UNITED STATES DEPARTMENT OF TRANSPORTATION , 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

RECEIVED 

IN THE MATTER OF 

APR 1 0 2013 

HEARING DOCKET 

JOHN CROFT 

FAA DOCKET NO. 2012-AWA-CPP-13423 

(Civil. Penalty. Action) 

DMS NO. FAA-2012-0903 

COMPLAINANT'S MOTION FOR A DECISION AS TO SANCTION··-

On February 19, 2013, the Complainant moved for an order deeming admitted each 

allegation in the complaint based on Respondent's failure to file an answer as required, and 

moved for a decision regarding the violations~ Attached to this motion were affidavits and 

I ) 

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

documents showing, in essence, that Respondent had admitted the underlying facts in his prior 

communications with the Agency. Respondent was served by mail, so he had 15 days in which 

to respond. He did not respond. By Order served on March 8, 2013, the law judge ordered 

Respondent to file an answer by March 22, 2013, and to show cause why the requested relief 

should not be granted. Respondent did not respond in any manner. On April2, 2013, the law 

judge entered an order granting the Complainant's motions, and limiting the hearing to the 

consideration of the appropriate sanction. 

The Complainant now moves, pursuant to§ 13.218(f)(5) of the Rules of Practice, for a 

decision as to sanction. One of the allegations in the complaint that has now been deemed 

admitted is IV.2, which states, "Under the facts and circumstances of this case, a civil penalty of 

$12,000 is appropriate." While the Complainant was reluctant at the time of its prior motion to 

1 
seek a decision as to sanction based solely on Respondent's failure to file an answer, his failure 

to respond in any manner.to the law judge's show cause order changes things. He was 

specifically advised in the show cause order that his failure to response could result in the 

dismissal of his request for a hearing and/or a default judgment in the full amount requested. By 

his silence he has not raised any affirmative defense, such as the inability of pay, or shown that 

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 Will even attend. 

Unless Respondent provides a timely, meaningful response to this motion, Complainant 

requests, based on the deemed admission ofiV.2 of the complaint, that the law judge enter an 

Order Assessing Civil Penalty in the amount of$12,000. 

Alternatively, based on the attached Second Declaration of Jeffrey Deitz, Complaint requests 

that the law judge flhd that a .civil penalty of $12,000 is appropriate in this matter, and enter an 

Order Assessing Civil Penalty in the 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 and Partners, FAA Order No. 2010-7 (June 15, 2010). Absent a fmding that the 

Agency's calculation was unreasonable, the Agency is entitled to a decision assessing that 

amount. 

Respectfully submitted this the 4th day of April2013. 

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 on this date I have served a copy of the Complainant's Motion For a 

Decision as t~ Sanction by facsimile transmission and by postage-prepaid, certified mail, return 

receipt requested, as indicated to the following: 

The Honorable Richard C. Goodwin 

Office of Hearings, M-20; 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E. 

East Building Ground Floor, Room E12-320 

Washington, DC 20590 

FAX: (202) 366-7536 

. John Croft (via regular and certified mail.only) 

134 Lincoln Street 

Sitka, AK 99835 

I further certify that on this date I have served the original of the Complainant's Motion For a 

Decision as to Sanction by postage-prepaid, certified mail, return receipt requested, addressed as 

. follows: · 

Federal Aviation Administration 

800 Independence A venue, S. W. 

Washington, DC 20591 

Attention: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building-Suite 2Wl 000 

DATED: ~ 4, 2t5JJ3 

Federal Aviation Administration 

Office of Regional Counsel 

222 West 7th Avenue, Box 14, AAL-7 

Anchorage, Alaska 99 513-7 5 87 

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) 

DMS NO. FAA-2012-0903 

SECOND DECLARATION OF JEFFREY DEITZ 

I, JEFFREY DEITZ, declare as follows: 

1. I am a special agent and dangerous goods specialist in the FAA's Security and Hazardous 

Materials Office in Anchorage, Alaska. I have worked for the FAA in hazardous materials 

enforcement since 1997, and I am the agent who wrote the enforcement investigative report in 

this case. 

2. As part of my official duties regarding this case, I participated in the process of determining 

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 of this document. To calculate a penalty under the Sanction 

Guidance Table, the first step is to determine the final aggregate weight of the case. This 

determination begins with a determination of the risk category of the material offered, and then a 

consideration of the quantity offered and whether any damage was caused. These are followed 

by consideration of the violator's degree of culpability and other unique factors that increase or 

1 
decrease the risk the shipment posed. The next step is to utilize the matrix to determine the 

sanction amount within the appropriate range for each violation group. The final step is to take 

the total calculated under the second step and then consider the violator's ability to pay as well as 

continue to do business, and any other matters that justice requires. 

