### UNITED STATES DEPARTMENT OF TRANSPORTATION , OFFICE OF HEARINGS

WASHINGTON, D.C. 

# RECEIVED

IN THE MATTER OF 

## APR 102013 

# HEARING DOCKET JOHN CROFT FAA DOCKET NO. 2012-AWA-CPP-13423 (Civil.Penalty.Action)
DMS NO. FAA-2012-0903



### COMPLAINANT'S MOTIONFORA DECISIONAS TO SANCTION··-
OnFebruary 19, 2013, the Complainant moved for an order deeming admitted each allegation inthe complaint based on Respondent's failure to file an answer as required, and moved for a decisionregarding the**violations~** 

### Attached to this motion were affidavits and I )

..

### , ''i'l**:.~<**



### documents showing, inessence, that Respondent had admitted the underlying facts inhis prior communications withthe Agency. Respondent was served bymail, so he had 15 days inwhich
to respond. He did notrespond. By Order served onMarch 8, 2013, the lawjudge ordered Respondent to file an answer by March 22, 2013, and to show cause why the requested relief should not be granted. Respondent did notrespond in any manner. On April2, 2013, the law judge entered an order granting the Complainant's motions, and limiting the hearing to the consideration ofthe appropriate sanction. The Complainant now moves, pursuantto§ 13.218(f)(5) ofthe Rules ofPractice, for a decision as to sanction. One ofthe allegations in the complaintthat has nowbeen deemed admitted is IV.2, which states, "Underthe facts and circumstances ofthis case, a civil penalty of $12,000 is appropriate." While the Complainantwas reluctant at the time ofits prior motion to
1

### seek a decision as to sanctionbased solely onRespondent's failure to file an answer, his failure
to respond in any manner.to the lawjudge's show cause order changes things. He was specifically advised in the show cause orderthat his failure to response couldresult in the dismissal ofhis request for a hearing and/or a defaultjudgmentinthe full amount requested. By his silence he has notraised any affirmative defense, such as the inability ofpay, or shownthat there is

# a reason to convene the hearing currently set for May 1-2, 2013, in Sitka, Alaska.· In 

### fact, there is no reason to believe he Willeven attend. Unless Respondent provides a timely, meaningful response to this motion, Complainant requests, based onthe deemed admission ofiV.2 ofthe complaint, thatthe lawjudge enter an OrderAssessing Civil Penalty inthe amount of$12,000. Alternatively, based onthe attached Second Declaration ofJeffrey Deitz, Complaintrequests that the lawjudge flhd that a .civil penalty of$12,000 is appropriate in this matter, and enter an Order Assessing Civil Penalty inthe amount of$12,000. In 

### short, it establishes that the amount sought was calculated in accordance with Agency policy and guidance as required. 

### In the Matter ofTate andPartners, FAA OrderNo. 2010-7 (June 15, 2010). Absent a fmding thatthe Agency's calculationwas unreasonable, the Agency is entitled to a decision assessing that
amount. Respectfully submittedthis the 4th 

### day ofApril2013.
HOWARD L. 

### MARTIN, 

### JR Regional Counsel



### BY: 

# )ILL

Glenn H. Brown Senior Attorney



### 2

### CERTIFICATE OF SERVICE Re: John Croft FAADocketNo. 2012-AWA-CPP-13423 DMS No. FAA-2012-0903 I hereby certify that onthis date I have served a copy ofthe Complainant's MotionFor a Decision as**t~** 

### Sanctionby facsimile transmission and bypostage-prepaid, certified mail, return receipt requested, as indicated to the following: The Honorable Richard C. Goodwin Office ofHearings, M-20; U.S. Department ofTransportation 1200 NewJersey Avenue, S.E. East Building Ground Floor, Room E12-320 Washington, DC 20590 FAX: (202) 366-7536

. John Croft (viaregular and certified mail.only)

134 Lincoln Street Sitka, AK 99835 I further certify that onthis date I have served the original ofthe Complainant's Motion For a Decision as to Sanctionbypostage-prepaid, certified mail, return receipt requested, addressed as

. follows: · Federal Aviation Administration 800 Independence Avenue, S.W. Washington, DC 20591 Attention: Hearing Docket Clerk, AGC-430 Wilbur Wright Building-Suite 2Wl000 DATED:

# ~ 

# 4, 2t5JJ3

Federal Aviation Administration Office ofRegional Counsel 222 West 7thAvenue, Box 14, AAL-7 Anchorage, Alaska 99513-7587

3

### UNITED STATES DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, D.C.



### IN THE MATTER OF JOHN CROFT 

### FAA DOCKET NO. 2012-AWA-CPP-13423 (Civil Penalty Action)
DMSNO. FAA-2012-0903



### SECOND DECLARATION OFJEFFREY DEITZ 

### I, JEFFREY DEITZ, declare as follows: 1. I am a special agent and dangerous goods specialist inthe FAA's Security and Hazardous Materials Office inAnchorage, Alaska. I have worked for the FAA inhazardous materials enforcement since 1997, and I amthe agent who wrote the enforcement investigative report in this case.

2. As part ofmy official duties regarding this case, I participated in the process ofdetermining the appropriate sanction for the violations. In making such a determination, agency personnel
·must follow the sanction guidance and policies set forth in FAA Order 2150.38, Appendix C. The attached exhibit is a copy ofthis document. To calculate a penalty under the Sanction Guidance Table, the first step is to determine the final aggregate weight ofthe case. This determinationbegins with a determination ofthe risk category ofthe materialoffered, and then a consideration ofthe quantity offered and whether any damage was caused. These are followed by consideration ofthe violator's degree ofculpability and other unique factors that increase or

1

### decrease the risk the shipmentposed. The next step is to utilize the matrix to determine the sanction amount within the appropriate range for eachviolation group. The final step is to take the total calculatedunder the second step and then consider the violator's ability to pay as well as continue to do business, and any other matters thatjustice requires.

