U.S. DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION^ 

OFFICE OF HEARINGS ''^ 

WASHINGTON, D.C. 

m 2 6 2011 

CEIVED 

In the Matter of Harrison Yacht Sales, Inc. 

FAA Docket No. CP10EA0006 

FDMS No. FAA-2010-0626 

The Honorable Ronnie A. Yoder 

EARING DOCKET 

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COMPLAINANT'S WITNESS & EXHIBIT LIST 

COMES NOW the Complainant, by and through its designated representative, 

the Regional Counsel for the Eastern Region and his designated and authorized 

agents, and provides its witness and exhibit list and copies of exhibits to be offered 

at the hearing of this matter. 

In addition to the witnesses listed by Respondent, Complainant will rely on the 

following: 

1. Earl Andreasen 

Manager 

FAA WDC Security Field Office 

Hazardous Materials and Dangerous Goods Branch, Eastern Region 

PO Box 861528 

Warrenton, VA 20187-1528 

(540)428-3156 

FAA WDC Security Field Office Manager assigned this matter for 

investigation to FAA Special Agent Ronald Grieff' As Manager, Mr. 

' ^4r. Grieff retired from the FAA in December 2010. 
^ s 

Andreasen was responsible for overseeing Ifae investigation and for reviewing 

and approving the alleged violations and die civil penalty proposed in the 

instant matter. It is anticipated that he will testify about how the proper 

sanction for Respondent's violations of the Hazardous Materials Regulations 

(HMR) was assessed, in accordance with Agency policy. 

EXHIBIT LIST 

C-1: FAA Order 2150.3B, FAA Compliance and Enforcement Program, Appendix 

C, Sanction Guidance, Hazardoiis Materials Enforcement 

C-2: Cortera Business Search for Harrison Yacht Sales, Inc. 

Copies of the exhibits the complainant proposes to offer at the hearing in 

this matter are enclosed and marked. 

Respectfully submitted, 

Alfred K Johnson, Jr. 

Regional Counsel 

By: ;MJUXX - ^ Dated: 

Jettoine C. Gotimer 

Attorney 

Federal Aviation Administration 

Office of the Regional Counsel (AEA-7) 

Eastern Region Headquarters 

1 Aviation Plaza 

Jamaica, NY 11434 

Telephone: 718 553-3272 

Facsimile: 718 995-5699 

hthi 
CERTIFICATE OF SERVICE 

I hereby certify that on this day copies of the foregoing were placed in the United 

States mail, postage prepaid. First Class Mail addressed as follows: 

And via facsimile 

The Honorable Ronnie A. Yoder 

Chief Administrative Law Judge 

U.S. Department of Transportation 

Office of Hearings, M-20, Room El 2-320 

1200 New Jersey Avenue, S.E. 

Washington, D.C. 20590 

FAX 202-366-7536 

Federal Aviation Administration (Original and one copy) 

800 Independence Avenue, S.W. 

Washington, D.C. 20591 

Attn: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building - Room 2014 

And via facsimile 

David Harrison, President 

Harrison Yacht Sales, Inc. 

106 Wells Cove Road 

P O Box 98 

Grasonville,MD 21638 

FAX 410-827-4830 

Date: 

JAN 1 8 2011 'L. n OMU-y ^ 

Marianna Perero 

Paralegal Specialist 

Office of Regional Counsel 

1 Aviation Plaza 

Jamaica, NY 11434 
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 Penalties Inflation Adjustment Act of 1990, 28 U.S.C. 

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

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

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

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

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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 regulations 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 tIMR. 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 further 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 

results 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 further processing of the Enforcement Investigative 

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

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

the ranges should be explained in detail. 

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

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

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

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

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

air carrier violations. 

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

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

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

(SBREFA). For an extensive discussion of how to make that determination, see Part 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 policy under SBREFA. In determining whether and how to 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

regional offices. 

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

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

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

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

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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 personnel 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 

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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 of Question (l)(a), not all questions will necessarily apply to a given fact 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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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-l). 

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

Concerning the Shipment): 

(1) What materiai(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? \fyes, 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 

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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? \fyes, 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. 

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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? \fyes, 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. 

(I) 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. 

(1) 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 attorney 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 careflil 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. 

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

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

resulting from the shipment. 

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

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

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

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

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

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

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

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

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

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

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

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

to reach the full sanction. 

(2) Instructions. 

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

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

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

violation group. 

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

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

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

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 identical but ordinarily is within the 

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

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

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

The facts and 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 flirther 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 

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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 regulations, 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 attorney is in possession 

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

action taken, reduction of the recommended penalty may be appropriate. Mitigating information 

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 attorney to obtain reliable financial 

information on a particular respondent, that financial circumstances change, and that information 

may be provided after the issuance of the notice that may warrant further 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 concerning the violator's corporate structure, business address, officers, number of 

employees, and gross revenues. 