3. The five flare cartridges are in hazard class 1.4G (Explosive). They do not actually present a 

significant explosive hazard, but the "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 on passenger 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 of cartridges, the ammunition must be boxed to prevent accidental striking of the primers. 

These were not boxed, but placed in a soft bag which offered no protection. 

4. Croft was supposed to have sent the bag to Sitka on a barge. When Croft realized he had 

forgotten to pick up the bag, he contacted the police who picked up the bag, and Wings of 

Alaska, who got the bag from the police and transported it by aircraft to Juneau where it was 

then offered to Alaska Airlines 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 of Moderate based on the small 

number of cartridges and the fact Croft had no prior violation history. Using the Matrix (Figure 

C-1 ), Croft is an individual so the correct column is A. The shipment was undeclared and 

included items forbidden on passenger aircraft, so the correct row is III. The range for each 

category of violations under liLA is 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 of violations: shipping papers, labeling, marking, and emergency 

response. Four categories times $3000 equals $12,000. Croft has not provided information 

regarding his ability to pay, or anything else that should be considered in determining the 

sanction. Hence, the Agency selected $12,000 as the appropriate sanction in this case. 

I declare under penalty of perjury that the foregoing is true and correct. 

Dated this 4th day of Apri12013. 

3 
10/01/07 

1. Background. 

Appendix C. Sanction Guidance 

Hazardous Materials Enforcement 

2150.38 

a. Legislation. Congress determined that the unregulated transpo$tion 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 HMT A required more severe action, and 

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

101-615, 1990 U.S. ·cod~ Congres_s. ~Admin_. News 1_Q4 Stat. 4605. The primary effect ofthis 

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 

I 04-134, April 26, 1996, provides a mechanism for adjustments for monetary civil penalties fot 

inflation in order to maintain the deterrent effect ofmonetary 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 adjuste.d 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 ofhazmat by air. 49 C.F.R. § 1.470). 

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10/01/07 2150.38 

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 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 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 HMR. In determining the sanction to 

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

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

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

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

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

Guidance Matrix. The statutory factors are 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 

C-2 
10/01/07 2150.38 

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

the ranges should be explained in detail. 

4. Part 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 ag~n~_rn_ust deterp1ine wh~tht?r the allegeq_ vLolator 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 OneAbbreviations 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 SBREF A. 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 ofthe 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 ofthe other reasons for exclusion). Accordingly, the FAA will usually reduce 

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10/01/07 2150.38 

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 factore_dintothe various ranges ~ithin the SancJionQuidance 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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10/01/07 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. 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 ofthe 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 a yes 

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

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 ofthe 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 

C-5 
10/01/07 2150.38 

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

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

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

Concerning the Shipment): 

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

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

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

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

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

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

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

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

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

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

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

transportation? 

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

amount? If yes, 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 ofhazardous 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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10/01/07 2150.38 

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 derivedfrom 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 ~arm may aggravate the nature, circwnstances, extf!nt, and gravity 

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

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

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

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

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

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

of the violator. 

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

Maximum weight. 

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

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

of culpability will ordinarily be imputed to it. 

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

consider a Minimum or Moderate weight. 

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

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

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

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

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

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

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

generally is not accorded mitigation under this weightingfactor. (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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10/01/07 2150.38 

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

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

Material Safety Data Sheet (MSDS) would be mitigating. 

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

Moderate or Maximum weight. 

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

violation pursuant to a legal enforcement qction. 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 

iess weight, unless a continuing pattern oj vioiation exists. - . . 

d. Other Factors. 

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

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

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

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

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

scrutinized by legal counsel. 

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

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

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

an increased risk. 

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

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

under the small quantity exception of 49 C.F.R. § 173.4 may present a mitigatingfactor 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 fmal aggregate weight. The final aggregate weight should 

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

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

be explained in this regard. 

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10/01/07 2150.38. 

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 analy~is .of the 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 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 ifthere 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 further processing of the EIR. (However, in no 

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

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

C-9 
10/01/07 2150.38 

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 a:s 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 Qth~r Statutory Factpr~·-_Ibe,F_ederal haz::u:dQl.JS_ ml;lterial 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 ofthe 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 

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 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 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-10 
10/01/07 2150.38 

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 action 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 
10/01/07 

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 

or exceeds 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 of business 

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 I 0,000-32,500 

500-32,500 7,500-32,500 I 0,000-32,500 

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 

CONSULT 
10/01/07 2150.38 

Deliberate Violationl 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 per offense 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 CARRIER AND OTHER AIRCRAFT Air Carriers and Air Carriers and 

OPERATOR VIOLATIONS Other Aircraft Other Aircraft 

Operators Operators 

Failure to comply with Parts 171, 172, or 173 Use main Matrix. Use main Matrix. 

requirements of the HMR as an offeror of hazinat. 

