I. 

II. 

SERVED: AprillO, 2015 

IN THE MATTER OF 

MARTINAIRE AVIATION, LLC 

FAA DOCKET NO. [TO BE ASSIGNED] 

(Civil Penalty Action) 

FDMS NO. FAA~ 2013-0040 

REC \VED 

APR 1 3 2015 

HEARING DOCKET 

INITIAL DECISION OF ADMINISTRATIVE LAW JUDGE 

Key terms 

AMR 

FAA 

Buchanan 

DFW 

HM 

HMR 

Klimas 

Martinaire 

NO PIC 

NO PCP 

NTSB 

GOM 

PHMSA 

PIC 

Introductory Comment 

American Airlines 

Federal Aviation Administration, Complainant 

Bryan Edward Buchanan, HMR safety Manager, Ft. Worth, TX 

Dallas- Ft. Worth International Airport 

Hazardous Materials 

Hazardous Materials Regulations 

Paul Daniel Klimas 

Martinaire Aviation, LLC, Respondent 

Notification to Pilot-In-Command 

(Respondent uses NOPC) 1 

Notice of Proposed Civil Penalty 

National Transportation Safety Board 

General Operations Manual 

Pipeline and Hazardous Materials Safety Administration 

Pilot in Command 

On January 15,2013, the Federal Aviation Administration (hereinafter "FAA") filed a 

Complainant against Martinaire Aviation LLC, (hereinafter "Martinaire") seeking a civil penalty 

of $206, 550.00 for violation of the Federal hazardous materials transportation law and 

hazardous materials regulations (hereinafter "HMR''). 

On July 8, 2013, we found that Martinaire violated 49 C.F.R. §§ 175.33(a)(/), 

175.33(a)(/)(i), and 175.33(a)(7) asserted in the FAA's Complaint. 

The matter outstanding is the assessment of penalty. We find the FAA did not make a 

prima facie case with respect to the amount of penalty requested. We will reduce the penalty. 

1 Tr. p. 70, 11. 14-17. 

1 
III. Procedural History 

By Notice of Proposed Civil Penalty dated May 30, 2012 and by Final Notice of 

Proposed Civil Penalty dated January 7, 2013, Martinaire was advised that the FAA proposed to 

assess a civil penalty in the amount of $206,550.00. 

Martinaire filed a Request for Hearing dated January 9, 20 13. 

On January 15,2013, the FAA filed a Complaint alleging that Martinaire violated 

the following Department of Transportation Hazardous Materials Regulations (Title 49 of 

the Code of Federal Regulations): 

a. Section 175.33(a) (1) (49 C.FR. § 175.33(a) (1) in that it accepted 

hazardous material aboard an aircraft for transportation by air and failed to 

provide the pilot-in-command the proper shipping name, hazard class and 

identification number of the hazardous material aboard the aircraft. 

b. Section 175.33 (a) (1) (i) (49 CFR. § 175.33 (a) (1) (i) in that it 

accepted hazardous material aboard an aircraft for transportation by air and failed 

to provide the pilot-in-command the proper shipping name, hazard class, 

identification number and any additional description requirements provided in§§ 

172.202, and 172.203 ofthe hazardous material aboard the aircraft. 

c. Section 175.33(a) (7) (49 C. FR.§ 175.33(a) (7) in that it accepted 

hazardous material aboard an aircraft for transportation by air and failed to 

provide the pilot-in-command the date of the flight. 

On June 17, 2013, the FAA filed a Motion for Decision. In Martinaire' s Answer thereto, 

Martinaire admitted each of the facts underlying the allegations in the Complaint. On July 8, 

2013, we found: 

... Martinaire Aviation, LLC violated 49 CFR. §§ 175.33(a)(l), 

175.33(a)(l)(i), and 175.33(a)(7) asserted in Complainant's (FAA's) 

Complaint. 

By contrast, the issue of the appropriate civil penalty is genuinely 

controverted. 

Martinaire has raised several valid defenses to Complainant's arguments in 

favor of its proposed penalty amount. As such, that portion of 

Complainant's Motion for Decision is hereby DENIED. 

This proceeding will be limited to the issue of the appropriate civil 

penalty. 

A hearing was held June 18, 19 and 20,2014, inclusive, in, Dallas, TX 75202, on the 

issue of penalty. 

2 
The FAA filed a Motion to Add an Exhibit dated June II, 2014. Martinaire filed an 

Objection dated June 12,2014. The FAA's Motion is denied. 

There are outstanding Motions for Limine filed by Martinaire which will be addressed 

herein. 

Post hearing briefs were filed by both parties. 

The matter is now ready for decision. 

IV. Jurisdiction 

Martinaire was a Part 135 carrier (14 C.F.R. Part 135) and subject to the rules of the 

Department of Transportation and 49 C.F.R. Part 175. 

V. Burden of Proof 

The FAA was the petitioning party with the initial burden of proof (14 C.F.R. § 13.224). 

VI. Surmnary of Facts 

A. Agency's recitation of facts 

On July 8, 2011, the Federal Aviation Administration conducted a comprehensive 

hazardous material inspection at Martinaire's' headquarters, 4553 Glenn Curtis Drive, Addison, 

Texas and at Dallas Fort Worth International Airport. As a result of the inspection, the FAA 

alleged that Martinaire routinely failed to properly complete and comply with the requirements 

for the Notification to Pilot-In-Command (hereinafter "NOPIC") for hazardous materials 

shipments 

On June 22,2011, the NOPIC for Martinaire flight number 637 (Woodward/ Oklahoma 

(WWR) to Oklahoma City, Oklahoma (OKC)) failed to include the proper shipping name and 

hazard class as required for a hazardous materials shipment classified as Compressed Gas, 

N.O.S., 2.2, UN1956 (tracking number IZ72642590100064105). 

On June 22, 2011, the NO PIC failed to provide the proper shipping name for two 

shipments properly classified as Dry Ice, 9, UN1845, PG III on tracking numbers 

1ZW27E87WT86012673 and 1ZW9688XTJT44430534. The proper shipping names provided 

by Martinaire were "Boehringer" and "JCAH", respectively. 

On June 6, 20 II, the NO PIC for Martinaire flight number 600 (Lansing, Michigan to 

Traverse, City Michigan (SIC)) failed to properly provide the correct basic hazardous materials 

shipping description for a shipment classified as Paint, 3, UNI263, PGII (tracking number 

124246510449376106). The packing group was not provided as required. The Martinaire 

3 
NOPIC described the item as Paint, 3, UN1245. UN1245 was the identification number for 

another hazardous material, methyl isobutyl ketone. Methyl isobutyl ketone was a packing 

group II flammable liquid. 

On June 6, 2011, the NOPIC for Martinaire flight nnmber 682 (Wilmington, North 

Carolina (ILM) to Raleigh-Dnrham International Airport (RDU), Raleigh, North Carolina} failed 

to include the correct identification number as required for a hazardous materials shipment 

properly classified as Denatnred Alcohol, 3, NA1987, PG II (tracking number 

IZ2102770145719267). The NOPIC described the item as Denatnred Alcohol, 3, UN1087. 

The packing group was not provided. UN I 087 was the identification number for a hazard class 

2.1 item Vinyl methyl ether, stabilized. 

On May 26, 20 II, the NO PIC for Martinaire flight number 806 (Houston, Texas (I A H) to 

San Antonio, Texas (SAT)), failed to include the correct proper shipping name and packing 

group as required for two hazardous material shipments properly classified as Petrolenm 

Distillates, N.O. S., hazard class 3, UN1268, PG III, (airway bill number 8771203122 and 

8771205111). 

For the NO PIC dated, May 26, 2011, Distillates was the proper shipping name provided 

for on the NOPIC. Air waybill number 8771203122 failed to include the correct identification 

number (listed on the NO PIC as "128"). "128" was not a recognized identification number. 

Additionally, neither the flight number nor the date was listed on the NOPIC. 

On May 24, 20 II, the NOPIC for Martinaire flight number 666 (Abilene, Texas (ABI), to 

DFW) failed to include the complete proper shipping name, hazard class and correct 

identification nnmber as required for a hazardous material shipment properly classified as 

Helium, compressed, hazard class 2. 2, UNI046 (tracking nnmber IZ049169014416999). 

For the NOPIC dated May 24, 2011, Martinaire was unable to provide the associated 

hazardous materials shipping paper due to a typographical error on the NO PIC involving the 

tracking number. The identification number listed on the NOPIC, "UN1064", was for a product 

that was forbidden for transportation on cargo aircraft, Methyl Mercatan, 2.3 (2.1) Nl 064. 

On May 19,2011, the NOPIC for Martinaire flight number 601 (Lansing, Michigan 

(LAN), to Houghton County, Michigan ( CMX)) failed to include the complete proper shipping 

name, hazard class and packing group as required for a hazardous materials shipment properly 

classified as Organophosphorus Compound, Toxic, Liquid, N.O.S. (Diphenylphosphoryl Azide), 

6.1 UN3278, PGII (tracking nnmber 129444340274593_550). The NO PIC identified the hazard 

class as "5.1". 

On May 14, 20 II, the NO PIC for Martinaire flight nnmber 700 (RDU), to New Bern, 

North Carolina (EWN)), failed to include the complete proper shipping name and correct 

identification number as required for a hazardous mftterials shipment properly classified as 

Printing Ink, hazard class 3, UNI210, (tracking nnmber (IZ337E30446005). 

4 
For the NOPIC dated May 14,2011, Martinaire was unable to provide the associated 

hazardous materials shipping paper due to a typographical error on the NO PIC involving the 

tracking number, The identification number listed, "UN1457" on the NO PIC is for a product 

classified as, Calcium peroxide, 5.1, UN1457. 

On May 13, 2011, the NO PIC for Martinaire flight number 688 (Columbia, South 

Carolina (CAE) to Hilton Head Island, South Carolina (HXD)), failed to include the complete 

proper shipping name and packing group as required for a hazardous materials shipment properly 

classified as 11 Corrosive liquid, acidic, inorganic, N.O.S., hazard class 8, UN3264, (tracking 

number IZR91 W8023572881). 

For the NOPIC dated May 13,2011, Martinaire was unable to provide the associated 

hazardous material shipping paper because of the typographical error on the NOPIC involving 

the tracking number. The proper shipping name was depicted on the NOPIC as "NOS". 

On April 14, 2011, the NO PIC for Martinaire flight 63 7 (WWR to OKC), failed to 

include the complete proper shipping name and packing group as required for a hazardous 

materials shipment properly classified as Chemical Kit, hazard class 9, UN3316 (tracking 

number 1ZSR91W60123229672). The proper shipping name was listed as "BECKMAN 

COULTER". 

For the NOPIC dated Aprill4, 2011, Martinaire failed to include the complete proper 

shipping name and packing group as required for a shipment properly classified as Sodium 

hydroxide Solution, hazard class 8, UN1824, (tracking number IZ5R91 WSO 123218942) . The 

proper shipping name was listed as "BECKMAN COULTER". Martinaire was unable to provide 

the associated hazardous materials shipping papers due to a typographical error on the NOPICS 

involving the tracking number, 

On April 12, 2011, the NO PIC for Martinaire flight number 637 (WWR to OKC), failed 

to include the proper shipping name and packing group for shipments of items classified as 

Lithium Metal Batteries Packed with Equipment, hazard class 9, UN3090, PO II 

(tracking numbers IZ8847490150235015 & IZ8847490150241628, respectively) as required. 