3. The five flare cartridges are inhazard class 1.4G (Explosive). They do not actually present a significant explosive hazard, butthe "G" designation means they are incendiary and an item that
may emit a toxic gas, which are significant hazards for aircraft. It

### is for these reasons that they

are prohibited onpassenger aircraft. These particular flare cartridges have two explosive charges- a propelling charge and an exploding charge that**i~tes** 

### the flare

# m the air. As with all types ofcartridges, the ammunition mustbe boxed to prevent accidental striking ofthe primers. These were not boxed, butplaced in a softbag which offeredno protection.

4. Croft was supposed to have sent the bag to Sitka on a barge. When Croftrealized he had forgotten to pickup the bag, he contacted the police who picked up the bag, and Wings of Alaska, who gotthe bag from the police and transported itby aircraft to Juneau where it was then offeredto AlaskaAirlines for transportation to Sitka. Alaska Airlines screened the bag and found the undeclared flares.

5. Appling these facts to the Sanction Guidance Table, while the 1.4G hazard class warrants a maximum final weight, we chose a final aggregate weight ofModerate based onthe small number ofcartridges and the fact Croft had no prior violation history. Using the Matrix (Figure C-1), Croft is an individual so the correct columnis A. 

### The shipment was undeclared and included items forbidden onpassenger aircraft, so the correct row is III. The range for each category ofviolations under liLAis from $500 to $5500. We ultimately selected $3000, which

2

### is the midpoint. While we could have included violations related to packaging, we did not, so there are four categories ofviolations: shipping papers, labeling, marking, and emergency response. Four categories times $3000 equals $12,000. Crofthas not provided information regarding his ability to pay, or anything else that should be considered indetermining the sanction. Hence, the Agency selected $12,000 as the appropriate sanction inthis case.

I declare under penalty of perjury that the foregoing is true and correct. Datedthis 4th day ofApri12013.



### 310/01/07



### 1. Background. Appendix C. Sanction Guidance Hazardous Materials Enforcement 2150.38

a. Legislation. Congress determined that the unregulated transpo$tion ofhazardous materials constitutes a threatto public safety in all forms oftransportation. Congress addressed thatthreat in 1974 by enacting the Hazardous Materials Transportation Act (HMTA). By 1990, Congress determined that effective enforcement ofthe HMT A required more severe action, and enacted the Hazardous Materials Transportation Uniform Safety Act of 1990, Public LawNo. 101-615, 1990 U.S.**·cod~** Congres_s.**~Admin_.** News 1_Q4 Stat. 4605. The primary effect ofthis 1990 revision ofthe HMTA was to raise the maximum civil penaltY for violation ofany regulation enacted under the HMTAto $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 thatthe recodification createdno substantive change to the earlier form ofthe 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 otherthings, modified the limitations on civil penalties thatmay be assessed for violations ofthe 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 I04-134, April 26, 1996, provides a mechanism for adjustments for monetary civil penalties fot inflation in orderto maintain the deterrent effect ofmonetary civil penalties and promote compliance with the law. Under the statute, the adjusted civil penalty maximums cannotbe applied unless they are implemented by regulation. The adjuste.d civil penalties are listed in part 13 ofTitle 14 ofthe CFR, subpartH. Pursuantto SAFETEA- LU, the maximum civil penalty that may be assessed for a violation ofthe 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 ifthe violation results in death, serious illness, or severe injury to any person, or substantial destruction ofproperty. The minimum civilpenalty that may be assessed for a training violation is $450.

c. EnforcementResponsibility. Within the Department ofTransportation, 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 ofhazardous materials (hazmat). The FAA, under delegated authority, enforces the Federal hazardous material transportation law and the HMR, with particular emphasis on shipment ofhazmatby air. 49 C.F.R. 

### § 1.470).



### C-1

### 10/01/07 2150.38
d. Violation ofthe HMRs. The HMR set forth regulations for the transportation ofhazmat. A knowing violation ofthe statute or ofthe HMRcan support the assessment ofa civil penalty between $250 and $100,000. A person acts knowingly whenthe person has actual knowledge of the facts givingrise 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 ofany regulation set forth in the HMR; they also apply to the violation ofan order, specialpermit, or approval issued by the Department. Moreover, under the statute, each continuing violation ofthe HMR can constitute a separate violation for each day a violation continues. In section 5124 ofthe statute, Congress prescribed criminal penalties for a willful violation ofthe Federal hazardous material transportation law orthe HMR; willful violations require evidence ofboth knowledge ofthe laws and regulations and intent to violate them.

. : -: : - " - ·-**~** - - - 

### - . . . -

e. Investigative and EnforcementProcedures. Part 13 ofthe Federal Aviation Regulations- Investigative and Enforcement Procedures (14 C.F.R. part 13) governs the procedures applicable to enforcement ofthe HMRby the FAA. Hazmatviolations occurring on or after August 2, 1990, may be dismissed by an administrative lawjudge (ALJ) ifa notice of proposed civil penalty has not been issued within 2 years ofthe violation, unless good cause for delay has been shown. 14 C.F.R. 

### § 13.208(d). 2. Consideration ofStatutory Criteria. As a general matter, a sanction should be imposed that is sufficiently deterrent butnot excessive, in order to comply with the underlying purposes ofthe Federal hazardous material transportation law and HMR. In determining the sanctionto be assessed, penalty criteria set forth in 49 U.S.C. 

