U. S. Department ofTransportation Federal Aviation Administration 

## MAR 11 2016 Office of the Chief Counsel

CERTIFIED MAIL-RETURN RECEIPT REQUESTED Hearing Docket Federal Aviation Administration 800 Independence Avenue, SW Washington, D.C. 20591 ATTN: Hearing Docket Clerk, AGC-430 Wilbur Wright Building, Room 2Wl000 Re: In the Matter ofBEM Systems, Inc. Case No. 2015NM730029 Dear Sir or Madam: Enforcement Division Western Team 222 W. 7th Avenue Box 14 Anchorage, Alaska 99513-7587



## MAR 17 20!6



## ii\IG DOC

On March 3, 2016, we were notified that on March 2, 2016, BEM Systems, Inc., requested a hearing in the above-referenced case. Enclosed are the original and one copy ofthe Complaint in the above-referenced proceeding as required by§ 13.208(a) ofthe Rules ofPractice in FAA Civil Penalty Actions, 14 C.F.R. Part 13, Subpart G. By copy ofthis letter, the Complaint is being served on Respondent as required by § 13 .208(b). The FAA requests that the hearing inthis matter be held inAnchorage, Alaska, which is where the incident occurred. The FAA expects that the hearing will last one day. Please address all communications for the FAA to Glenn H. Brown, Enforcement Division, Western Team, 222 West 7thAvenue, Box 14, Anchorage, Alaska 99513-7587. Peter J. Lynch Assistant ChiefCounsel

for Enforcement By: Glenn H. Brown Enforcement Division, Western Team Enclosures cc: Mark Murset, CFOInthe Matter of:

BEM Systems, Inc. Judge Not Assigned U.S. DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION
FAA DocketNo. Unassigned FAA Case No. 2015NM730029

COMPLAINT The Complainanthereby files its Complaint, pursuantto Rule 208 ofthe Rules of Practice in FAA Civil Penalty Actions (14 C.F.R. § 13.208), and states as follows: I. Respondent, BEM Systems, Inc., was advised through a Notice ofProposed Civil Penalty dated October 21, 2015, and by a Final Notice ofProposed Civil Penalty dated, February 22, 2016, that the FAA proposed to assess a civil penalty in the amount of$19,400. By letter dated March 2, 2016, Respondent requested a hearing. The Enforcement Division, Western Team received Respondent's writtenrequest for a hem·ing on March 3, 2016. II. 1. On or about April 21, 2015, Respondent knowingly offered to Alaska Airlines a ninepiece, non-bulk shipment for transportation by air from Anchorage, Alaska, to Deadhorse, Alaska.
2. The above shipment was assigned Air Wr.ybill No. 027-1464 4840.3. At the time Respondent offered the above shipment to Alaska Airlines, it declared thatthe shipment consisted of"Sampling Equip" and that it did not contain dangerous goods.
4. Included inthe above shipment were six 15-ounce aerosol canisters ofKrylon and Aervoe marking paints and a cylinder ofcalibration gas.
5. Each ofthe above aerosol canisters ofmarking paint is classified as a hazardous material under§ 172.101 ofthe United States Department ofTransportation Hazardous Materials Regulations (HMR), 49 C.F.R. Chapter I, Subchapter C (Parts 171-80). Its proper shipping name is "Aerosols, flammable." It is inhazard class 2.1 (Flammable gas) and has an assigned identification number ofUN1950.
6. The above cylinder ofcalibration gas is classified as a hazardous material under the HMR. Its proper shipping name is "Compressed gas, n.o.s." It is in hazard class 2.2 (NonFlammable Gas) and has an assigned identification number ofUN1956.
7. Atthe time it offered the above shipment, Respondent did not provide to Alaska Airlines a Shipper's Declaration for Dangerous Goods.
8. At the time Respondent offered the above shipment, the shipment was not accompanied by a shipping paper that contained an emergency response telephone number that met the requirements of§ 172.604 ofthe HMR. 29. At the time Respondent offeredthe above-described hazardous matetial for transportation by air, there was no shipping description ofeachhazardous material onthe shippingpaper thatincluded the identification numberprescribed for the material as shown in Column (4) of the § 172.102 table, the proper shipping name as prescribed for the material in Column (2) of the § 172.102 table, the hazard class or division numberprescribed for the material as shown in Column (3) ofthe 