On April 12, 2011, the NOPIC for Martinaire flight number 685 (Eugene, Oregon (EUO) 

to Portland, Oregon (PDX)), failed to include the complete proper shipping name, hazard class, 

identification number and packing group as re.quired for a hazardous materials shipment properly 

classified as Caproic Acid, hazard class, UN2829, PO III (tracking number 

1Z074E300205633517). The NOPIC described the shipment as 'Caret acid, hazard class 3, 

UN2800. For the NO PIC dated Aprill2, 2012, Hazard Class "3" is designated for flammable 

liquids and UN2800 is the identification number for Battery, wet, non-spillable. 

On April 1, 2011, the NOPIC for Martinaire flight number 666 (ABI-DFW), failed to 

include the complete proper shipping name and packing group as required for a hazardous 

materials shipment properly classified as Sodium hydroxide Solution, hazard class 

5 
8, UN1824, (tracking number 1Z751189011649924). The proper shipping name was listed on 

the NOPIC as "Corr". 

For the NO PIC dated April!, 2011, Martina,ire was unable to provide the associated 

hazardous materials shipping paper due to a typographical error on the NO PIC involving the 

tracking number. 

B. Respondent's recitation of facts 

Martinaire admitted paragraph 1 of the Complaint, in that on or about July 8, 2011, the 

FAA conducted an inspection at its headquarters at 4553 Glenn Curtis Drive, Addison, Texas, 

and averred that the inspection included an FAA review and audit of approximately 500-600 

NOPICs for hazardous materials shipments transported on Martinaire's cargo-carrying fights 

from approximately April!, 2011 through July 7, 2011. 

As to paragraph 2 of the Complaint, Martinaire admitted the inspection included a review 

ofNOPICs for hazardous materials transported by cargo-carrying flights from approximately 

April!, 2011 through July 7, 2011. 

As to paragraph 3 of the Complaint, Martinaire admitted the NO PIC for Flight 63 7 did 

not include the full shipping name and hazard class. 

As to paragraph 4 of the Complaint, Martinaire admitted the NOPIC did not provide the 

shipping names for two dry ice shipments. ' ' 

As to paragraph 5 of the Complaint, Martinaire admitted the NOPIC for Flight No. 600 

described the item as UN\245 when it should have been described as UN\263. 

As to paragraph 6 of the Complaint, Martinaire admitted that UN 1245 was an 

identification number for methyl isobutyl ketone, a packing group II flammable liquid. 

As to paragraph 7 of the Complaint, Martinaire admitted the NO PIC for Flight No. 682 

described the item as UN1087, when it should have been described as UN\987. 

As to paragraph 8 of the Complaint, Martinaire admitted that UN\087 was an 

identification number for vinyl methyl ether, stabilized. 

As to paragraph 9 of the Complaint, Martinaire admitted the NOPIC for Flight No. 806 

did not include the proper shipping name and packing group for two shipments for petroleum 

distillates. 

As to paragraph 10 of the Complaint, Martinaire admitted the NOPIC contained the 

shipping name "Distillates" and the identification number "128" and the flight number and date 

were not contained on the NO PIC. 

6 
As to paragraph II of the Complaint, Martinaire admitted the NO PIC for Flight No. 666 

contained a typographical error involving a tracking number and listed an incorrect identification 

number UNI064. 

As to paragraph 12 of the Complaint, Martinaire admitted the NO PIC for Flight No. 666 

contained a typographical error involving a tracking number and listed an incorrect identification 

number UN1064. 

As to paragraph 13 of the Complaint, Martinaire admitted the NO PIC for Flight No 601 

did not contain the complete shipping name, hazard class and packing group. 

As to paragraph 14 of the Complaint, Martinaire admitted the NO PIC for Flight No 700 

did not contain the complete shipping name, hazard class and packing group . . ;" 

As to paragraph 15 of the Complaint, Martinaire admitted there was a typographical error 

on the NPIC dated May 14, 2011, involving the tracking number. 

As to paragraph 16 of the Complaint, Martinaire admitted the NO PIC for Flight No. 688 

did not contain the complete shipping name, hazard class and packing group. 

As to paragraph 17 of the Complaint, Martinaire admitted there was a typographical error 

on the NOPIC dated May 13,2011, involving the tracking number. 

As to paragraph 18 of the Complaint, Martinaire admitted the NOPIC for Flight No. 6327 

did not contain the complete shipping name and packing group. 

As to paragraph 19 of the Complaint, Martinaire admitted the NOPIC for Flight No. 637 

did not contain the complete shipping name and packing group and there was a typographical 

error involving the tracking number. 

As to paragraph 20 of the Complaint, Martinaire admitted the NOPIC for Flight No. 637 

did not contain the complete shipping name and packing group. 

As to paragraph 21 of the Complaint, Martinaire admitted the NOPIC for Flight No. 685 

did not contain the complete shipping name, hazard class and packing group. 

As to paragraph 22 of the Complaint, Martinaire averred the Hazard Classes and UN 

identification numbers speak for themselves. 

As to paragraph 23 of the Complaint, Martinaire admitted the NOPIC for Flight No. 666 

did not Contain the shipping name and packing group. 

As to paragraph 24 of the Complaint, Martinaire admitted there was a typographical error 

involving the tracking number. 

7 
As to paragraph 25 of the Complaint, Martinaire denied it violated Section 175.33(a)(1), 

175.33 (a)(1)(i) and 175.33(a)(7) of the Department of Transportation Hazardous Materials 

Regulations (hereinafter "HMRs"). 

With respect to each numbered paragraph of the Complaint, except as expressly admitted, 

Martinaire denied each and every, all and singular, allegations contained therein, and each and 

every part thereof, both generally and specifically, conjunctively and disjunctively. 

Answering Part III of the Complaint, Martinaire averred that HMR Section 107.329 and 

49 US. C. Section 5123(a)(1) spoke for themselves, but denied that a civil penalty of $206,500, 

or any other amount was appropriate. 

Martinaire also asserted affirmative defenses as follows: 

First Affirmative Defense 

The sanction sought by the FAA was unwarranted by the facts, safety in commerce and 

the public interest and was not only excessive, but far exceeded policy, precedent and the FAA's 

own Sanction Guidance Table. Further, the sanction was compounded in violation of the FAA's 

own Sanction Guidance Table. 

Second Affirmative Defense 

The FAA's case was unwarranted and without basis or jurisdiction in law or fact. 

Third Affirmative Defense 

Martinaire alleged discrepancies with the requirements of 49 C.F.R. § 175.33 were the 

product of simple human error by non-management employees of Martinaire in violation of 

Martinaire' s own policies and procedures and contrary to the training and guidance the 

employees were provided by Martinaire and were in no way indicative ofMartinaire's regulatory 

compliance disposition. The majority of the employees involved were Martinaire pilots, who 

themselves prepared the NOPICs, based upon information given to them by third parties. In 

essence, the pilots were preparing the notifications themselves. The employees involved, 

although adequately trained and qualified under Martinaire's then FAA approved training 

program, including but not limited to Martinaire's HAZMAT Training Program, have since 

received additional training. Moreover Martinaire, in an immediate response to the matters 

giving rise to this case revised and updated its HAZMAT Training Program, revised its standard 

NO PIC Form to more 'user friendly', mandated additional training not only for the personnel 

involved in these alleged incidents, but all fight operations, pilot and dispatch personnel, and 

implemented a program of internal daily audits of all NOPICs. 

Fourth Affirmative Defense 

Martinaire proactively mitigated any and all damages such that the FAA's action was 

8 
unwarranted by policy or the need for safety. Specifically, Martinaire alleged, it: 

Counseled all pilots involved in the incident alleged in the Complaint; 

Counseled all flight department and dispatch personnel in the interests of 

preventing recurrence of such incidents; 

Revised its HAZMAT Training Program to specifically address said problems and 

ensure future compliance; 

Revised the NOPIC From to make it more user friendly; 

Provided its personnel with additional HAZMAT training so as to prevent 

recurrence of such incidents, including, Hazardous Material Regulations; acceptance and 

transport of dangerous goods, and proper completion of the revised NOPIC form; and 

Implemented a program of daily audits of al NOPIC's which had since shown that 

compliance had been achieved. 

Fifth Affirmative Defense 

Martinaire alleged it had taken all necessary corrective actions to avoid repeated mishaps 

such that penalties were redundant and will not result in any increase in safety 

Sixth Affirmative Defense 

Martinaire alleged: 

1. The FAA relied on FAA Order 2150.3B in determining the sanction in this case; 

2. The FAA compounded the alleged violations and sanctions in contravention of 

FAA Order 2150.3B; 

3. The FAA sought civil penalties in excess of those suggested in FAA Order 

2150.3B's Appendix C, Figure C-1, in further contravention of said Order; 

4. The FAA further contravened FAA Order 2150.3B in not taking into 

consideration the considerable corrective action that was immediately thereafter 

taken by Martinaire; 

5. 2150.3B, to the extent that it treated Martinaire as a Group II carrier, was 

arbitrary, capricious and unenforceable. Specifically, Figure C-1 of the Sanction 

Guidance Table contained within said Order mandated that Martinaire be treated 

as a Group II carrier and accordingly be subjected to higher penalties than Group 

III or IV carriers. The sole reason for this is the number of aircraft that Martinaire 

operated (39, including 24 owned and 15 leased aircraft), all of which have a 

maximum gross takeoff weight of less than 12,500 pounds. However, FAA Order 

2150.3B and Table fail to account for the size of the aircraft or their payloads. 

Under the Order and Table, a carrier operating fewer, but larger, aircraft, carrying 

far greater payloads, and far greater numbers of hazardous materials shipments 

and generated substantially greater revenues, could be treated as a smaller carrier 

and be subject to lesser penalties. 

Martinaire also asserted further distinctive offenses, including: 

9 
• The FAA's case was devoid of any sense of proportion. 

• During the period of time covered by the Complaint, Martinaire carried some 

500-600 HAZMA T shipments, all Without incident. 

• The NOPICs examined by the FAA inspection team on July 8, 2011, which 

gave rise to this case, covered a period of 90 days. The total number of 

NOP!Cs examined by the FAA was 500-600. Of this total number, only 12 

were observed to have any discrepancies. 

• As a small company (and a small business) that operated only small aircraft 

with less than 100 employees, the burden on Martinaire caused by a 

$206,550.00 penalty would be unsurmountable. 

VII. Summary of Testimony 

All admitted testimonial and documentary evidence was reviewed and considered. 

Testimony is summarized herein. 