### § 5123 must be considered. These criteria are

. the nature, circumstances, extent, and gravity ofthe violation; the degree ofculpability ofthe violator; the history ofpastviolations (ifany); the ability to pay; the effect onthe ability to continue to do business; and othermatters asjustice requires. Some ofthese considerations already are factored to some extent into the categories in the Hazardous Material Sanction Guidance Matrix. The statutory factors are further consideredunder the weighting analysis that is performed to indicate the amount ofthe civil penalty within the appropriate range, i.e., at the minimum, moderate, ormaximum portion ofthe sanction range. The Matrix recognizes that an evenhigher penalty could be warranted for a significantly aggravated case, consistent withthe increased maximum penalty of$50,000 imposedby 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 ofPenalty Sanctions. The Hazardous Materials Sanction Guidance is designed to promote better consistency so that similarpenalties 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 ofthe case as compared with other types ofcases. Each case, however, must be evaluated on its own facts. A sanction may differ from the specified Matrix ranges when the facts and circumstances ofa 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 ofthe Enforcement Investigative Report (EIR). This consultation is not necessary in the case ofa recommended penalty that is
C-210/01/07 2150.38
less than thatprovided 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 ofpart 175 ofthe 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. Forthis 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 SmallBusiness Entity. To meet statistics-gathering requirements, the investigating special**ag~n~_rn_ust**deterp1ine**wh~tht?r** the allegeq_vLolator qualifies as a small business concern under the Small Business Regulatory EnforcementFairness Act of 1996 · (SBREFA). For an extensive discussion ofhowto make that determination, see Part OneAbbreviations and Definitions, in Appendix B ofthis order. Ifinvestigating 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 ofinvestigation. See sample letter ofinvestigation in Figure A-1 ofAppendix A. Because violations ofTitle 49 ofthe U.S. Code and the HMR may be committedby entities in addition to those normally regulated by the FAA, the investigating agent may need to referto the SBA's complete table ofsize standards to find the correct size limit for an alleged violator.

a. EnforcementPolicy under SBREFA. Chapter 7, Paragraph 10, ofthis order generally outlines the FAA's enforcementpolicy under SBREFA. In determining whether and how to provide for the reduction orwaiver ofcivil penalties for statutory or regulatory violations by small entities, the FAA'spolicy may contain certain conditions. Those conditions may allow for excluding from such a reduction orwaiver: 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 whenthere has not been a good faith attempt to comply withthe 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 ofcivil penalty. See the Matrix, Figure C-1, below. b. Information Sheet for Complaints by SmallBusiness Concerns. Each FAA employee who conducts an inspection ofa small business concern that is regulated by the FAAprovides the small business concern with an information sheet. The information sheet informs that entity that it may submit complaints orcomments regarding unfair FAAregulatory enforcement to the National Ombudsman. FAA special agents may obtain a copy ofthe information sheet for hazardous materials inspections and additional guidance for distributing it from the ASH regional offices.

c. Reduction orWaiver ofPenalty. The FAA does notreduce or waive the penalty ofan alleged violator solely because it is a small business entity. This is because a violation ofthe hazmat statutes or HMRtypically poses a serious health, safety, or environmental threat (and may involve one ofthe otherreasons for exclusion). Accordingly, the FAA will usually reduce

C-3

### 10/01/07 2150.38

orwaive a penalty only ifthe small business entity provides evidence to demonstrate its inability to pay orthat the proposed penalty would preventthe 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. Suchpolicies may apply to small business entities orto others, and will be announced as Compliance and Enforcement Bulletins in this order. 6. Use ofthe 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, ifany. Statutory considerations have been factore_dintothe various ranges**~ithin** the SancJionQuidance Matrix. Determination ofwhere a sanction lies within these ranges is aided.by a series ofweighting questions thatprobe the various aggravating and mitigating factors that may exist in a case.

a. WeightAnalysis. First, the weighting analysis is performed. Agency personnel respond to a series ofquestions to determine the aggregate weight ofthe case. The aggregate weight of the case helps determine the sanction amount for each violation group within the established ranges ofthe Matrix. b. Determination ofSanction. It is important to note that determination ofwhere the sanction lies within the Matrix is notthe result ofa mathematical computation. Evaluation ofthe case is based on the totality ofthe facts and circumstances. Generally, ifthe answer to a particular question represents a more significant aspect ofa case, greater consideration should be given to that answer. Forexample, violations involving an extremely dangerous substance, even in minute quantities, might warrant apenalty at the maximum end ofthe range or even a penalty exceedingthe Matrix ranges (ifnot already atthe statutory maximum).

c. Determination ofCategory. Under the Sanction Guidance Matrix, agency personnel determine the category ofviolator 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 ofthe violator. Similarly, the offense categories address the nature, circumstances, and gravity ofthe particular offense. After determining the appropriate categories and intersecting box ofthe Matrix, agency personnel then determine which subcategories ofoffenses (for example, shippingpapers) are alleged to have been violated. Based on the weighting analysis performed in subparagraphs 8.a.-e., an appropriate penalty is assigned for each ofthe applicable violation groups. The penalty amount for eachrelevant violation group is added together to reach the recommended sanction. d. OtherRelevant Sanction Factors. Under subparagraph 8.g., the special agent then considers other relevant factors, including evidence ofcorrective action. A recommended sanction may be reduced priorto the issuance ofa notice ofproposed civil penalty when there is adequate reliable information concerning the corrective actions taken by a respondent. Corrective actions thatjustify reduction ofthe recommended penalty must exceed the minimum

C-410/01/07 2150.38 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. FAALegal CounselReview. When an EIRis 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, ifany, should be explained to, and discussed with, the investigating special agent. Final determination ofthe sanction amount proposed in the notice ofproposed civil penalty is ordinarily a product of joint decisionmaking and approval ofthe investigating agent and the legal office.

8. FederalAviationAdministration Hazardous MaterialsSanction Guidance. This Sanction Guidance is divided into three sections: case analysis; utilization ofthe Sanction Guidance Matrix (Matrix); and consideration ofother statutory factors. The Sanction Guidance Matrix is contained in Figure C-1 and the Risk Categories are contained in Figure C-2.

a. CaseAnalysis (Evaluation ofStatutory AssessmentFactors). (1) This section contains a series ofquestions 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 ofproposed civil penalty. The questions review factors involvingthe nature, circumstances, extent and gravity of the violation, the violator's degree ofculpability, and the violator's history ofprior violations. Some ofthese factors are already considered to some extent withinthe various categories ofthe Sanction Guidance Matrix. The questions in this sectionprovide additional consideration ofthe statutory factors and examine the existence ofaggravating and mitigating factors in a case. (2) The agent answers each question inSection I and determines ifa relative weight of minimum, moderate, ormaximum should be assigned based onthe response to the question. With the exception ofQuestion (l)(a), notall questions will necessarily apply to a given fact situation. Question (l)(a) addresses the nature ofthe hazardous material(s) involved, andthe evidence will indicate the risk category and, therefore, the weight. The aggravating ormitigating 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 ofthe case and are not considered. Forexample, thatthe violation did not result in injury or damage is not a mitigating factor, and should not result inpenalty mitigation. In many instances, the answers to most or all ofthe questions will be no and the only relevant weighting factor inthis section will be the risk category ofthe material identified in Question (l)(a). (3) In determining the final aggregate weight ofthe case, the responses to each ofthe questions do nothave to be equally considered. Determination ofwhether the overall case should have a minimum, moderate, or maximum weight cannotbe determined with mathematical certainty. Generally, ifthe answer to a question demonstrates thatthe factor at issue represents a more significant aspect ofthe case, greater consideration is given to that factor. The final aggregate weight is based onthe totality ofthe facts and circumstances ofthe case. Once

