents an isolated incident. This type of 

business is held to a higher standard than the business entity that has no regular involvement 

C-14 
10/01/07 2150.3B 

with hazmat. The described business entity receives the subject hazardous material in 

transportation and uses it in its business; thus, it is clearly on notice of the hazardous nature of 

the material and the regulatory requirements to which the hazmat is subject. 

e. Declared Shipment. For purposes of this sanction guidance, a declared shipment has at 

least one of the following communicative indicia—markings, labels, and/or shipping papers that 

meet the communicative requirements of the HMR. A package that has shipping papers that 

declare the contents as hazardous material, but is otherwise not marked or labeled, falls into this 

category. For purposes of this definition, a shipping paper is any document to which handlers 

refer in the normal course of transportation and that complies with one or more of the 

communicative requirements in the HMR for shipping papers. Similarly, a properly marked and 

labeled package that lacks shipping papers also falls into this category. An example of a 

shipment that would not meet this definition is one where the offeror states that the shipment 

contains hazmat, but only in paperwork to which the handlers do not refer in the normal course 

of transportation. 

f. Hazmat - A hazardous material, as defined in 49 C.F.R. § 171.8, includes and is 

interchangeable with the term dangerous goods, as used in the Intemational Civil Aviation 

Organization (ICAO) Technical Instructions. 

g. Individual - A human who offers a shipment of hazardous material in his or her personal 

capacity, without any business purpose and not as part of a commercial enterprise. 

h. Intentional or Deliberate Violation - A violation falls into this category when the 

offeror, acceptor, air carrier, or aircraft operator has knowledge of the requirements of the HMR, 

and willfully circumvents or attempts to circumvent those requirements. For example, an offeror 

who places a properly marked and labeled hazmat shipment along with properly completed 

shipping papers, into an overpack marked as printed material, has committed an intentional or 

deliberate violation. 

i. Undeclared Shipment - If a shipment does not meet the definifion of declared shipment, 

it is an undeclared shipment. 

j . Undeclared Shipment Hazmat Exceeds Quantity Limits for All Aircraft - An 

undeclared shipment that is offered for transportation on or transported on any aircraft and the 

quanfity of hazardous material exceeds the limit, per package, for transportation on cargo 

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

k. Undeclared Shipment Hazmat Exceeds Quantity Limits for Passenger Aircraft - An 

undeclared shipment that is offered for transportation on or transported on a passenger aircraft, 

and the quantity of hazardous material exceeds the limitation, per package, for transportation on 

passenger aircraft (but not for transportation on cargo aircraft), as established in the 49 C.F.R. § 

172.101 Table. 

I. Undeclared Shipment Hazmat Forbidden on All Aircraft - An undeclared shipment 

that is offered for transportation on or transported on any aircraft and the hazardous material is 

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

0-15 
10/01/07 2150.3B 

m. Undeclared Shipment Hazmat Forbidden on Passenger Aircraft - An undeclared 

shipment that is offered for transportation on or transported on a passenger aircraft, and the 

hazardous material is forbidden in air transportation on passenger aircraft (but not in.air 

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

n. Undeclared Shipment Within Hazmat Quantity Limitations. 

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

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

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

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

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

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

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

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

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

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

Exceeds Quantity Limits for...Aircraft, or Undeclared Shipment Hazmat Forbidden 

on...Aircraft, see above. 

0-16 
10/01/07 2150.3B 

RISK CATEGORIES 

(Figure C-2) 

CATEGORY "A" 

{Maximum Weight} 

Category "A" materials are materials that when released in the confines of an aircraft can potentially have a catastrophic 

effect on an aircraft's ability to continue safe flight, resulting in a crash or emergency landing causing injury or death to 

passengers and flightcrew, as well as persons on the ground. 

Class 1 Explosives: Division 1.1,1.2,1.3, 

Class 2 Compressed Gases All 2.1, 2.2 with Subsidiary Risk 5.1 and All 2.3 PIH Zones A-D 

Class 3 Flammable Liquids PG I, II, and (PIH) 

Class 4 Division 4.1 Flammable Solids PG I, & (Matches) 

Division 4.2 Spontaneously Combustible Materials PG I (Pyrophoric) 

Division 4.3 Dangerous When Wet PG I 

Class 5 Division 5.1 Oxidizing Liquids and Solids PG I, II, e.g., "Chemical Oxygen Generators" 

Division 5.2 Organic Peroxides PG II (Type A,B,C,D) 

Class 6 Division 6.1 Toxic/Poisonous Materials PG I (PIH) 

Class 7 Cargo Aircraft Only Quantities on Passenger Aircraft 

Class 8 Corrosive Material Liquid PG I and (PIH) 

Forbidden Materials (See 49 C.F.R. § 173.21 & ICAO Technical Instructions) 

Forbidden Hazmat listed in Dangerous Goods Table 49 C.F.R. § 172.101 

CATEGORY "B" 

{Moderate Weight} 

The materials listed in Category "B" are materials that may not pose an immediate threat to the safety of a flight, but can 

cause death or injury to persons due to unintended releases In aircraft cabin areas, and potential damage to aircraft 

structures over a longer period of time due to undiscovered releases on aircraft structural components. 