1. Agency's Case 

Bryan Edward Buchanan 

Bryan Edward Buchanan (hereinafter "Buchanan") was the manager of the hazardous 

materials safety branch in Fort Worth, Texas, during the time of the within investigation. He 

supervised eight special agents who worked in three different states. The agents conducted 

inspections and investigations of violations of the HMRs. Mr. Buchanan had worked with 

HMRs approximately 25 years 2 

Buchanan identified Martinaire as a Part 135 "on-demand" cargo carrier. Buchanan 

testified Martinaire had contracts with United Parcel Service and DHL. Martinaire was a feeder 

operation which took freight from small markets to larger markets, and then back from larger 

markets to small markets on a contract basis. At the time of the incident, Buchanan supervised 

the lead agent, Paul Daniel Klimas. The inspection which generated the violations took place at 

Martinaire's corporate office in Addison, Texas, as well as some ramp inspection activity at 

Dallas-Fort Worth International Airport (hereinafter "DFW"). 3 

Buchanan identified the NO PIC as the document that detailed the 1-IMs that were 

accepted and transported on an aircraft, and their location and other information that could be 

used by emergency responders or the pilot in charge. According to Buchanan, at remote 

locations, the UPS or the DI-lL trucks backed up to Martinaire aircraft. The pilot would go 

through an inspection, an acceptance process of those 1-IMs. He would fill out the NO PIC, place 

the materials on the aircraft in specific locations an~ notate that on the NOPIC. Before takeoff, 

the pilot would contact the dispatch office to provide the information on the NO PIC form to a 

dispatcher who would write it down on the form kept at the dispatch office. Then there was a 

2 Tr. p. 25, I. 10 top. 27, I. 1. 1 Tr. p. 27, I. 2 top. 28, I. 6. 

10 
record at the dispatch office, as well as with the pilot. Then the pilot would start his/her journey 

to the larger station. 4 

According to Buchanan, NOPICs were important because the form provided pilots with 

the information on what was loaded on an aircraft, where it was located, and other emergency 

information. In addition, it provided emergency responders with information about aircraft cargo 

so they were able to react to a situation with a hazardous material. 5 

During the inspection on July 11, 2011, the inspectors documented seventeen (17) 

discrepancies. Buchanan discussed the application of FAA Order 2150.3B and its applicability 

to the facts of this case. In his opinion Martinaire was a Group II Air Carrier, with a gross 

revenue less than $100 million annually. In his opiilion Martinaire had 50 or less pilots and it 

had 25 or more aircraft. Buchanan testified this type of carrier was held to a high standard. 

Buchanan then discussed Martinaire's past violation history. 6 

Buchanan explained that Martinaire's procedure for preparing the NOP!Cs differed from 

that utilized by large carriers. Buchanan explained that at large carriers transportation workers or 

a computer program generated a NO PIC for the pilot and gave it to the pilot. At Martinaire, the 

pilot generated the NO PIC after she/he conducted an inspection and accepted stowage of the 

hazardous material. When Martinaire conducted feeder flights for DHL and UPS, the pilot 

received a coupon from DHL and/or UPS which showed the pilot the hazardous material, the UN 

number, the quantity, the common name, the technical name, and other information. Buchanan 

explained the DHL/UPS coupon would have the same information which was required to be on 

the NOPIC. 7 

Buchanan testified Martinaire had a binder which had the dispatch copy of all the HM 

shipments for the past ninety (90) days. During the period of July 2011 there were several 

hundred NOPICs in the binder, of which seventeen (17) showed discrepancies. There were no 

other discrepancies found at DFW8 ..• 

Buchanan reiterated that in his opinion Martinaire was a Group II carrier because its 

revenue was less than a 100 million a year and it had less than fifty (50) pilots but more than 

twenty-five (25) aircraft. In his opinion it made no difference whether Martinairc owned, 

borrowed or leased the airplanes. Nor did it make any difference what size aircraft were 

involved. He acknowledged that Martinaire operated smaller aircraft including Cessna 208 

Caravans and "Twin Beeches". He also acknowledged if Martinaire operated with larger aircraft 

and fewer pilots with the same revenue, it could be a Group Ill or IV carrier and be exposed to 

4 Tr. p. 28, 1. 13 top. 29, 1. 20. 

5 Tr. p. 42, 1. 9 top. 44, 1. 4. 6 Tr.p.32,1.1 top.42,1.19. AgencyEx.IOO.Ol. 7 Tr. p. 45, 1. 15 top. 48, 1. 3. 8 Tr. p. 48, 1. I top. 40, 1. 10. 

11 
lower penalties 9 

Buchanan acknowledged that Martinaire appeared to have taken corrective action. He 

testified the purpose of HMR Section 175.33 was to insure the operator of the aircraft provided 

the PIC with accurate written information concerning the shipping name, hazard class, 

identification number of the materials, so the pilot knew what he or she had on board the 

airplane. The NOPIC, according to Buchanan, was developed based on recommendations of the 

National Transportation Safety Board (hereinafter "NTSB"), but there was no policy from the 

FAA that NOPICs were available for the use of first responders. 10 

Buchanan testified that in the past 17 years, in his experience, the average dollar amount 

of civil penalties for NO PIC violations was between $30,000 and $50,000; that the FAA had 

never, ever sought civil penalties for NO PIC violators in excess of $200,000; and that the FAA 

was generally satisfied with Martinaire stepping up to the plate and implementing corrective 

actions. 11 

Redirect 

No weight was given to the redirect testimony as it was well beyond the scope of the 

direct and cross-examination and was the subject of an objection by the Respondent which was 

sustained. 

Re-cross 

On re-cross Mr. Buchanan responded that the NOPICs reviewed were the dispatch 

copies of the NOPICs; they were based upon information that the pilot had called in to dispatch; 

to the extent that there were gaps or errors in the dispatch copies of the NOP!Cs, Buchanan had 

no idea what the pilot's own copy of the NOPIC said. 12 

Paul Daniel Klimas 

Paul Daniel Klimas (hereinafter "Klimas") was a special agent, hazardous materials for 

the FAA. He was responsible for the inspection of air carriers, hazardous materials shippers, 

hazardous materials freight-forwarding companies, FAA-certified repair stations as it pertained 

to their hazardous materials programs and the application of their programs. He had been with 

the FAA fifteen (15) years. Prior to that he was with the Federal Railroad Administration. He 

had a total of twenty-five (25) years of experience with hazardous materials. 13 

Klimas' testified that Martinaire was a feeder operation for DHL and UPS. 14 

9 Tr. p. 50, I. II top. 52, 1. 16; Respondent Ex.# R-1. 10 Tr. p. 53, 1. 7 top. 57, 1. 15. 11 Tr. p. 57, I. 20 top. 59, I. 7. 

12 Tr. p. 70, I. 13 top. 71, I. 12. 13 Tr. p. 75, I. 10 top. 77, I. 8. 

14 Tr. p. 77, II. 14-19. 

12 
On July 8, 2011, Klimas conducted a routine comprehensive inspection of Martinaire, 

with Jay Sorah. They began by monitoring in-bound and out-bound flights at DFW then 

proceeded to Addison, where Martinaire maintained their headquarters. At Addison they were 

joined by Dennis Juenemann. Among items inspected were the NOPICs (also known as NOPCs) 

for Martinaire. Klimas described the NOPIC as a summary of the hazardous materials that were 

on board a flight, a brief description as well as the location where those items were loaded on the 

aircraft. 15 

The inspection uncovered many conflicting NOPICs regarding proper UN 

identification numbers. Each hazardous material had a definitive identification 

number, which in the case of Martinaire, conflicted with proper shipping names, hazard class. 

Klimas also found missing special permit numbers. During the investigation Klimas reviewed 

approximately 400 NOPICs and found discrepancies in twelve (12) NO PIC forms covering 

seventeen (17) shipments. 16 

In Klimas' opinion, the NO PIC records were in poor shape. For example, the NO PIC for 

6/22/11 contained three shipments of hazardous materials. The first was missing a proper 

shipping name. The second one- the second line on that first shipment, the UN number 

indicated 19 -- UN number 1956, compressed gas NOS, but yet they listed a hazard class as class 

I which was an explosive item. The second tracking number for 6/22/11 listed a shipping name 

of Boehringer, but there was no HM with that nan1e. The third tracking number for 6/22/11 

listed proper shipping name being JCAH, but Klimas testified there was no proper shipping 

name for JCAH. Klimas had to go to United Parcel Service to obtain the proper documentation 

for the 6/22/11 flight. 17 

Klimas testified that Martinaire had no discrepancies during the comprehensive 

inspection at DFW. Martinaire had no discrepancies at Addison of its training records for pilots 

and dispatches and no discrepancies of in its 'stores 1

' records. 18 Klimas testified that he had 

examined the dispatch copy of the NOPICs and Klimas did not know who authored those forms, 

whether it was the pilot or whether it was the dispatcher transcribing certain information given 

by the pilot. He testified they were told the information was radioed in from the crew members 

or telephoned in and transcribed by the dispatchers. He testified further he did not know whether 

the errors were transcription errors on the part of the dispatcher or the result of some other error. 

He testified, when the pilot accepted the HMs shipment from DHL or UPS, he/she received a 

coupon which basically had the very same information that would go in the Martinaire NOPlC 

form, with the exception of the location of the HM onboard the aircraft. 19 

15 Tr. p. 78, I. 20 to 80, I. 4. 16 Tr. p. 80, I. 13 top. 81, I. 18. 17 Tr. p. 83, I. 14 top. 89, I. 3. Agency Ex. 100.01, page 6 of25. 18 Tr. p. 94, I. 9 top. 94, I. 20. 19 Tr. p. 95,!. 18 top. 98, l: II. 

13 
Klimas testified the HMR 175.33 did not state the NOPIC was to be used for emergency 

response procedures or be available for emergency responders. There was a Pipeline and 

Hazardous Materials Safety Administration (hereinafter "PHMSA") letter of interpretation that 

alluded to the information being available to emergency responders in event of an incident, but 

there was nothing in FAR 119 or FAR 135 that required a carrier to be familiar with PHMSA 

interpretations. Further, Martinaire's general operating manual or GOM did not require they be 

familiar with PHMSA interpretations. There were no FAA handbooks or orders that stated that 

the NOPIC, in addition to serving as a notice to the pilot-in-command was to be used for 

emergency response procedures. He further testified that with the major carriers, the NO PIC was 

prepared by someone and given to the flight crew?0 

Klimas testified that in its August 2, 2011, reply to the N otiee of Proposed Civil Penalty 

(hereinafter "NO PCP") Martinaire outlined the corrective actions it had taken in response to the 

investigation. In Klimas' opinion, Martinaire addressed the FAA's concerns, took swift, 

comprehensive, corrective action. In his opinion there was nothing that Martinaire should have 

done that they did not do in response to the investigation 21 

Klimas testified there was another inspection in December 2013 which found additional 

NO PIC violations. After the December 2013, Klimas testified, Martinaire implemented an 

extensive program to deal with NOPICsn 

With respect to prior violations involving NOPICs, Klimas testified that in the prior 

Northwest Mountain caseY1 the PIC did not prepare the NO PIC because he had run out of 

forms. The case was settled. In the prior Great Lakes case,121 which settled, the PIC washed the 

plane using a HM substance without the knowledge or permission of Martinairer31 

Evidence 

The Agency introduced the statement of Paul Klimas which contained copies of 

Martinaire NOPICs. The exhibit was admitted. 

2. Respondents' Case 

Alan Rusinowitz 

Alan Rusinowitz (hereinafter "Rusinowitz") was the Executive Vice President, chief 

operating officer of MartinaireD Martinaire was a part 135 cargo carrier, with fewer than ninety 

(90) employees and thirty-four (34) aircraft. Of the thirty- four (34) aircraft, Martinaire owned 

20 Tr. p. 98, l. 14 top. 102, l. 16. 21 Tr. p. 104, l. 8Jo p. 107, l. 6. 22 Tr. p. 107, l. 7 top. 109, l. 6. 

Ill Northwest Mountain Regional Office, FAA 

121 Great Lakes Regional Office, FAA; referred to as the "Purple Power" case because of the name of the liquid used 

to clean the aircraft and thereafter flown on the aircraft without the knowledge ofMartinaire. 