• The investigating agent provides a statement or comment with respect to the 

financial information 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 

C-10 

P/^jg /o 
10/01/07 2150.3B 

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

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

preparation of the EIR. If there is a basis for determining that the recommended sanction is 

inappropriate based upon the financial information provided in the EIR, the recommended 

sanction is adjusted prior to issuance of the notice of proposed civil penalty. This is a 

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

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

claims after issuance of the notice. 

(2) Corrective Action. 

• The most common other matter that the FAA takes into consideration is corrective 

action. Corrective action that results in mitigation is remedial action that exceeds the minimum 

legal requirements. The primary factors in determining the appropriate amount of penalty 

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

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

was taken. Systemic change intended to prevent future violations should be given greater 

consideration. Similarly, corrective action that commences upon the violator's first learning of 

the violations ordinarily is given greater credit than corrective Jiction that commences only after 

the violator receives the letter of investigation or the notice of proposed civil penalty. 

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

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

already has been given for such action. 

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

above. 

C-11 1 1 ^i^BfTx 

1 (C'l) 
10/01/07 2150.38 

MATRIX & DEFINITIONS 

(Figure C-1) 

OFFENSE 

CATEGORIES 

I. Declared Sl^ipment 

1. Shipping Papers 

2. Labels 

3. Markings 

4. Packaging 

5. Training 

6. Emerg. Response 

7. Release into Environ. 

8. Other 

II. Undeclared ShiDment 

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 

Shlpmci^t 

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 

exceed^ qty limits for, 

AIIAircran 

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 

C-12 EXHIBIT 

1 Cc-i) 

fi^^e /a. 
10/01/07 2150.3B 

Deliberate Violation, or 

other sieniflcant 

aggravation 

VI. Violation result? in 

severe iniurv. or 

subf^ntial de^tnictioif 

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 mitigating 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., quantity, 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 notify FAA properly of incident/discrepancies 

in hazmat shipment. 

Failure to provide notice to the pilot-in-command. 

Other Part 175 violations. 

Intentional, deliberate, or other significantly aggravated 

violation. 

Violation results in death, serious illness, severe injury, or 

substantial destruction of property. 

E. 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 

C-13 

^ 

EXHIBIT^ 

e <3 
10/01/07 2150.3B 

9. Definitions: Note that these definitions 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 operating 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, association, or any type of commercial entity. An individual who offers a hazmat 

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

category. It includes a non-profit organization and all other entities defined under the HMR's 

definition of person (49 C.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 anticipated 

frequency, or purports to do so, regularly offers hazmat. For example, a catalogue company that 

offers hazardous material to its customers would fall into this category, even though its actual 

sale or transportation of the hazmat is infrequent or limited. This category includes 

manufacturer or distributor 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 

transportation on a regular basis, as described above. For example, a manufacturer of a nonhazmat product that uses hazmat in the manufacturing process could fall into this category. It 

must be established that the company ordinarily does not offer the hazmat it udlizes 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 l i EXHIBIT 

1 Cc-l') 

P^gg N 
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 International 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 ds printed material, has committed an intentional or 

deliberate violation. 

i. Undeclared Shipment - If a shipment does not meet the definition 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 

quantity 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. 

C-15 U EXHI^^^ 
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 tremsportation 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. 

C-16 l i EXHIBIT^ 

/6 

- ^ 
10/01/07 2150.38 

RISK CATEGORIES 

(Figure C-2) 

CATEGORY "A" 

{Maximum Weight} 

Category "A" matoriato ar* material* tliat when released In the confines o1 an aircraft can potentially have a catastrophic 

effect on an aircraft's ability to continue safe flight, reeuKIng In a crash or emergency landing caueing injury or death to 

passengers and flightcrew, as well as peisons on the ground. 

Class 1 Explosives: Division 1.1,1.2,1.3, 

Class 2 Compressed Gases Ail 2.1, 2.2 with Subsidiary Risk 5.1 and Ail 2.3 PiH Zones A-D 

Class 3 Fiammabie Liquids PG I, il, and (PiH) 

Class 4 Division 4.1 Flammable Solids PG i, & (iVIatches) 

Division 4.2 Spontaneously Combustible IMateriais 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 iMaterials PG I (PiH) 

Class 7 Cargo Aircraft Only Quantities on Passenger Aircraft 

Class 8 Corrosive Material Liquid PG i and (PiH) 

Forbidden IWIaterials (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 leieaaes in aircraft cabin areas, and potential damage to aircraft 

structurae over a longer period of time due to undiscovered releases on aircraft structural components. 

Class 1 Division 1.4,1.5,1.6, Ail 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, ill 

Division 4.3 Dangerous When Wet PG II, ill 

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, il ( 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 materiaia listed in Category "C" are materials that present the least amount of rislc to the transportation system. 

Class 2 2.2 Nonflammable Gas 

Class 6 Division 6.1 Toxic/Poisonous Materials PG III 

Class 7 Ail 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. 

C-17 l i EXHIBIT 

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Arrangement of Transportation of 

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Under $500,000 

1to 5 

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