C-510/01/07 2150.38
determined, the final aggregate weight is then utilized to arrive at the recommended sanction for each applicable violation group onthe Sanction Guidance Matrix (See, Figure C-1)

.. b. The Nature, Circumstances, Extent, and Gravity ofthe Violation (Factors Concerning the Shipment): (1) Whatmaterial(s) was offered, transported, or accepted for airtransportation? Figure C-2 divides hazardous materials ofparticular classes, divisions, and packing groups into three risk categories: Category A, Category B, and Category C. Findthe material offered, transported, or accepted, in Figure C-2 and answer the questions below.

• Ifthe material(s) is_in CategoryA, assign a Maximum weight. • Ifthe material(s) is in Category B, assign a Moderate weight. • Ifthe material(s) is in Category C, assign a Minimum weight. GuidanceNote: The categories in Figure C-2 represent the inherent riskof danger to air transportationposedby the material. If there is more than one type of hazardous material involvedin the shipment, use the hazardous material in the highest risk category. (2) What quantity ofthe material(s) was offered, transported, or accepted for air transportation?

• Didthe package(s) exceedthe authorized quantity limitations by a significant amount? Ifyes, consider a Moderate orMaximum weight depending on the degree to which the limitation was exceeded. Guidance Example: The quantity limitation for gasoline on apassengerplane is 5 litersper package.' If a violator offers 30 liters in a singlepackage on apassengerplane, assign a maximum weight for this factor.

• Didthe package contain a forbidden material? Ifyes, assign a Maximum weight.

• Were there multiple packages inthe shipment? If yes, consider a Moderate or Maximum weight, depending on the number ofpackages and total amount ofhazardous material being transported in violation. GuidanceNote: A package means a packaging plus its contents. There may be multiple packages in one shipmentor overpack. Multiplepackages often representmultiple violations. Under the Sanction Guidance, this fact is consideredan aggravating circumstance rather than a direct multiplier of the sanction for each violation. Each case, however, mustbe evaluatedon its particular facts. A very large number of packages may result in such an egregious case that the overallweight of the case is so high thatapenalty beyondthe maximumpoint in the range is warranted. An investigation willoccasionally revealsufficientevidence of severalshipments from the same offeror over aperiodof several days, allof which involve violations of the HMR. These independent acts of offering usually are consolidatedinto one EIR andaddressed in one notice
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### 10/01/07 2150.38 of

proposedcivilpenalty. However,forpurposes of determining the appropriate sanction, each separate shipmentwith separate air waybill or shippingpapers, separate destination, and/or other evidence establishing itas a separate shipment, is ordinarily consideredas a separate incident forpurposes of applying the sanction guidance analysis. It is suggestedthat the separate shipments be treatedas individual counts in the EIR andthe notice of proposedcivil penalty, with each count having its own sanction derivedfrom application of this guidance. (3) Did the shipment cause some damage orharm to persons orproperty or interfere with commerce? If yes, consider a Moderate orMaximum weight. GuidanceNote: Thefact thatno damage occurredas a result of the shipment is nota mitigating factor. However, damage_or**~arm** may aggravate the nature, circwnstances, extf!nt, andgravity of the violation. Depending on the degree of damage causedby the shipmentand/or the existence of other aggravating factors, departurefrom the ranges may bejustified. It is important to note thatdeath, serious illness, orsevere injury to anyperson, orsubstantial destruction of property, warrants additional consideration of aggravation of the totalpenalty.



### c. Violator's Degree ofCulpability. The Matrix, Figure C-1, considers the relative culpability ofthe violator. This section ofthe analysis further evaluates the degree ofculpability ofthe violator. (1) Is the violator the manufacturer ofthe hazardous material? Ifyes, consider a Maximum weight. GuidanceNote: A manufacturer of a hazardous material isexpectedto have complete knowledge of the nature of the hazardous material it manufactures or uses; thus, a high degree of culpability will ordinarily be imputedto it. (2) Did someone other than the violatorprepare the shipment for transportation? If yes, consider a Minimum orModerate weight. GuidanceNote: Facts supporting an affirmative answer to this question may be cause to mitigate culpability and/orpursue a separate enforcement action against other responsible parties who handledthe shipment. A shipper that reships materials received from another person in the samepackaging is independently responsible for ensuring the shipmentcomplies with the HMR. Nevertheless, the reshipper is generally consideredto have a lesser degree of culpability for compliance of thepackage 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 accordedmitigation under this weightingfactor. (Forpurposes of this section, a "reshipper" refers to aperson, other than the original offeror, who offers a shipmentof hazardous material for transportation.) (3) Did the violatorreasonably rely on incorrect information from another source? If yes,.consider aMinimum weight.

.



### C-7

### 10/01/07 2150.38
Guidance Note: Detrimental, reasonable reliance on anotherpartymay be a mitigatingfactor when considering the violator's degree of culpability. For example, reliance on an inaccurate Material SafetyData Sheet (MSDS) wouldbe mitigating. (4) Does the violator have a history ofprevious HMRviolations? If yes, consider a Moderate orMaximum weight. Guidance Note: To establish a violation history, aprior violation must be an actual finding of violationpursuant to a legal enforcement qction. Special agents shouldattempt to determine the corporate structure of the violator andwhether other business entities or names are or have been usedby the entity in order to obtain a complete violation history. The number andage of violations shouldbe considered. Ordinarily,findings of violation more than 5years oldcarry iess weight, unless

# a continuingpattern ojvioiation exists.

- . .