1

3

1 Tr. p. 109, l. 7 top. 112, l. 4. 23 Tr. p. 116, l. 1 top. 121, l. 7. 

14 
twenty-one (21 ), the rest were leased. Martinaire was a limited liability company (hereinafter 

"LLC") with three (3) people members of the LLC. Rusinowitz's recollection was that in 2011 

Martinaire made in the neighborhood of $200,000 in profit. During the period 2011, 2012 and 

2013, Martinaire operated about 1500 flights per month or flight hours. Martinaire did not earn a 

profit in 2012 or 2013 and was not earning a profit in 2014 as of the time of the hearing. Over 

the three years prior to the hearing the number of employees and aircraft utilized by Martinaire 

declined due to the economy. 

24 

Rusinowitz testified the purpose of the NO PIC was to provide information to the pilot of 

what he/she was carrying that was a hazard or potential danger. He was aware of no requirement 

in the HMRs that specified that NOPICs were to be used for first responders. Rusinowitz 

described that HMR loads were delivered to Martinaire at an outstation, they were not picked up, 

but brought out from a sort facility to the aircraft. The pilot inspected every package that would 

go on the airplane. He/she was there to supervise and, if needed, assist in the loading of the 

aircraft. Martinaire had a good relationship with DHL and UPS. UPS/DHL would put aside HM 

packages and malce sure the pilot personally inspected- six-side inspection -the packages, 

make sure they were not leaking, broken, et cetera, as required by the regulations; insure 

packages were properly labeled. After Martinaire had the proper information it would fill out a 

NOPIC. When UPS/DHL delivered a HM shipment, it typically carne with a coupon that 

informed the pilot what was in the package, including the UN ID number, proper shipping name, 

packing class, group, restrictions and weight. The pilot would use the coupon to prepare the 

NO PIC form. As a result, the coupon and NO PIC should have contained the same information. 

However, the NOPIC contained additional information indicating date, pilot, aircraft, and where 

the shipment was on the airplane. In effect, the pilot recopied the coupon information onto the 

NOPIC, which was actually redundant, because the pilot had the coupon with the required 

information. The pilot then called all the information including dates, et al, into dispatch. The 

Martinaire 90-day file maintained at Martinaire's offices in Addison had the dispatch copies of 

the NOPICs, and represented the information that had been called in to dispatch by the pilot. As 

a result, any errors on the Martinaire 90-day NO PIC file copy would have been the result of 

dispatch either transcribing it wrong or leaving it out. In the opinion of Rusinowitz, the pilot 

would have had the correct information, but the pilot's NOPICs were not retained25 

As a result of the July 11 inspection, Rusinowitz met with representatives from the FAA 

and Martinaire agreed to update its training program, retrain their pilots and dispatchers, 

continue with every year training, revise the NO PIC form so it was more in compliance with the 

regulatory requirements at the time, audit procedures, revise the General Operations Manual 

(hereinafter "GOM") as necessary, all of which Martinaire did. Rusinowitz referred to 

Respondent Exhibit #R-1, which was transmitted to the FAA after the July 2011 briefing to 

demonstrate how Martinaire had updated their procedures and taken corrective action. 

Rusinowitz further testified that while HM training was required to be given biannually, 

Martinaire performed the training annually in conjunction with annual recurrent training. 

Respondent Exhibit #R-1 also contained the redesigned NOPIC26 

24 Tr. p. 121, I. 8 to p. 126, I. I. 

25 Tr. p. 126, I. 7 top. 132, 1. 20. 26 Tr. p. 134, I, 6 top. 138,1. 13. 

15 
Rusinowitz testified that Part 135 regulations required flight followers, while the name 

"dispatcher" was actually a Part 121 requirement. Martinaire always hired the most experienced 

flight followers, and Martinaire called the department "dispatch," but in its operations the terms 

were synonymous. 

27 Martinaire ultimately retrained everyone after the July 20 II inspection and 

revised the HAZMA T training syllabus. 28 

Rusinowitz testified that with respect to one prior Northwest Mountain violation, the pilot 

who was assigned the route, flew it all the time. It was his assigned route. He landed at his 

destination, got inspected, and didn't have a NOPIC for a HAZMAT package that was on board. 

He had the coupon, but he didn't have the NO PIC itself filled out. He had called in the 

information but didn't have his copy, because he had used the last form in his possession. 

Rusinowitz called the violation the human factor of stupidity. With respect to the second prior 

violation- the Great Lakes case - the pilot flew for Martinaire, but washed planes on the 

weekends. He went to the store and picked up Purple Power, which was like a Simple Green 

degreaser, cleanser. He put it on the airplane in the front compartment where he stuck his bag, 

and flew down to Lansing. He figured it was his personal carriage and it didn't have to be 

declared. He didn't tell anyone. When Martinaire settled these cases, it was without admission 

of liability.29 

With respect to the December 2013 incidents, Rusinowitz testified the FAA found 

discrepancies with the NOPICs. In his opinion it basically came down the human factor, because 

these were just human editorial errors. There was no doubt in Rusinowitz's mind that the pilot 

had every piece of required information he was supposed to have when he flew the flights. 

Ultimately Martinaire contracted with a company to develop a computer-based application 

that will perform this function, basicall~ an electronic NO PIC that the dispatcher can use, which 

will cost between $10,000 and 15,000. 0 

Evidence 

Martinaire introduced R-1, which consisted of a letter dated August 2, 20 II, and 

attachments A through M, inclusive. The exhibit was admitted. 

Other Evidence 

Martinaire's Trial Brief was offered and admitted at Court Exhibit "ALJ-1". 

VIII. Summary of Evidence 

In its Answer to the Complaint Martinaire admitted the violations. The evidence is set 

27 Tr. p. 138, I. 14 top. 139, I. 3. 28 Tr. P. 139, I. 8 top. 141, p. 20; Exhibit#R-1, Attachments I, J, k, Land M. 29 Tr. p. 142, I. 15, top. 146, I. 16. 30 Tr. p. 148, I. 2 top. 154, I. 17. 

16 
forth herein above for purposes of determining the penalty. 

IX. Analysis of facts 

Agency argument 

The FAA addressed Martinaire' s argument that the sanction guidance or the sanction in the 

amount of $206,550 was outside the range. The FAA asked the Court to give deference to the 

FAA's order 2150.3B, Appendix C, the sanction guidance, hazardous material enforcement 

provisions. The FAA submitted the civil penalty amount of $206,550 was within the 2150.3B 

range and was warranted and reasonable. The low amount or the floor amount for the civil 

penalty within the Group II range for the hazardous material regulations violations was $5,000. 

The high point range per violation was $16,200. The FAA argues there were seventeen (17) 

separate shipments. The FAA argued the civil penalty range was not set at the high end, but was 

within the guidelines of the 2150.3B. The FAA asked that we give deference to the 

Complainant's argument with regard to the civil penalty. 

The FAA argued to determine an appropriate civil penalty to be assessed under 49 

US.C.A. § 5123(c) Penalty considerations, nine factors must be taken into consideration. These 

factors were (I) nature, (2) circumstance, (3) extent, and (4) gravity of the violation; (5) the 

degree of culpability of the violator; (6) any history of past violations; the violator's (7) ability to 

pay, and (8) ability to continue to do business; and (9) other matters as justice may require. 

The FAA argued it had the burden of proving the first five factors. The FAA had 

established policy guidance for determining these five factors and assigning them weight. 64 

Fed. Reg. 19443 (Apri/21, 1999); FAA Order 2150 38, Appendix C, FAA Sanction Guidance, 

Hazardous Materials Enforcement (October I, 2007). The FAA argued a penalty calculated in 

accordance with the FAA's policy guidance should stand, absent a showing of the Respondent's 

inability to pay, inability to continue to do business: or some other matter required by justice. 

Financial hardship was an affirmative defense that the respondent bore the burden of proving. 

The FAA argued it was entitled to substantial deference in establishing an appropriate 

civil penalty. It argued the agency's "choice of a sanction was not to be overturned unless 'it is 

unwarranted in law' or 'without justification in fact."' (NL Industries, Inc. v. Department of 

Transportation, Federal Aviation Administration, 901 F.2d 141 (1990)). 

The FAA argued: 

Four of the (17) seventeen shipments that contained a risk Category "A" 

hazardous material were incorrectly listed on the NOPICs. A risk category "A" 

hazardous material posed a catastrophic risk to the safe flight of an aircraft when 

released on an aircraft. Four of the shipments that contained a risk category "B" 

hazardous material were incorrectly listed on the NOPICs. A risk category "B" 

hazardous material did not pose an immediate risk to the flight of an aircraft, but 

it could cause death or injury if released in the confines of an aircraft. Four of the 

17 
shipments that contained a risk category "C" were incorrectly listed on the 

NOPICs. A risk category "C" were hazardous materials that presented the least 

amount of risk to the transportation system. Five of the shipments contained risk 

category "A", "B", or "C" hazardous materials and were incorrectly listed on the 

NOPICs. 

The FAA argued improperly completed NOPICs posed a serious threat to the health and 

safety of the pilots who flew the aircraft and the first responders who might have been called to a 

crash or a fire aboard the aircraft. Without knowledge of the specific properties of a hazardous 

material, first responders would be incapable of responding to an emergency in a safe manner. 

Martinaire held an Air Carrier Certificate issued under Part 119 of the Federal Aviation 

Regulations ("FAR") and operations specifications issued underPart 135 of the FAR. Martinaire 

operated thirty-four (34) airplanes. It owned twenty-one (21) of the aircraft and leased the 

remainder. Martinaire was an American cargo airline that operated feeder flights for overnight 

package delivery services for UPS and DHL. Martinaire regularly accepted and transported 

hazardous materials. The FAA argued because Martinaire was a Part 135 cargo carrier, it was 

held to the highest standard of care. It owed a higher duty of care to its pilots, first responders 

and the public at large. The FAA argued the degree of culpability for Martinaire was extremely 

high. 

The FAA argued the prior violations further justified the imposition of the penalty 

requested. 

Although Martinaire's earnings in the two (2) years prior to the hearing were flat, these 

earnings were not indicative of its inability to pay a civil penalty of $206,550.00. The FAA 

argued that Martinaire failed to submit into evidence any financial statements or tax returns to 

support its assertions that a civil penalty of$206,550.00 would be insurmountable to the 

company. Consequently, Martinaire failed to show a nexus between the proposed civil penalty 

and a negative effect on the company. 

The FAA argued Martinaire did not put any evidence on during the hearing to show that a 

civil penalty of $226,550.00 would put Martinaire out of business. The FAA referred to portions 

of the deposition ofRusinowitz on May 16,2013, about the impact of a civil penalty on 

Martinaire's ability to continue its business. However, that deposition is not in evidence and 

arguments with reference thereto will not be considered from either party. 

The FAA argued the civil penalty of$206,550.00 was reasonable based on the totality of 

circumstances in this case. Under the agency sanction guidance, the failure to provide the pilotin-command with an accurate and complete NOPIC warranted a civil penalty for each individual 

shipment between $5000.00 and $16,000.00. The midpoint of the range was $10,600.00. A civil 

penalty of $206,550.00 based on the totality of circumstances in this case did not exceed the civil 

penalty sanction guidelines set forth in the 2150.3B Order. 