Improper acceptance of hazmat 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 shipment properly. 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 hazmat training, maintain records of 10,000-32,500 5,000-16,200 

training, or meet minimum requirements for hazmat 

training (49 C.P.R.). 

Using untrained/improperly trained hazmat personnel, 10,000-32,500 5,000-16,200 

failure to retain hazmat training records (49 C.F.R.) 

Failure to notify FAA properly of incident/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 CONSULT LEGAL 

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 CONSULT LEGAL 

substantial destruction of property. LEGAL- Upto -Up to 100,000 per 

100,000 per offense category 

offense category may be assessed 

may be assessed 

C-13 
10/01/07 2150.38 

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 (1, II, ill, 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 ofhazmat 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 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 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 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 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 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. For example, a manufacturer of a nonhazmat product that uses hazmat in the manufacturing process could fall into this category. It 

must be established that the company ordinarily does not offer the hazmat it utilizes for 

transportation, and the shipment in this instance represents an isolated incident. This type of 

business is held to a higher standard than the business entity that has no regular involvement 

C-14 
·. 

10/01/07 2150.38 

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 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 comml,lnicative 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 tha~ lacks shipping pai>er:.s ~lso falls into this_categocy .. 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 as 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.P.R. § 172.101 Table. 

C-15 
10/01/07 2150.38 

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) Ifthe undeclared shipment is offered for transportation on and transported on a cargo 

aircraft, the quantity of hazardous material must be within the limitation, per package, for 

transportation on cargo aircraft, as established in the 49 C.F .R. § 172.101 Table. 

All other undeclared shipments fit within the defmitions for Undeclared Shipment Hazmat 

Exceeds Quantity Limits for ... Aircraft, or Undeclared Shipment Hazmat Forbidden 

on ... Aircrqft, see above. 

C-16 
10/01/07 

CATEGORY "A" 

{Maximum Weight} 

RISK CATEGORIES 

(Figure C-2) 

2150.38 

Category "A" materials are materials that when released in the confines of an aircraft can potentially have a catastrophic 

effect on an aircraft's ability to continue safe flight, resulting in a crash or emergency landing causing injury or death to 

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

Class 1 

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 threat to the safety of a flight, but can 

cause death or injury to persons due to unintended releases in aircraft cabin areas, and potential damage to aircraft 

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

Class 1 

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 present the 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 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 
10/01/07 2150.38 

Appendix D. Selected Statutes 

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

a. General Authority. 49 U.S.C. § 40113(a) provides that the Administrator of the Federal 

Aviation Administration with respect to aviation safety duties and powers designated to be 

carried out by the Administrator may take action the Administrator considers necessary to carry 

out 49 U.S.C. subtitle VII, part A, 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 of an air ~carrier may discharge an employee or otherw'ise 

discriminate against an employee with respect to compensation, terms, conditions, or privileges 

of employment because the employee (or any person acting pursuant to a request of the 

employee--(1) provided, caused to be provided, or is about to provide (with any knowledge of 

the employer) or cause to be provided to the employer or federal government information 

relating to any violation or alleged violation of any order, regulation, or standard of the FAA or 

any other provision of federal law relating to air carrier safety under 49 U.S.C. subtitle VII or 

any other federal law; (2) has filed, caused to be filed, or is about to file (with any knowledge of 

the employer) or cause to be filed a proceeding relating to any violation or alleged violation of 

any order, regulation, or standards of the FAA or any other provision of federal 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 or participated or is about to assist or participate in 

such a proceeding. 

c. Registration and Recordation of Aircraft. 

(1) Operation of aircraft. 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 when the 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 not registered when authorized under 49 U.S.C. § 40103(d) or 49 U.S.C. § 

41703, when it is an aircraft of the national defense forces of the United states and is identified in 

a way satisfactory to the Administrator of the Federal Aviation Administration, and for a 

reasonable period oftime after a transfer of ownership, under regulations 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 of the United States; an individual citizen of a 

foreign country lawfully admitted for permanent residence in the United States; or a corporation 

not a citizen of the United States when the corporation is organized and doing business under the 

laws of the 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 of Columbia, a 

territory or possession of the United States, or a political subdivision of a State, territory, or 

possession. 

D-1