### d. OtherFactors. (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. Ifan 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 ofthe EIR and carefully scrutinized by legal counsel. Guidance Note: For example, a shipment of a singlepackage containingseveraldifferent hazardous materials maypresentan aggravating factor. The degree of seriousness of this factor will increase 

### if the hazardous materials are incompatible with each other and, therefore, create an increasedrisk. Mitigating factors mayalso exist that have notbeen adequately considered. For example, a shipment containinga de minimis quantity of materialoran amount thatwouldhave qualified under the small quantity exception of 49 C.F.R. § 173.4 maypresenta mitigatingfactor 

### if as a result there was a reducedrisk to safety in transportation. That the material couldhave been shippedas a consumer commodity can also be a mitigating factor.



### e. DeterminetheFinal Aggregate Weight ofthe Case. (1) All the responses/weights are evaluated to determine a final aggregate weight for the case (Minimum, Moderate, andMaximum.). 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 orher discretion in light ofthe statutory factors and knowledge ofthe particular facts ofthe case. The facts ofthe particular case will dictate the relative importance ofeach of the weighting factors in reaching the fmal aggregate weight. The final aggregate weight should be decided as a result ofcareful analysis, not a mathematical averaging. Itis possible that a single weighting factor may outweigh all others. The agent or attorney's analysis should always be explained in this regard.

C-810/01/07 2150.38.

Guidance Example: A case involvinga hazardous material in the lowest riskcategory may be evaluatedto have a maximum weightbecause of the large quantityshippedor the damage resulting from the shipment. f. 

### Utilize the Matrix (Figure C-1). (1) The sanction ranges under the offeror and offense categories ofthe Sanction Guidance Matrix reflect the relative culpability ofthe violator and the nature, circumstances, extent, and gravity ofcases for the majority ofviolations. Consideration ofthese particular statutory factors under the Federal hazardous material transportation law is built into the Matrix. Further**analy~is** .ofthe statutory factors _is re_quired to deJermiqe_**th~** appropriate sanction within the ranges established under the Matrix. This analysis is performed in subparagraphs 8.a.-e. After determining the final aggregate weight ofthe case under subparagraphs 8.a.-e., that weight is applied to the appropriate Matrix range to identify the recommended sanction amount for each ofthe relevant violation groups and for the case as a whole. Although the notice ofproposed civil penalty may cite numerous violations ofa particularpart or subpart ofthe HMR, unless upward departure isjustified, 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 ofentity andthe nature ofthe 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 maximumportion ofthe sanction range for each relevant violation group. The recommended civil penalty at this stage is the sum ofthe sanctions for each ofthe applicable violation groups. A sanction should not be assessed for a violation group ifthere have been no violations ofthatpart or subpart ofthe HMR. The sanction amount for each violation group need notbe identical but ordinarily is within the portion ofthe particular sanction range thatrepresents the overall weight ofthe case. (3) Departure from the Matrix ranges. The ranges ofpenalties specified in the Matrix (e.g., $250-$550) are intended to coverthe majority ofcases involving violations ofthe HMR. The facts and circumstances ofa particular case, however, mayjustify either an upward or downward departure from the specified Matrix ranges. This sanction guidance anticipates departure from the specified Matrixranges whenjustified. A case involving violations in which the nature, circumstances, extent, and gravity ofthe incident are particularly severe oregregious, mayjustify upward departure from the specified ranges. Ifthe investigating agent believes, based upon the facts ofa case, that a penalty should exceed the specified Matrix ranges, the agent should consult with legal counsel before further processing ofthe EIR. (However, in no case may the civilpenalty perviolation exceed the maximum allowed by law.) Conversely, the investigating agent may believe that mitigating factorsjustify a downward departure from the
C-910/01/07 2150.38
Matrix range. Consultation with legal counsel is not necessary in the case ofa recommended penalty that is less than thatprovided in the Matrix. (However, in no case may the civil penalty perviolation be less than the minimum allowed by law.) In either situation, however, the agent is to provide a detailed explanation ofthe basis for the decision to go outside the ranges. (4) Violations ofpart 175 regulations, which establishparticular requirementsfor air carriers and other aircraft operators, are contained in a separate matrix. However, such operators often offer hazmat for airtransportation a:s well as accept and transport it. As such, the operator maybe liable for violations as a business entity within the main Matrix as well as for the specific part 175 violations.


### g. Impact_of**Qth~r** 

### Statutory**Factpr~·-_Ibe,F_ederal** haz::u:dQl.JS_ml;lterial transportation law also requires consideration ofa violator's ability to pay a civil penalty, the impact ofthe civil penalty onthe violator's ability to continue to do business, and other matters thatjustice requires. Consideration ofthese factors may result in adjustment ofthe recommended civil penalty calculated in subparagraph 8.f. In situations where the agent or attorney is in possession ofmitigating information, such an inability to pay the recommended civil penalty or corrective action taken, reduction ofthe recommended penalty may be appropriate. Mitigating information should be sufficiently reliable, uncontroverted, and documented in orderto support reduction of the recommended civil penalty priorto issuing the notice ofproposed civil penalty. (1) Ability to pay or continue in business. Historically, the FAA has considered these factors after the issuance ofthe notice ofproposed civil penalty due to the absence ofreliable financial information on which to base a reduction priorto the issuance ofa notice. This Sanction Guidance recommends that the special agent make efforts to obtain reliable information regarding the violator's size and financial condition for reviewpriorto the issuance ofa 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 particularrespondent, that financial circumstances change, and that information may be provided after the issuance ofthe notice that may warrant further consideration ofa respondent's ability to pay.