The FAA argued Martinaire did not perform corrective action that exceeded the legal 

18 
minimum requirement which would justify a reduction in civil penalty. 

Based on the totality of circumstances, the FAA requested a civil penalty of $206,550.00 

be rendered against Martinaire which the FAA argued was within the 2150.3B range and was 

warranted and reasonable. 

Martinaire argument 

Martinaire argued it was a small, Addison, Texas, based "on-demand" cargo airline. It 

was a non-public limited liability company, having only three (3) members and less than ninety 

(90) employees. It operated thirty- four (34) single-pilot aircraft; eighteen (18) Cessna 208's 

(single engine, fixed landing gear) that it owned, and thirteen (13) leased Cessna 208's and three 

(3) Beech 1900's (twin engine) under Part 135 of the Federal Aviation Regulations (FAR's). 

In 2011, Martinaire's net profit was $197,169 or a mere $12.64 per flight. Subsequent to 

2011 and continuing into the present year, Martinaire had been operating at a loss. 

Martinaire suggested the FAA's decision to impose a $206,550 civil penalty was based 

on the FAA's position that: 

1. The NOPIC's contained in the 90-day file were incomplete or in error; 

2. Martinaire violated the cited HMR's in not providing full information to the pilot 

in command, thereby putting the pilots' well-being at risk; 

3. Martinaire (through its dispatch office) put the well-being of not only first 

responders, but "the public at large" at risk; 

4. Martinaire's prior violations, and a December 2013 inspection demonstrate that 

"its conduct of violating the ... (HMR's) is systematic"; and 

5. Martinaire can afford to pay the penalty. 

Martinaire argued the FAA's approach was overly simplistic. It not only convoluted 

the facts, the law and plain logic, but violated both the law and established precedent. 

Martinaire conceded there was no dispute the NO PIC's in the 90-day file, prepared by dispatch 

personnel based upon information called in by the pilots, evidenced transcription or other human 

errors. 

Martinaire cited portions of the HMRs (49 C.F.R. § 175.33) which provide in part: 

§ 175.33 Shipping paper and notification of pilot-in-command. 

(a) When a hazardous material subject to the provisions of this subchapter 

is carried in an aircraft, a copy of the shipping paper required by §175.30(a)(2) 

must accompany the shipment it covers during transportation aboard the aircraft, 

and the operator of the aircraft must provide the pilot-in-command with accurate 

and legible written information as early as practicable before departure of the 

aircraft, which specifies at least the following: 

19 
(I) The proper shipping name, hazard class and identification number of 

the material, including any remaining aboard from prior stops ... 

(2) The total number of packages ... 

(3) The net quantity or gross weight, as applicable ... 

( 4) The location of the packages aboard the aircraft; 

(5) Confirmation that no damaged or leaking packages have been loaded 

on the aircraft; 

(7) The date of the flight .... 

(emphasis added by Martinaire) 

Martinaire argued that unlike most major carriers which prepare NOPIC's and provide 

them to their flight crews, Martinaire's pilots received HazMat parcels from UPS or DHL, 

accompanied by a UPS- or DHL-prepared ticket containing all of the data specified in the above 

cited HMR's (except for flight number and specific location upon which the parcel has been 

loaded on the aircraft). Before departure, Martinaire pilots called the NO PIC information into 

dispatch. Dispatch personnel transcribed this information onto a NO PIC form and inserted the 

form into the "90-day file". The pilots had the .required NO PIC information in the form of a 

coupon - prepared by DHL or UPS - which had the very same information that would go on the 

Martinaire NOPIC form except for the location of the material on board the aircraft and date of 

the flight. The pilot copies of the NOPIC's were discarded after each flight; the dispatch copy 

was retained for 90 days. 

Martinaire argued the NOPIC was intended to be used only by and for the benefit of the 

pilot in command; the very same pilot, who prepared the NOPIC, based upon information 

contained in the UPS and DHL tickets/coupons, and who supervised the loading of the aircraft. 

Martinaire also argued there was nothing in the HMR's, FAR's, or any other regulation, 

any FAA Order or Handbook, or any other publicly available document that stated that the 

NOPIC was or should be prepared for the benefit of first responders in the event of an aircraft 

mishap. 

Martinaire argued that the United States Supreme Court placed an important limit on the 

deference courts should accord to a Federal administrative agency's interpretation of its own 

regulations citing Christopher v. Smith Kline Beecham Corp. (132 S.Ct. 2156 (2012)]. Invoking 

principles of "fair warning" and "unfair surprise," the Court held that deference does not apply, at 

least retrospectively, where an agency's "interpretation of ambiguous regulations [would] impose 

potentially massive liability on [a regulated eritity J tor conduct that occurred well before that 

interpretation was announced." There had been no regulatory reference, testimony or documents 

suggesting Martinaire should have known of a requirement to prepare NOPIC's to assist first 

responders. 

Martinaire suggested no regulatory violations of the cited HMR occurred. 

20 
Martinaire argued the NTSB, in an apparent response to an accident investigation may 

have recommended that NOPIC's be made available to emergency responders, and while another 

agency, PHMSA, may have issued an interpretation, the evidence was very clear that the sole 

"beneficiary" of the cited HMR was the pilot in command. There was nothing in the regulation, 

nor for that matter in any other regulation, FAA handbook, order or other publicly available 

information that mandated that a NOPIC be prepared or given to first responders. As admirable 

and useful as providing first responders with such information may be, there was simply no 

regulatory or legal requirement. While the Department of Transportation and/or the FAA could 

have amended the regulation, they had not. While the Department and/or the FAA could have 

disseminated some publicly available guidance interpreting the regulation so as to require that 

the NO PIC be prepared and made available to first responders, they had not. Simply stated, no 

air carrier or aircraft operator should be found in violation of a regulatory requirement that does 

not exist. 

Martinaire argued the $206,550 Civil Penalty was excessive, unreasonable and 

unwarranted. In support thereof, Martinaire argued the FAA did not allege and did not produce 

any evidence that pilot-in-command NOPIC's were in any way deficient or that the pilots in 

command did not possess required NO PIC information. Certainly, the DHL or UPS coupons 

that accompanied each parcel and given to the pilots contained the HMR-required information. 

Absent any evidence that the pilots did not receive the information required to be 

conveyed to them, the FAA's case must fail and no penalty should be assessed. Inasmuch as it 

was the Martinaire pilot who authored the NOPIC, it would defy logic to hold that the pilot was 

not given this information. 

Martinaire argued the FAA's assertion that this was an aggravated case which compelled 

the imposition of a civil penalty far in excess of that which the FAA had ever sought because 

there were two prior isolated hazardous materials cases and similar findings in an FAA 

inspection that occurred two years later was not evidence of a systemic corporate culture guilty 

of regulatory disregard. Martinaire settled both prior cases without admission of liability or 

wrongdoing. Martinaire argued the totality of the facts did not establish a pattern of conduct of 

HMR violations. 

X. Law 

A. Hazardous Materials Violations 

49 CFR Part 107 sets forth the Hazardous Materials Program Procedures. 49 C.F.R. 

107.329 sets forth the maximum penalties. 

49 U.S. C.§ 5123 provides in pertinent part: 

(a) Penalty. (1) A person that knowingly violates this chapter or a 

regulation, order, special permit, or approval issued under this chapter is liable to 

the United States Government for a civil penalty of not more than $75,000 for 

. 21 
each violation. A person acts knowingly when--

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

violation; or 

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

reasonable care would have that knowledge. 

(2) If the Secretary finds that a violation under paragraph (I) results in 

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

property, the Secretary may increase the amount of the civil penalty for such 

violation to not more than $175,000. 

(3) If the violation is related to training, a person described in paragraph 

(1) shall be liable for a civil penalty of at least $450. 

( 4) A separate violation occurs for each day the violation, committed by a 

person that transports or causes to be transported hazardous material, continues. 

(c) Penalty considerations.--In determining the amount of a civil penalty 

under this section, the Secretary shall consider--

(1) the nature, circumstances, extent, and gravity of the violation; 

(2) with respect to the violator, the degree of culpability, any history of 

prior violations, the ability to pay, and any effect on the ability to continue to do 

business; and 

(3) other matters that justice requires. 

49 C.F.R. § 175.33 provides in pertinent part: 

(a) When a hazardous material subject to the provisions of this subchapter is 

carried in an aircraft, a copy of the shipping paper required by §175.30(a)(2) must 

accompany the shipment it covers during transportation aboard the aircraft, and 

the operator of the aircraft must provide the pilot-in-command with accurate and 

legible written information as early as practicable before departure of the aircraft, 

which specifies at least the following: 

(1) The proper shipping name, hazard class and identification number of 

the material, including any remaining aboard from prior stops, as specified in 

§ 172.101 of this subchapter or the ICAO Technical Instructions. In the case of 

Class 1 materials, the compatibility group letter also must be shown. If a 

hazardous material is described by the proper shipping name, hazard class, and 

identification number appearing in: 

22 
(i) Section 172.101 of this subchapter. Except for the requirement 

to indicate the type of package, any additional description 

requirements provided in §§ 172.202, and 172.203 of this 

subchapter must also be shown on the notification. 

(ii) The ICAO Technical Instructions (IBR, see § 171.7 of this 

subchapter), any additional information required to be shown on 

shipping papers by subpart C of part 171 of this subchapter must 

also be shown in the notification. 

(2) The total number of packages; 

(3) The net quantity or gross weight, as applicable, for each package 

except those containing Class 7 (radioactive) materials. For a shipment consisting 

of multiple packages containing hazardous materials bearing the same proper 

shipping name and identification number, only the total quantity and an indication 

of the quantity of the largest and smallest package at each loading location need to 

be provided; 

( 4) The location of the packages aboard the aircraft; 

( 5) Confirmation that no damaged or leaking packages have been loaded 

on the aircraft; 

(6) For Class 7 (radioactive) materials, the number of packages, overpacks 

or freight containers, their category, transport index (if applicable), and their 

location aboard the aircraft; 

(7) The date of the flight; 

(8) The telephone number of a person not aboard the aircraft from whom 

the information contained in the notification of pilot-in-command can be 

obtained. The aircraft operator must ensure the telephone number is monitored at 

all times the aircraft is in flight.. The telephone number is not required to be 

placed on the notification ofpilot-in-c~rnmand ifthe phone number is in a 

location in the cockpit available and known to the flight crew. 

(9) Confirmation that the package must be carried only on cargo aircraft if 

its transportation aboard passenger-carrying aircraft is forbidden; and 

(I 0) An indication, when applicable, that a hazardous material is being 

carried under terms of a special permit. 

(11) For UN1845, Carbon dioxide, solid (dry ice), only the UN number, 

proper shipping name, hazard class, total quantity in each hold aboard the aircraft, 

and the airport at which the package(s) is to be unloaded must be provided. 

(12) For shipments of lithium cells or batteries (UN3090 or UN3480) 

offered for transportation, or transported in accordance with § 173.185( c)( 4 )(v) of 

this subchapter, only the UN Number, proper shipping name, hazard class, and the 

total quantity at each specific loading location and whether the package must be 

loaded on a cargo only aircraft. 