Class 1 Division 1.4, 1.5,1.6, All Compatibility Groups 

Class 3 PG III Flammable Liquids 

Class 4 Division 4.1 Flammable Solids PG II, III 

Division 4.2 Spontaneously Combustible Materials PG II, III 

Division 4.3 Dangerous When Wet PG 11, III 

Class 5 Division 5.1 Oxidizing Liquids or Solids PG III 

Division 5.2 Organic Peroxides (Type E,F,G) 

Class 6 Division 6.1 Toxic/Poisonous Materials PG I, II ( NON- PIH ) 

Division 6.2 Infectious Substances 

Class 7 Radioactive Materials, yellow label II, white label I 

Class 8 Liquids PG II, III Solids PG I, II, III 

Category "C" 

{Minimum Weight} 

The materials listed in Category "C" are materials that present the least amount of risk to the transportation system. 

Class 2 2.2 Nonflammable Gas 

Class 6 Division 6.1 Toxic/Poisonous Materials PG 111 

Class 7 All other RAM (LSA, LTD QTY, Instruments, and Articles) 

Class 9 Miscellaneous Dangerous Goods {ORM-D and Consumer Commodity} 

NOTE: This guidance Is not Intended to replace the experienced judgment of a special agent who is convinced, based on 

the evidence and facts of a case, that the failure of an air carrier, shipper, freight forwarder, or passenger to follow 

established regulations has posed a risk to aviation safety. 

0-17 
EXHIBIT 9 
UNITED STATES DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

In the Matter of: 

William A. Luker, Jr. 

FAA DOCKET NO. 

(Civil Penalty Action) 

DMS NO. 

THE HONORABLE 

ADMINISTRATIVE LAW JUDGE 

DECLARATION OF PAUL KLIMAS 

I, Paul Klimas, make the following declaration in lieu of an affidavit, as permitted by 28 

U.S.C. § 1746. I am aware that this declaration is the legal equivalent of a statement uitder oath. 

I am a Hazardous Materials Special Agent for the Federal Aviation Administration. As a 

Hazardous Materials Special Agent, I conduct investigations and prepare investigative reports of 

violations of the Hazardous Materials Regulations. As part of the investigative report, 1 also 

recommend a civil penalty amount on cases that are sent to our legal department for legal 

enforcement. 

I conducted the investigation in the matter of William A. Luker under EIR no. 

2009SW700191.1 completed that investigation in June 2009. Because the case warranted legal 

action, I recommended a $500 civil penalty amount, based on our Hazardous Materials Sanction 

Guidance, found in our Compliance Manual, FAA Order 2150.33, Appendix C. 

I recommended a $500 civil penalty based on the following rationale: 

1. Mr. Luker was a ticketed passenger on American Airlines. He was therefore an 

individual, a Category A offender, based on the Sanction Guidance Matrix. 

2. The torch lighter found in Mr. Luker's checked baggage was an undeclared hazardous 

material within the hazmat quantity limitations, which is a Category 11 offense in our 

Sanction Guidance Matrix. The butane and propane fuels were forbidden from 

carriage on passenger-carrying aircraft, which is a Category 111 offense. Because of the 

presence of the torch lighter, 1 treated the aggregate case as a Category 11 offense for 

purposes of recommending a civil penalty and used the Category II offense penalty 

range, which is $250 - $1,100 for an individual. I used only the one violation cited of 

§ 171.2(e), which we generally use when the violator is an individual. 
3. In determining what civil penalty to recommend, I considered the facts of the case, 

which included the types and quantities of the hazardous materials involved. All 

three items were in hazard class 2.1, flammable gas. All class 2.1 flammable gases are 

in Risk Category A. Materials in Risk Category A pose the highest risk to air 

transportation, because if released in the confines of an aircraft can potentially have a 

catastrophic effect on the ability to continue safe flight, resulting in death or injuiy to 

the flightcrew, passengers, and even persons on the ground. The fact that a material 

is in Category A would tend to give a maximum weight to the case. 

4. However, I also considered the quantity of the materials found in Mr. Luker's checked 

baggage to be small, which would tend to make the case minimum (not moderate or 

maximum). There was no damage to persons or property, so that was not a 

consideration that would elevate the weight of the case back up towards the 

maximum. Therefore, I assigned a low moderate weight to the case and 

recommended a $500 civil penalty. That civil penalty amount was also appropriate, 

in my estimation, because $500 is the minimum amount of the penalty range for an 

undeclared shipment of hazardous materials forbidden on passenger aircraft. 

I declare under penalty of perjury under the laws of the United States of America that the 

foregoing is true and correct. Executed on this 4th day of December 2009. 

Paul Klimas 

FAA Hazardous Materials Special Agent 

Federal Aviation Administration 

Southwest Region