• The investigating agent will attempt to include financial information as an exhibit in the EIR. Itis anticipated that this information, ifavailable, will be obtained from reliable fmancial 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 ofa respondent with respect to its ability to pay a proposed civil penalty. The investigating agent's statement should encompass areas like the number ofemployees, gross revenues, and nature of business oftlie 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-1010/01/07 2150.38
determine ifmore current information exists concerning the financial condition ofa respondent and ifthat information substantially differs from the information available at the time of preparation ofthe EIR. Ifthere 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 priorto issuance ofthe notice ofproposed civil penalty. This is a preliminary consideration ofa company's ability to pay. As such, pre-notice adjustment ofa recommended civil penalty does not preclude further consideration ofa respondent's financial claims after issuance ofthe notice. (2) Corrective Action.

• The most common other matterthat 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 ofpenalty reduction are the extent and timing ofthe corrective action. In other words, mitigation is determined onthe basis ofhow much corrective action was taken and how quickly the action was taken. Systemic change intended to prevent future violations should be given greater consideration. Similarly, corrective action that commences upon the violator's first learning of the violations ordinarily is given greater credit than corrective action that commences only after the violator receives the letter ofinvestigation or the notice ofproposed civil penalty. Mitigation ofa recommended civil penalty based upon corrective action should be referenced in the Notice ofProposed Civil Penalty so thatthe respondent is onnotice that credit already has been given for such action. (2) Status ofviolator as a small business entity or concern. See subparagraphs 5.a.-b. above.

C-1110/01/07

OFFENSE CATEGORIES I. Declared Shi(!ment I. Shipping Papers 2. Labels 3. Markings 4. Packaging 5. Training 6. Emerg. Response 7. Release into Environ. 8. Other II. Undeclared Shi(!ment Within Hazmat Quanti!!Limitations I. Shipping Papers 2. Labels 3. Markings 4. Packaging 5. Training 6. Emerg. Response 7. Release into Environ. 8. Other III. Undeclared Shi(!ment Hazmat Forbidden on1 orexceeds g!Y limits for: Passenger Aircraft I. Shipping Papers 2. Labels 3. Markings 4. Packaging 5. Training 6. Emerg. Response 7. Release into Environ. 8. Other IV. Undeclared Shi(!ment Forbidden on2 or exceeds g!Y limits for1 All Aircraft I. Shipping Papers 2. Labels 3. Markings 4. Packaging 5. Training 6. Emerg. Response 7. Release into Environ. 8. Other V. Intentional or 

### MATRIX 

### & DEFINITIONS (Figure C-1)

C. Business Entity that uses or handles A. Individual* B. Business Entity hazrnat in the course ofbusiness 250-550 250-1,100 500-2,200 250-550 250-l,IOO 500-2,200 250-550 250-1,100 500-2,200 250-550**~5Q~l,IQO** 500-2,290



## ---------- 450-1,100 500-2,200 250-550 250-1,100 500-2,200 250-550 250-1,100 500-2,200 250-550 250-l,IOO 500-2,200

250-1,100 I,500-8,200 2,500-11,000 250-l,IOO 1,500-8,200 2,500-I1,000 250-1,100 1,500-8,200 2,500-11,000 250-1,IOO 1,500-8,200 2,500-11,000



## ------------- I,500-8,200 2,500-11,000 250-I,100 1,500-8,200 2,500-11,000 250-1,100 1,500-8,200 2,500-11,000 250-1,IOO 1,500-8,200 2,500-11,000

500-5,500 5,000-16,200 7,500-22,000 500-5,500 5,000-16,200 7,500-22,000 500-5,500 5,000-16,200 7,500-22,000 500-5,500 5,000-16,200 7,500-22,000



### ---------- 5,000-I6,200 7,500-22,000 500-5,500 5!000-16,200 7,500-22,000 500-5,500 5,000-I6,200 7,500-22,000 500-5,500 5,000-16,200 7,500-22,000

500-32,500 7,500-32,500 10,000-32,500. 500-32,500 7,500-32,500 10,000-32,500 500-32,500 7,500-32,500 10,000-32,500 500-32,500 7,500-32,500 I0,000-32,500

__..,_______ 7,500-32,500 10,000-32,500 500-32,500 7,500-32,500 10,000-32,500 500-32,500 7,500-32,500 I0,000-32,500 500-32,500 7,500-32,500 I0,000-32,500

CONSULT CONSULT CONSULT C-12 2150.38

D. Business Entity that regularly offers, accepts, or transports hazmat I,000-5,500 1,000-5,500 1,000-5,500

- I,000-5,500

1,000-5,500 I,000-5,500 I,000-5,500 I,000-5 500

5,000-13,000 5,000-13,000 5,000-13,000 5,000-13,000 5,000-13,000 5,000-13,000 5,000-13,000 5,000-13,000

10,000-32,500 10,000-32,500 10,000-32,500 10,000-32,500 10,000-32,500 10,000-32,500 10,000-32,500 I0,000-32,500

15,000-32,500 15,000-32,500 15,000-32,500 15,000-32,500 I5,000-32,500 15,000-32,500 I5,000-32,500 15,000-32,500

CONSULT10/01/07 2150.38

DeliberateViolationl or LEGAL- Up to LEGAL- Up to LEGAL- Up to LEGAL- Up to other**si~ificant** 50,000 per offense 50,000 per offense 50,000 per offense 50,000 per offense aggravation category may be category may be category may be category may be assessed assessed. assessed assessed VI. Violation results in 

### CONSULT CONSULT CONSULT CONSULT deathl serious illnessl LEGAL- Up to LEGAL- Up to LEGAL- Up to LEGAL- Up to severe injual or 100,000 per 100,000 per 100,000 peroffense 100,000 may be substantial destruction offense category offense category category may be assessed oforooertv may be assessed may be assessed 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) t() $1,000.