(b) A copy of the written notification to pilot, in-command shall be readily 

available to the pilot-in-command during flight. Emergency response information 

required by subpart G of part I 72 of this subchapter must be maintained in the 

same marmer as the written notification to pilot-in-command during transport of 

23 
the hazardous material aboard the aircraft. 

(c) The aircraft operator must-

(!) Retain a copy of the shipping paper required by §175.30(a)(2) or an 

electronic image thereof, that is accessible at or through its principal place of 

business and must make the shipping paper available, upon request, to an 

authorized official of a federal, state, or local government agency at reasonable 

times and locations. For a hazardous waste, each shipping paper copy must be 

retained for three years after the material is accepted by the initial carrier. For all 

other hazardous materials, each shipping paper copy must be retained by the 

operator for one year after the material is accepted by the initial carrier. Each 

shipping paper copy must include the date of acceptance by the carrier. The date 

on the shipping paper may be the date a shipper notifies the air carrier that a 

shipment is ready for transportation, as indicated on the air bill or bill of lading, as 

an alternative to the date the shipment is picked up or accepted by the carrier. 

Only an initial carrier must receive and retain a copy of the shipper's certification, 

as required by §172.204 of this subchapter. 

(2) Retain a copy of each notification of pilot-in-command, an electronic 

image thereof, or the information contained therein for 90 days at the airport of 

departure or the operator's principal place of business. 

(3) Have the information required to be retained under this paragraph 

readily accessible at the airport of departure and the intended airport of arrival for 

the duration of the flight leg. 

( 4) Make available, upon request, to an authorized official of a Federal, 

State, or local government agency (including an emergency responder(s)) at 

reasonable times and locations, the documents or information required to be 

retained by this paragraph. In the event of a reportable incident, as defined in 

§ 171.15 ofthis subchapter, make immediately available to an authorized official 

of a Federal, State, or local government agency (including an emergency 

responders), the documents or information required to be retained by this 

paragraph. 

(5) Retain a copy of the alternative written documentation when provided 

in accordance with §173.185(c)(4)(v)(B) of this subchapter or an electronic image 

thereof, or the information contained therein for 90 days at the airport of departure 

or the operator's principal place of business.· 

(d) The documents required by paragraphs (a) and (b) this section may be 

combined into one document if it is given to the pilot-in-command before 

departure of the aircraft. · 

B. Sanctions guidance 

FAA Order 2150.3B Appendix C sets for the penalty policy of the FAA.31 As a general 

matter, a sanction should be imposed that is a sufficient deterrent but not excessive, in order to 

31 Folsom's Air Service, Inc., FAA Order No. 2008-11, 2008 WL 4948488 (November 6, 2008). 

24 
comply with the underlying purposes of the Federal hazardous material transportation law and 

HMR. The FAA considers a variety of factors when determining an appropriate civil penalty, 

including: (I) the nature and circumstances of the violation; (2) the extent and gravity of the 

violation; (3) the person's degree of culpability; ( 4) the person's history of prior violations, if 

any; (5) the person's ability to pay thecivil penalty; (6) the effect on the person's ability to stay 

in business; and (7) other matters as justice may require 32 

Any determination of penalty should weigh whether the violation was inadvertent or 

deliberate, the private or public character of the violation, and the attitude of the violator. 33 The 

agency should also consider the respondent's size, particularly in determining the offender's 

ability to absorb the sanction. An appropriate civil penalty must reflect the totality of the 

circumstances surrounding the violations. Eastern Air Center, Inc., FAA Order No. 2008-3 

(January 28, 2008). Finally, the civil penalty should provide sufficient incentive to deter the 

respondent and similarly-situated entities from future violations. Folsom's Air Service, Inc., Id, 

p. 20. 

The FAA has the burden of justifying the amount of civil penalty sought.34 The FAA's 

proposed sanction is no more than a proposal or a recommendation to the ALJ35 The FAA must 

prove to the AU how it used the sanction guidance to arrive at its proposal36 The FAA must 

also prove the existence of aggravating factors and must show how it used aggravating or 

mitigating factors to adjust the suggested sanction. Evidence of swift comprehensive corrective 

action must be considered as a mitigating factor. Significant weight has been given to 

respondent's efforts to ensure that a violation will not reoccur

37 

The testimony of a credible, independent witness may be sufficient to prove financial 

hardship, even without supporting documentary evidence 38 

FAA Order 2150.3B states: 

When a single instance of noncompliance results in multiple violations of general 

and specific regulations involving the same or similar conduct, the FAA 

ordinarily does not compound the sanction to reflect the amount of sanction 

recommended in the table for each regulatory violation .... 39 

IfF AA enforcement personnel were simply to add the recommended amounts of penalty for each 

flight or day that constitutes a separate violation, the resulting sanction amount could be 

32 Id. See also Eastern Air Center, Inc., FAA Order No. 2008-3, 2008 WL 345386 (2008). 33 Pinnacle Airlines Inc., FAA Order 2009-0180, 2009 WL 4 796753 (December II, 2009). 

34 In The Matter of Phyllis Jones Luxemburg, 1994 WL 899676 (1994), citing In the Matter of Northwest Airlines, 

FAA Order No. 90-37 at 7 (November 7, 1990). 35 In the Matter of Eastern Air Center, Inc., FAA Order No. 2008-3, 2008 WL 345386 (2008). 36 In the Matter ofWarbelow's Air Ventures, Inc., FAA Order 2000-3, 2000 WL 298578 (2000). 37 In the Matter of American Air Network, Inc., FAA Order No. 2006-5, 2006 WL 465369 (2006). See also In the 

Matter of Airtran Airways, Inc., Docket No. FAA- 2010-0193, Initial Decision (June 23, 20 10). 36 In the Matter ojB!ue Ridge Airlines, FAA Order No. 99-15, 1999 WL 1279832 (1999). 39 FAA Order 2150.38, Chapter 7, 6 c. pages 7-10 and 7-11. 

25 
disproportionately harsh for the misconduct involved, in an average case. 

XI. Argument of the parties 

A. Violations 

Martinaire was charged with violations of 49 C. FR.: 

a. Section I75.33(a) (I) (49 C. FR.§ I75.33(a) (I) in that it accepted hazardous 

material aboard an aircraft for transportation by air and failed to provide the pilotin-command the proper shipping name, hazard class and identification number of 

the hazardous material aboard the aircraft. 

b. Section I75.33 (a) (I) (i) (49 C. FR.§ I75.33 (a) (I) (i) in that it accepted 

hazardous material aboard an aircraft for transportation by air and failed to 

provide the pilot-in-command the proper shipping name, hazard class, 

identification number and any additional description requirements provided in §§ 

172.202, and 172.203 of the hazardous material aboard the aircraft. 

c. Section 175.33(a) (7) (49 C. FR.§ I75.33(a) (7) in that it accepted hazardous 

material aboard an aircraft for transportation by air and failed to provide the pilotin-command the date of the flight. 

B. Testimony and evidence 

Martinaire admitted each of the allegations in the Complaint. 

Martinaire was a Group II carrier as defined in FAA Order 2150.3B: 

Group II is comprised of air carriers and other commercial operators that have an 

arrnual 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. 

The testimony from all witnesses was consistent that: most major carriers had NOPlCs 

prepared and provided to their flight crews; Martinaire's pilots received HazMat parcels from 

UPS or DHL, accompanied by UPS- or DHL-prepared tickets containing all of the data specified 

in the cited HMR's (except for flight number and specific location of the cargo within the 

aircraft); before departure Martinaire pilots called the NO PIC information into dispatch; dispatch 

personnel transcribed this information onto a NOPIC form and inserted the form into the "90-day 

file"; pilot copies of the NOPIC's were discarded after each flight; the dispatch copy of the 

NOPIC was retained for 90 days. 

There was no evidence or testimony that the FAA inspected any of the pilot generated 

NOPICs. 

26 
There was no evidence or testimony that Martinaire pilots involved did not receive nor 

have in their possession during any of the flights the information required by the regulations. 

The FAA did not allege and did not produce any evidence that pilot-in-command NOPIC's were 

in any way deficient or that the pilots in command did not possess required NO PIC information. 

There was no evidence or testimony that there was any regulatory authority, FAA 

handbook, order or other publicly available information which mandated that a NO PIC be 

prepared or given to first responders, nor be available to first responders. The testimony of the 

FAA's witnesses was to the contrary. 

The FAA's witness testified the FAA has never, ever sought civil penalties for NOPIC 

violations in excess of $200,000. 

C. Penalty 

1. FAA Position: 

The FAA argued that based on the totality of circumstances in this case a civil penalty of 

$206,550.00 was warranted and reasonable. The FAA presented testimony and evidence, 

consistent with policy guidance, showing the penalty was supported be evaluating the five (5) 

factors and assigning them appropriate weight. (64 Fed Reg. I9443 (Apr.21, 1999); FAA Order 

2150 38, Appendix C, FAA Sanction Guidance, Hazardous Materials Enforcement (October I, 

2007)). The FAA argued a penalty calculated in accordance with the FAA's policy guidance 

should stand, absent a showing of the Respondent's inability to pay, inability to continue to do 

business, or some other matter required by justice. 

Financial hardship was an affirmative defense that the respondent bore the burden of 

proving. In re TWA, FAA Order No. 1999-120; In re Dominion Concepts, Inc., FAA Order No. 

2005-4, I 0, n.l6 (Mar. I 0, 2005). 

The FAA argued it was entitled to substantial deference in establishing an appropriate 

civil penalty. The United States Court of Appeals for the District of Columbia Circuit in NL 

Industries, Inc. v. Department of Transportation, Federal Aviation Administration, 901 F.2d 141 

(1990), enunciated the standard by which to evaluate the reasonableness of a civil penalty 

assessed under the Federal hazardous material statute. The court held that the agency's "choice 

of a sanction is not to be overturned unless 'it is unwarranted in law' or 'without justification in 

fact."' NL Industries at p .144 (quoting Panhandle Cooperative Ass'n v. EPA, 771 F.2d 1149, 

1152 (8th Cir. 1985) (quoting Butz v. Glover Livestock Comm'n Co., 411 U.S. 182, 185-186, 93 

S.Ct. 1455, 1457-58,36 L.Ed. 2d 142 (1973)). Thus, the amount of civil penalty assessed in a 

particular case was a matter of administrative discretion. See, Beall Construction Co. v. 

Occupational Safety & Health Review Commission, 507 F.2d 1041, 1046 (8th Cir.l974); Tempo 

Trucking & Transfer Corp. v. Dickenson, 405 F. Supp. 506, 514 (E.D.N.Y. 197 5). 

2. Martinaire position 

27 
Excessive, unreasonable and unwarranted 

Martinaire argued the $206,550 Civil Penalty was excessive, unreasonable and 

unwarranted and no regulatory violation occurred. 

Citing the HMR, Martinaire argued the operator must provide the pilot-in-command with 

accurate and legible written information. It further argued nothing in that regulation, nor for that 

matter in any other regulation, FAA handbook, order or other publicly available information that 

mandated that a NO PIC be prepared or given to first responders. 

Martinaire pointed out that all the testimony was consistent and that the NOPICs 

inspected were prepared by dispatchers from information communicated to them by the pilots. 

The FAA did not know what the pilot NOPICs did or did not contain. 