E. Group I 

### & II 

### F. Group III 

### & IV 

### AIR CARRIERAND OTHERAIRCRAFT Air Carriers and Air Carriers and 

### OPERATORVIOLATIONS OtherAircraft Other Aircraft Operators Operators Failure to comply with Parts 171, 172, or 173 Use main Matrix. Use main Matrix. requirements ofthe HMR as an offeror ofhazinat. Improper acceptance ofhazmat for air transportation. (i.e., quantity, labeling, marking, packaging, and 5,000-32,500 2,500-16,200 shipping papers)

See 49 C.F.R. §§ 175.30(a)(l)- (4) Failure to inspect hazmat shipmentproperly. 10,000-32,500 5,000-16,200

See 49 C.F.R. §§ 175.30(b), (c), (d), (e) Improper storage/securing ofhazmat aboard aircraft. 10,000-32,500 5,000-16,200 Failure to provide hazmattraining, maintain records of 10,000-32,500 5,000-16,200 training, ormeet minimum requirements for hazmat training (49 C.P.R.). Using untrained/improperly trained hazmatpersonnel, 10,000-32,500 5,000-16,200 failure to retain hazmat training records (49 C.F.R.) Failure to notify FAAproperly ofincident/discrepancies 5,000-16,200 1,000-5,500 in hazmat shipment. Failure to provide notice to the pilot-in-command. 5,000-16,200 1,000-5,500 Other Part 175 violations. 5,000-16,200 1,000-5,500 Intentional, deliberate, or other significantly aggravated CONSULT CONSULTLEGAL violation. LEGAL- Up to

- Up to 50,000 per 50,000 per offense category offense category may be assessed may be assessed Violation results in death, serious illness, severe injury, or CONSULT CONSULTLEGAL substantial destruction ofproperty. LEGAL- Upto -Up to 100,000 per 100,000 per offense category offense category may be assessed may be assessed
C-1310/01/07 2150.38
9. Definitions: Note thatthese definitions are only for the purpose ofapplying the sanction guidance in this appendix.

a. Air Carrier and OtherAircraft Operator Groups (1, II, 

### ill, IV) -Air carriers and other aircraft operators are divided into two categories for purposes ofdetermining an appropriate sanction. These categories trackthe air carrier groups established in Appendix B this order. Forpurposes ofhazmat sanction guidance, the FAA also includes other aircraft operators operating in commerce that are ofsimilar size, e.g., part 129 Foreign Air Carriers, part 125 Operators, and part 91 Operators. (1) Group I is comprised ofair carriers with annual operating revenue of$100,000,000 ormore. Other aircraft operatprs with_apnual__oper;:tting_revenue of$100,000,000 or more are included in Group I for hazmat sanction guidance purposes. (2) Group II is comprised ofair carriers and other commercial operators thathave an annual operating revenue ofless than $100,000,000, and have 50 or more pilots and operate 25 ormore aircraft. Other aircraft operators ofthe same size are included in Group II for hazmat sanction guidance purposes. (3) Group III is comprised ofair carriers and other aircraft operators that do notmeet the criteria for Group II, that is, theyhave only 6 to 49 pilots, or only 6 to 24 aircraft. Other aircraft operators ofthe same size are included in Group III for hazmat sanction guidance purposes. (4) Group IV is comprised ofall other air carriers and commercial operators not meeting the criteria for Groups I, II, or III. Other aircraft operators ofthe sanie 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 ofcommercial entity. An individual who offers a hazmat shipment in airtransportation in the course ofhis 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 ofan individual (as defined below).

c. Business Entity that Regularly Offers, Accepts, or Transports Hazardous Materials in the Course ofIts Business. A business entity that offers hazmat with some anticipated frequency, orpurports 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 ofthe hazmat is infrequent or limited. This category includes manufacturer or distributor ofhazmat and a freight forwarder.
d. Business Entity that Uses, Handles Hazmat in the Course oflts 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. Forexample, a manufacturer ofa nonhazmat product that uses hazmat in the manufacturing process could fall into this category. It mustbe established thatthe company ordinarily does not offer the hazmat itutilizes 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 2150.38
with hazmat. The described business eritity receives the subject hazardous material in transportation and uses it in its business; thus, it is clearly on notice ofthe hazardous nature of the material and the regulatory requirements to whichthe hazmat is subject.

e. Declared Shipment. Forpurposes ofthis sanction guidance, a declared shipment has at least one ofthe following communicative indicia---markings, labels, and/or shippingpapers that meet the comml,lnicative requirements ofthe HMR. A package thathas shippingpapers that declare the contents as hazardous material, but is otherwise not marked or labeled, falls into this category. Forpurposes ofthis definition, a shipping paper is.any documentto which handlers refer in the normal course oftransportation and that complies with one or more ofthe communicative requirements in the HMRfor shipping papers. Similarly, a properly marked and labeledpackage**tha~** lacks shippingpai>er:.s**~lso** falls into this_categocy

..An example ofa shipment thatwould notmeetthis definition is one where the offeror states that the shipment contains hazmat, but only inpaperwork to which the handlers do not refer in the normal course oftransportation. 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 ofhazardous material in his orherpersonal capacity, without any business purpose and not as part ofa commercial enterprise. h. Intentional orDeliberateViolation -Aviolation falls into this category when the offeror, acceptor, air carrier, or aircraft operator has knowledge ofthe requirements ofthe HMR, and willfully circumvents or attempts to circumventthose requirements. For example, an offeror who places a properly marked and labeled hazmat shipment along with properly completed shipping papers, into an overpack marked asprintedmaterial, has committed an intentional or deliberate violation. i. Undeclared Shipment- Ifa shipment does not meet the definition ofdeclaredshipment, it is an undeclared shipment. j. Undeclared ShipmentHazmat Exceeds Quantity Limits for All Aircraft- An undeclared shipmentthat is offered for transportation on ortransported on any aircraft andthe quantity ofhazardous material exceeds the limit, perpackage, for transportation on cargo aircraft, as established in the 49 C.F.R. 

### § 172.101 Table. k. Undeclared ShipmentHazmatExceeds Quantity Limits for PassengerAircraft- An undeclared shipmentthat is offered for transportation on ortransported on a passenger aircraft, and the quantity ofhazardous material exceeds the limitation, perpackage, for transportation on passenger aircraft (butnot for transportation on cargo aircraft), as established in the 49 C.F.R. 

### § 172.101 Table. I. Undeclared ShipmentHazmat 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 airtransportation on cargo aircraft, as established in the 49 C.P.R. 

### § 172.101 Table. 

### C-1510/01/07 2150.38

m. Undeclared ShipmentHazmatForbidden on PassengerAircraft- An undeclared shipmentthat is offered for transportation on ortransported on a passenger aircraft, and the hazardous material is forbidden in air transportation onpassenger aircraft (but not in air transportation on cargo aircraft), as established in the 49 C.F.R. 

### § 172.101 Table.

n. Undeclared ShipmentWithin Hazmat Quantity Limitations. (1) Ifthe undeclared shipment is offered for transportation on ortransported on a passenger aircraft, the quantity ofhazardous material must be within the limitation, perpackage, for transportation on passenger aircraft, as established in the 49 C.F.R. 

### § 172.101 Table. (2) Ifthe undeclared shipment is offered for transportation on a cargo aircraft, but not transported, the quantity ofhazardous material must be within the limitation, perpackage, for

· transportation on passenger aircraft, as established in the 49 C.F.R. 

### § 172.101 Table. (3) Ifthe undeclared shipment is offered for transportation on and transported on a cargo aircraft, the quantity ofhazardous material must be within the limitation, perpackage, for transportation on cargo aircraft, as established in the 49 C.F.R. 

### § 172.101 Table. All other undeclared shipments fit within the defmitions for UndeclaredShipmentHazmat Exceeds QuantityLimits for

...Aircraft, or UndeclaredShipmentHazmatForbidden on...Aircrqft, see above.

C-1610/01/07



### CATEGORY "A" {Maximum Weight} RISK CATEGORIES (Figure C-2) 2150.38

Category "A" materials are materials that when released in the confines ofan 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 Class 2 Class 3 Class4 Explosives: Division 1.1, 1.2, 1.3, Compressed Gases All 2.1, 2.2 with Subsidiary Risk 5.1 and All 2.3 PIH Zones A-D Flammable Liquids PG I, II, and (PIH) 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 threatto the safety ofa flight, but can cause death or injuryto persons due to unintended releases in aircraft cabin areas, and potential damage to aircraft structures over a longer period oftime due to undiscovered releases on aircraftstructural components. Class 1 Class 3 Class4
Class 5 Class 6 Class 7 Class 8 ·Division 1.4, 1.5, 1.6, All Compatibility Groups PG Ill Flammable Liquids Division 4.1 Flammable Solids PG II, Ill Division 4.2 Spontaneously Combustible Materials PG II, Ill Division 4.3 Dangerous When Wet PG II, Ill Division 5.1 Oxidizing Liquids or Solids PG Ill Division 5.2 Organic Peroxides (Type E,F,G) Division 6.1 Toxic/Poisonous Materials PG I, II (NON- PIH) Division 6.2 Infectious Substances Radioactive Materials, yellow label II, white Iabeii Liquids PG II, Ill Solids PG I, II, Ill 

### Category "C" {Minimum Weight} The materials listed in Category "C" are materials that presentthe least amount of risk to the transportation system. Class 2 Class 6 Class 7 Class 9 2.2 Nonflammable Gas Division 6.1 Toxic/Poisonous Materials PG Ill All other RAM (LSA, LTD QTY, Instruments, and Articles) Miscellaneous Dangerous Goods {ORM-D and Consumer Commodity}

NOTE: This guidance is not intended to replace the experiencedjudgment of a special agentwho 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-1710/01/07 2150.38 Appendix D. Selected Statutes

1. 49 U.S.C. Subtitle VII, PartA-Air Commerce and Safety.

a. GeneralAuthority. 49 U.S.C. 

### § 40113(a) provides that the Administrator ofthe Federal Aviation Administration with respect to aviation safety duties and powers designated to be carried out bythe Administrator may take action the Administrator considers necessary to carry out 49 U.S.C. subtitle VII, partA, including conducting investigations, prescribing regulations, standards, and procedures, and issuing orders. b. Whistleblower Protection Program. 49 U.S.C. 

### § 42121(a) provides that no air carrier or contractor or s-ubcontractor ofan air**~carrier** may discharge an employee or otherw'ise discriminate against an employee with respect to compensation, terms, conditions, orprivileges ofemployment because the employee (or any person acting pursuantto a request ofthe employee--(1) provided, caused to be provided, or is aboutto provide (with any knowledge of the employer) or cause to be provided to the employer orfederal government information relating to any violation or alleged violation ofany order, regulation, or standard ofthe FAA or any otherprovision offederal law relating to air carrier safety under 49 U.S.C. subtitle VII or any other federal law; (2) has filed, causedto be filed, or is about to file (with any knowledge of the employer) or cause to be filed aproceeding relating to any violation or alleged violation of any order, regulation, or standards ofthe FAA or any otherprovision offederal law relating to air carrier safety under 49 U.S.C. subtitle VII or any other federal law; (3) testified or is about to testify in such a proceeding; or (4) assisted orparticipated or is about to assist orparticipate in such a proceeding.

c. Registration and Recordation ofAircraft. (1) Operation ofaircraft. 49 U.S.C. 

### § 44101(a) provides that except as provided in 49 U.S.C. § 44101(b) a person may operate an aircraft only whenthe aircraft is registered under 49 U.S.C. § 44103. 49 U.S.C. § 44101(b) provides that a person may operate an aircraft in the United States that is notregistered when authorized under 49 U.S.C. 

### § 40103(d) or49 U.S.C. 

### § 41703, when it is an aircraft ofthe national defense forces ofthe United states and is identified in a way satisfactory to the Administrator ofthe Federal Aviation Administration, and for a reasonable period oftime after a transfer ofownership, underregulations prescribed by the Administrator. (2) Registration requirements. 49 U.S.C. 

### § 44102(a) provides that an aircraft may be registered under 49 U.S.C. 

### § 44103 only when the aircraft is: 1) not registered under the laws of a foreign country and is owned by a citizen ofthe United States; an individual citizen ofa foreign country lawfully admitted for permanent residence in the United States; or a corporation not a citizen ofthe United States when the corporation is organized and doing business under the laws ofthe United States or a State, and the aircraft is based and primarily used in the United States; or 2) an aircraft ofthe United States Government; or a State, the District ofColumbia, a territory orpossession ofthe United States, or a political subdivision ofa State, territory, or possession.

D-1