Martinaire argued the two prior violations and the December 2013 inspection were not 

indicative of a systemic corporate culture guilty of regulatory disregard. Martinaire settled both 

cases without admission of liability or wrongdoing. Martinaire argued the totality of the facts 

did not establish a pattern of conduct of HMR violations. 

All witnesses testified that regardless of what was contained in the dispatch copies of the 

NOPlCs, the pilots had the UPS and DHL coupons containing the information required by the 

HMRs. 

Consistency of penalty 

Martinaire argued the penalty sought was inconsistent with prior cases and cited the 

following examples: 

Order Assessing Civil Penalty, FAA Case No. 2012SW700081: Atlantic Southeast 

Airlines, Inc., involving 4 separate shipment,s of oxygen generators, the last of which was 

intentionally concealed. The FAA originally proposed a civil penalty of $88,000, but 

settled for $77,000.00; 

Order Assessing Civil Penalty, FAA Case No. 2011 SW700155: Southwest Airlines, 

involving the improper handling of a battery powered wheelchair which resulted in the 

wet battery spilling. The FAA originally proposed a civil penalty of $42,500, but settled 

for $32,000.00; 

Order Assessing Civil Penalty, FAA Case No. 20l!SW700182: Ethiopian Airlines, 

involving the shipment of oxygen generators without shipping papers and which had not 

been packed and labeled. The FAA proposed a civil penalty of$195,000, but settled for 

$160,000.00; 

28 
Order Assessing Civil Penalty, FAA Case No. 2011SW700093: Federal Express 

Corporation, involving 9 acceptances of hazardous materials without shipping papers. 

The FAA originally proposed a .civil penalty of $32,500, but settled for $24,500.00; 

Order Assessing Civil Penalty, FAA Case No. 201 OSW700184: Southwest Airlines, 

involving the shipment of a fuel control unit which had not been drained and which 

contained fuel and the package had not been marked or labeled. The FAA originally 

proposed a civil penalty of $78,000, but settled for $62,000.00; 

Order Assessing Civil Penalty, FAA Case No. 2010SW700147: Express jet Airlines, Inc., 

involving that carrier's offering for shipment an oxygen compressor which was not only 

not marked to show that it was a hazardous material, but was marked to show that it was 

a non-hazardous material. The FAA originally proposed a civil penalty of $5,500.00, but 

settled for $5,000.00; 

Order Assessing Civil Penalty, FAA Case No. 2008SW700060: American Airlines, Inc., 

for seven NOPIC violations. The FAA originally proposed a civil penalty of $49,000.00, 

but settled for $41,500.00; 

Order Assessing Civil Penalty, FAA Case No. 2008SW7001 02: American Airlines, Inc., 

for six NOPIC violations. The FAA originally proposed a civil penalty of$63,600.00, but 

settled for $45,000.00; 

Order Assessing Civil Penalty, FAA Case No. 2008SW700123: American Airlines, Inc., 

for 13 NOPIC violations. The FAA originally proposed a civil penalty of $32,000, but 

settled for $22,500.00; 

Order Assessing Civil Penalty, FAA Case No. 2010SW700146: Continental Airlines, 

Inc., for eight NO PIC violations. The FAA had proposed a civil penalty of $35,850.00 

but settled for $32,000.00; and 

Order Assessing Civil Penalty, FAA Case No. 2007SW700311: World Airways, Inc., for 

one NOPIC violation involving the acceptance and carriage ofbiohazardous materials in 

the cabin of a passenger aircraft without shipping papers. The FAA had proposed a civil 

penalty of $32,500.00 but settled for $25,000.00. 

Mitigation 

As evidenced by Exhibit R-1 and the testimony of the FAA witnesses and Mr. 

Rusinowitz, Martinaire's response to the FAA inspection of July 8, 2011, and its implementation 

of corrective actions was swift, immediate and comprehensive, consistent with Order 2150.3 8, 

Page C-11. Specifically: 

1. Within three days of the audit and FAA out briefing, Martinaire revised, printed and 

disseminated a new NO PIC form; 

29 
2. Within days, Martinaire revised its HazMat training program for pilots and dispatchers; 

3. Within days, dispatchers underwent supplemental HazMat training; 

4. Within days, Martinaire's Chief Pilot sent a broadcast email to all pilots instructing 

them on how to prepare the revised NO PIC and then sent a follow-up broadcast email to 

them on July 26, 2011; and 

5. Martinaire implemented additional corrective actions, including daily auditing of 

NOPIC's, to ensure accuracy. 

FAA witnesses testified they were satisfied with these corrective actions and there was 

nothing more Martinaire could have done. 

With respect to the December 2013 inspection which revealed similar NO PIC 

discrepancies, the evidence was clear and uncontroverted that Martinaire devoted immediate and 

undivided attention to their corrective action, spent countless time and resources in developing a 

computer software program to remove any possibility or chance of human error from the NO PIC 

transcription/preparation process and did so at considerable expense to Martinairc. 

Ability to pay 

According to sworn testimony ofMartinaire's witness, Martinaire did not earn a profit in 

2012 or 2013 and was not earning a profit in 2014 as of the time of the hearing. The testimony 

was unrebutted. 

XII. Outstanding motions 

1. FAA's Motion to Add Exhibit 

The FAA filed a Motion to Add Exhibit dated June 11, 2014. The FAA seeks to 

supplement its exhibit with Special Agent Paul Klimas' statement, identified as exhibit 

100.01. The FAA argues Opposing Counsel was given a copy of these documents with 

Complainant's EIR disclosure, which ~as provided prior to the Informal Conference. 

Martinaire filed its objection on June 12,2014. 

A hearing was held June 18, 19 and 20,2014, inclusive, in, Dallas, TX 75202. The 

time for presentation and admission of evidence and testimony has passed. The motion will 

be denied. 

2. Martinaire outstanding motions 

a) Motion in Limine No. 1 -Motion to Preclude Complainant's Evidence Relating 

to Computation and/or Reasonableness of Sanction 

30 
In its Motion to Preclude Complainant'.s Evidence Relating to Computation and/or 

Reasonableness of Sanction Martinaire prays: 

1. Complainant be excluded from submitting any evidence as to how it 

determined the appropriateness of and/or calculated the subject sanction; and 

2. Complainant's counsel be ordered not to make any mention or reference thereto 

in opening statements, during trial, in argument or closing, and to direct persons 

under their control likewise to avoid such mention. 

Martinaire' s arguments were set forth in its Motion. It argued the gross disproportion 

between the Sanction Guidance tables, as well as any sanctions previously sought by the FAA 

against any other air carrier for similar violations, and the sanction sought in this matter, absent 

any evidence of how Complainant arrived at said amount, suggested that there was no basis for 

the amount sought. 

The FAA responded on May 27,2014, arguing in effect that Martinaire's prayer for relief 

violated case law and was directly contrary to the U.S. Department of Transportation Federal 

Aviation Administration National Policy Order 2150.3B ("FAA Order 2150.3B"). "In 

determining the amount of the penalty, the decisioJW1aker must consider the 'nature, 

circumstances, extent and gravity of the violation,' and with respect to the violator, 'the degree of 

culpability, any history of prior violations, the ability to pay, and any effect on the ability to 

continue to do business,' and 'other matters that justice requires"' (49 U.S. C.§ 5123 (c)). In 

addition, the FAA Order 2150.3B stated "in determining the sanction to be assessed, penalty 

criteria set forth in 49 U.S. C.§ 5123 must be considered." To make this determination, the Court 

must hear from the Federal Aviation Administration's ("FAA") witnesses who have 

investigated Martinaire's conduct in this case. The FAA witnesses were familiar with the factors 

set forth in 49 U.S. C.§ 5123(c) as they related to Martinaire's violation of the hazardous material 

regulations. Consequently, the FAA requested that the Court deny Martinaire's request for an 

Order as stated above because it was contrary to case law and the FAA's Order 2150.38. 

Examination of the record reveals the FAA submitted no evidence or testimony of how it 

determined the appropriateness of and/or calculated the subject sanction. The FAA's statements 

with respect to the penalty were primarily conclusions unsupported by the record, as set forth 

herein. The Motion will be denied. The objection will go to the weight given the FAA's 

argument on sanction. 

b) Motion in Limine No.2. -Motion to Preclude Testimony by Persons Not 

Previously Identified by Complainant and Complainant's Expert Witness and/or 

Opinion Testimony · 

In its Motion to Preclude Testimony by Persons Not Previously Identified by 

Complainant and Complainant's Expert Witness and/or Opinion Testimony dated May 29, 2014, 

Martinaire prayed we issue an Order precluding: 

31 
I. Testimony of persons not previously identified by Complainant in prehearing 

discovery; 

2. Messrs. Klimas and Buchanan from testifying in Complainant's case in 

chief with respect to the facts and violations alleged in the Complaint, 

as those facts and violations have been deemed established under the 

Order Granting in Part and Denying in Part Complainant's Motion for 

Decision; 

3. Messrs. Klimas and Buchanan from testifying in Complainant's case in 

chief with respect to the appropriateness or reasonableness of the sanction; 

4. Expert witness testimony; and 

5. Opinion testimony. 

In its response received May 27,2014, the FAA averred it intended to call both of these 

witnesses to testify about the civil penalty factors listed in 49 US. C. § 5123 (c) as it pertained to 

the Martinaire's hazardous material violations. These criteria included 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. 

Two witnesses testified on behalf of the FAA Bryan Buchanan and Paul Klimas. Both 

were identified in discovery and deposed. The court finds their testimony was relevant to the 

issues before the court. The Motion will be denied. The objection will go to the weight given 

the FAA's argument on sanction. 

c) Motion in Limine No. 3 -Motion to Preclude Testimony that HMR Section 

175.33 Has Been Promulgated and Serves to Assist First Responders 

In its Motion to Preclude Testimony that HMR Section 175.33 Has Been Promulgated 

and Serves to Assist First Responders dated May 14, 2014, Martinaire prayed we prohibit: 

1. Any testimony or other evidence as to the. purpose of the NO PIC other than those 

specifically enumerated in HMR Section 175.33; and 

2. Preclude the offering or receipt of any testimony or other evidence that 

NOPIC's are required to assist first responders in the event of an aircraft mishap. 

The FAA, in its response dated May 23,2014, stated the overall purpose of the Federal 

Hazardous Material Transportation Law and the Hazardous Material Regulations was safety as 

forth in the statute. In addition, the FAA averred, the regulation sought to protect not only the 

pilot-in-command, but to insure safety for anyone whether the pilot, a person on the ground, or a 

first responder. This goal was consistent with the regulatory purpose of the hazardous material 

regulatory scheme-safety. 

The statute speaks for itself and will be reviewed and applied accordingly. 

32 
The Motion will be denied. The objection will go to the weight given the FAA's 

argument on sanction. 

XIII. Analysis of Evidence, Testimony and Law 

As a result of inspections in 2011 and 2013, Martinaire was charged with the 

following violations of 49 C.F.R.: 

a. Section 175.33(a) (I) (49 C.F.R. § 175.33(a) (1) in that it accepted hazardous 

material aboard an aircraft for transportation by air and failed to provide the pilotin-command the proper shipping name, hazard class and identification number of 

the hazardous material aboard the aircraft. 

b. Section 175.33 (a) (I) (i) (49 C.F.R. § 175.33 (a) (1) (i) in that it accepted 

hazardous material aboard an aircraft for transportation by air and failed to 

provide the pilot-in-command the proper shipping name, hazard class, 

identification number and any additional description requirements provided in 

§§172.202, and 172.203 of the hazardous material aboard the aircraft. 

c. Section 175.33(a) (7) (49 C.F.R. § 175.33(a) (7) in that it accepted hazardous 

material aboard an aircraft for transportation by air and failed to provide the pilotin-command the date of the flight. 

Martinaire admitted the allegations set forth in the complaint. We found the violations 

alleged. 

The FAA argued that the penalty requested of$206,000 was not a high civil penalty, 

because air carriers are obligated to perform their services with the highest possible standard of 

care. 

Martinaire had two prior violations. One violation occurred because the pilot did not 

have NO PIC forms to fill out. The second violation occurred when a pilot, unbeknownst to 

Martinaire, purchased cleaning fluid to clean the plane, then stowed it with his personal 

baggage under the assumption the cleaning fluid need not be declared. In December 2013 the 

FAA conducted another inspection which disclosed additional discrepancies with NOP!Cs. 

The only records reviewed were the dispatch copies of the NOP!Cs, which all witnesses 

testified were generated from information provided by the pilots, but filled out by the 

dispatchers. None of the pilot NOPIC forms were inspected. 

With the exception of the dispatch NO PIC forms, there were no other violations found 

during the inspections ofMartinaire. Martinaire was cooperative and responsive to FAA's 

concerns with the NOPICs. The FAA had a cooperative working relationship with Martinaire. 

Once notified of the NO PIC discrepancies, Martinaire took swift, comprehensive 

33 
corrective action. The FAA was satisfied with Martinaire's responses to the July 2011 and 

2013 investigations. There was nothing Martinaire should have done that it did not do in 

responding to the investigations. Martinaire was developing a computer program to deal with 

the NOPICs at considerable expense. 

The FAA argued these events evidence a systemic corporate culture guilty of regulatory 

disregard. We disagree, especially in light ofMartinaire's swift and immediate actions to 

correct the problems identified. 

There were no publicly available documentation, opinions, anything which stated that 

the NOP!Cs were to be used for assisting emergency responders. 

Over the past seventeen years (17), the average civil penalty that was sought by the 

FAA in NOPIC cases was somewhere between $30,000 and $50,000. The FAA has never 

sought a civil penalty for NO PIC violations in excess of $200,000. 

As set forth elsewhere, in determining the amount of a civil penalty under this section, 

the Secretary shall consider--

(I) The nature, circumstances, extent, and gravity of the violation 

Martinaire was charged with and found to have violated the regulations. The 

FAA failed to inspect any pilot NOP!Cs. Testimony and evidence was that the dispatch 

records inspected were generated from information communicatedby the pilot to the 

dispatcher, then transcribed by the dispatcher onto a copy of the NOPIC maintained in a 

90cday folder at the dispatch office. The dispatch records were at best second hand 

information. 

49 C.F.R. § 175.33 requires the operator of an aircraft to provide the pilot-incommand with accurate and legible written information. The regulations sets forth no 

additional requirements or uses for the information. There was no testimony and/or 

evidence that pilots-in-command did not have the information required by the regulation. 

(2) With respect to the violator, the degree of culpability, any history of prior 

violations, the ability to pay, and any effect on the ability to continue to do 

business 

The violations were admitted to by Martinaire. The history of prior violations was not 

evidence of a systemic corporate culture guilty of regulatory disregard, especially in light of 

Martinaire' s swift and immediate actions to correct the problems identified and lack of 

violations with respect to other records inspected. We make no conclusions with respect to 

Martinaire' s ability to continue in business. 

It was uncontroverted that Martinaire failed to make a profit in 2012 and 2013 and 

had made no profit as of the date of the hearing in 2014. It was uncontroverted that 

34 
Martinaire had fewer aircraft and employees that at the time of the 2011 violations. 

(3) Other matters that justice requires. 

The FAA offered no rebuttal to Martinaire's assertions that the penalty requested was 

excessive, unreasonable and unwarranted. There was no evidence and/or testimony to suggest 

that the NOPIC discrepancies were anything other than transcription errors. There was no 

evidence and/or testimony that the pilots did not have any and all information required by the 

regulations. The evidence and testimony was that Martinaire took swift, comprehensive correct 

action to correct the NO PIC discrepancies. The unrebutted evidence of Martinaire was that the 

violations were inadvertent, not deliberate. 

The FAA argued the lower end of the penalty range was $5,000, the higher end $16,200 

and the midpoint $10,600. There were seventeen (17) violations alleged. The FAA then 

argued a total penalty of $206,500 was therefore warranted and reasonable. The FAA failed to 

produce any testimony and/or evidence of how it arrived at the figure of $206,500. Dividing 

$206,500 by the number of violations results in a figure of $12,150 per violation. We are left to 

speculate how the figures of $12,150 and/or $206,500 were determined. 

Additionally, all seventeen (17) violations were related to NOPIC discrepancies. While 

the informational discrepancies varied from NO PIC to NO PIC, the testimony and evidence 

demonstrated that the causation for the NOPIC discrepancies was the result of pilots obtaining 

coupons from DHL/UPS upon delivery of shipments, reviewing them, then calling the 

information into Martinaire dispatchers who transcribed what they heard or thought they heard 

onto a "duplicate" copy of the NO PIC located at Martinaire. The "duplicates" were meant to be 

"a copy exactly like an original" but were only as good as the information the dispatcher heard 

and/or transcribed onto the form. The violations all related to the same procedural/operational 

error related to NO PIC information being called into the dispatcher who transcribed an oral 

message onto a form. Martinaire had one defect in it operational procedures which generated 

all of the violations. 

While a penalty calculated in accordance with the FAA's policy guidance should stand, 

absent a showing of the Martinaire's inability to pay, the evidence and testimony did not 

support the penalty requested. While the FAA was entitled to substantial deference in 

establishing an appropriate civil penalty, we cannot ignore our role to evaluate the testimony 

and evidence. 

XIV. FINDINGS OF FACTS: 

After consideration and review of all the evidentiary facts, testimony and evidence 

herein, by a preponderance of the evidence standard, we make the following findings of fact: 

I. All the witnesses for both parties were credible. 

35 
2. Martinaire was a Part 135 cargo carrier; had less than ninety (90) employees; 

operated thirty-four (34) aircraft, of which it owned twenty-one (21); was a 

limited liability company, having three (3) members of the LLC. 

3. In 2011, Martinaire earned in the neighborhood of $200,000 in profit; Martinaire 

did not earn a profit in 2012 or 2013; Martinaire had not earned a profit as of the 

date of the hearing in June 2014. 

4. Over the three year period prior to the date of the hearing the number of people 

employed by Martinaire declined and the number of aircraft operated by 

Martinaire had declined. 

5. Of the thirty-four (34) aircraft operated by Martinaire, thirty-one (31) were 

Cessna Caravans, which held approximately 3,000 pounds of cargo, based on the 

average volume of a UPS or a DHL shipment, about 450 cubic feet of cargo; were 

flown by one pilot and had one engine. The other aircraft were Beech 1900 twinengine turboprop aircraft that were flown by one pilot and could hold 

approximately 4,500 pounds of cargo. 

6. Martinaire was classified as a Group II carrier. 

7. The NO PIC forms maintained in the dispatch 90-days folder contained numerous 

discrepancies. 

8. Martinaire took swift, comprehensive, immediate corrective action. 

9. There was no testimony and/or evidence that pilots-in-command did not have the 

information required by the regulation. 

I 0. The history of prior violations was not evidence of a systemic corporate culture 

guilty of regulatory disregard. 

11. Martinaire admitted to seventeen (17) violations. 

12. The seventeen (17) numerous inadvertent, multiple violations resulted from 

a single act or omission, i.e., NOPIC procedural defects (the PIC orally 

transmitting information from coupons to a dispatcher who transcribed what 

he/she heard or thought they heard on to a form). 

13. Martinaire demonstrated a good cooperative attitude dealing with the FAA. 

14. The FAA failed to prove the existence of aggravating factors other than the 

citation of seventeen (17) violations for the same conduct. 

15. The FAA failed to demonstrate how it used the sanction guidance to arrive at its 

proposed penalty. 

16. The FAA failed to demonstrate how its proposed civility penalty was appropriate 

to the alleged violation. 

17. The FAA failed to give adequate weight to matters in mitigation of the penalty 

requested. 

18. The penalty requested herein was in substantial deviation from past penalties 

requested for similar violations. 

19. Precedent dictates that a fine of$206, 550.00 would be an excessive penalty in the 

circumstances of this case. 

20. A penalty of$12,150 is more commensurate with the totality of the 

circumstances, including the nature, extent and gravity of the violation, degree of 

culpability, history of prior violations, financial situation, ant other matters as 

justice may require, including aggravating and mitigating factors. 

36 
21. We find the FAA failed to carry his burden of proof with respect to the amount 

of penalty requested. 

WHEREFORE, evidence and testimony having been heard and considered it be and is 

hereby ORDERED as follows: 

a. The FAA's Motion to Add Exhibit dated June 11, 2014, and Martinaire's 

Response and Objection dated June 12,2014, having been read and considered, 

the FAA's Motion to Add Exhibit be and is hereby DENIED; and 

b. Martinaire's Motion to Preclude Complainant's (FAA's) Evidence Relating to 

Computation and/or Reasonableness of Sanction and the FAA's response thereto 

having been read and considered, Martinaire's Motion be and is hereby 

DENIED; and 

c. Martinaire' s Motion to Preclude Testimony by Persons Nat Previously 

Identified by Complainant and Complainant's Expert Witness and/or Opinion 

Testimony and the FAA's response thereto having been read and considered, 

Martinaire's Motion be and is hereby DENIED; and 

d. Martinaire's Motion to Preclude Testimony that HMR Section 175.33 Has Been 

Promulgated and Serves to Assist First Responders having been read and 

considered and the FAA's response thereto having been read and considered, 

Martinaire's Motion be and is hereby DENIED; and 

e. Martinaire be and is hereby assessed a penalty in the amount of $12, !50. 

Richard C. Goodwin 

U.S. Administrative Law Judge 

Attachment- Service List 

37 
SERVICE LIST 

ORIGINAL & ONE COPY 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, DC 20591 

Attention: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building-Suite 2Wl 0001 

ONE COPY 

Michael L. Dworkin, Respondent's Counsel 

Michael L. Dworkin and Associates Law Offices 

465 California Street, Suite 210 

San Francisco, CA 94104-1808 

TEL: 415-421-2500 

FAX: 415-421 ., 

James Archier, Complainant's Counsel 

Agency Attorney, Office of the Regional Counsel 

Southwest Region 

Federal Aviation Administration 

2601 Meacham Blvd., Suite 6E 

Fort Worth, TX 76137 

TEL: 817-222-5074 

FAX: 817-222-5092 

The Honorable Richard C. Goodwin, Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E. (Ell-310) 

Washington, DC 20590 

TEL: 202-366-5121 Staff Assistant 

FAX: 202-366-7536 

FDMS No. FAA-2013-0040 

(Civil Penalty Action) 

1 Service was by U.S. MaiL For service in person or by expedited courier, use the fOllowing address: Federal 

Aviation Administration, 600 Independence A venue, S. W ., Wilbur Wright Building Suite 2W I 000, Washington, 

DC 20591, Attention: Hearing Docket Clerk, AGC-430. 

38