### § 172.102 table, or the total net mass perpackage.
10. Atthe time Respondent offeredthe above-described hazardous materials for transportationby air, Respondent hadnot entered on the shipping paper a statement indicatingthat the shipment is withinthe limitations prescribed for either passenger and cargo aircraft or cargo aircraft only.
11. At the time Respondent offered the above-described hazardous materials for transportationby air, the shipping paper did not include the certification containedin § l72.204(a)(l) ofthe HMR, the declaration contained in§ l72.204(a)(2) ofthe HMR, the certification contained in§ l72.204(c)(l) ofthe HMR, orthe additional statement specified in§ l72.204(c)(3) ofthe HMR.
12. Atthe time Respondent off<.:red the above-described hazardous materials to Alaska Airlines for transportationby air, Respondent did not provide AlaskaAirlines With two copies ofthe certificationrequired by§ 172.204 ofthe HMR. 313. Atthe time Respondent offered the above-described hazardous materials for transportation, the shipment was not marked or labeled in any manner that indicated the hazardous nature ofits contents.
14. At the time Respondent offered the above-described hazardous materials for transportation, eachpackage containing hazardous material was not marked with the proper shipping name and the assigned identification number (preceded by "UN," "NA," or "ID," as appropriate) ofeach hazardous material contained in it.
15. At the time Respondent offered the above-described hazardous materials for transportation, no "Flammable Gas" or "Non-Flammable Gas" label, as appropriate, was printed on or affixed to the surface ofthe package containing it.
16. At the time Respondent offered the above-described hazardous materials for transportation, no emergency response information conforming to subpart G ofpart 172 of the HMRwas immediately available at all times the hazardous material was present, and such information, including the emergency response telephone number, was not immediately available to any personwho, as a representat:ve ofa Federal, State, or local govermnent agency, responds to anincident involving a hazardous material or is conducting an investigation that involves a hazardous material.

4III. 1. Byreason ofthe foregoing, Respondent violated: (a) 49 C.F.R. § 171.2(e) inthat Respondent offered a hazardous material for transportation in commerce within the United States when each material was not properly classed, described, packaged, marked, labeled, and in condition for shipment as required or authorized by applicable requirements ofthe HMR, or an exemption, special permit, approval, orregistration issued under the HMR, or Subchapter A of Chapter 1 ofTitle 49, Code ofFederal Regulations. (b) 49 C.F.R. § 172.200(a) inthat Respondent offered a hazardous material for transportation without describing the hazardous material onthe shippingpaperin the manner required by subpart C ofpart 172 ofthe HMR. (c) 49 C.F.R. 

### § 172.20I(d) inthatRespondent offered a hazardous material for transportation whenthe shipping p<.per did not contain any emergencyresponse telephone numberthat metthe requirements of§ 172.604 ofthe HMR. (d) 49 C.F.R. § 172.202(a) in that Respondent offered a hazardous material for transportation by air when the shipping description ofthe hazardous material onthe shippingpaper did not include the identification numberprescribed for the material as shownin Column (4) ofthe§ 172.101 table, the proper shipping name prescribed for the material in Column (2) ofthe § 172.101 table, the hazard class or division number 5prescribed for the material as shownin Column (3) ofthe § 172.101 table, or the total net mass perpackage. (e) 49 C.P.R. 

### § 172.203(±) inthat Respondent offered a hazardous material for transportation by air without including in the shipping paper a statement indicating that the shipment is within the limitations prescribed for either passenger and cargo aircraft or cargo aircraft only. (f) 49 C.P.R. § 172.204(a) in that Respondent offered a hazardous material for transportation when the shipping paper did not include the certification contained in 

### § 172.204(a)(l) ofthe HMR, the declaration contained in§ 172.204(a)(2) ofthe HMR, or the certification contained in § 172.204(c)(1) ofthe HMR. (g) 49 C.P.R.§ 172.204(c)(2) in that Respondent offered a hazardous material to an aircraft operatorfor transportation by air and did not provide two copies ofthe required shipper's certification. (h) 49 C.P.R. § 172.204(c)(3) inthat Respondent offered a hazardous material for transportation by air without including in the certification required by § 172.204 of the HMRthe following statement: "I

# c**~clare** that all ofthe applicable air transportation requirements have been met."

6(i) 49 C.F.R. § 172.300(a) inthat Respondent offered a hazardous material for transportation whenthe package containing it was not marked in the manner required by subpart D ofpart 172 ofthe HMR. G) 49 C.F.R. § 172.30l(a)(l) inthat Respondent offered for transportation a hazardous material in a non-bulk package when the package was not marked with the proper shipping name andidentification number (preceded by "UN," "NA," or "ID," as appropriate) for the material as shown inthe § 172.10I table. (k) 49 C.F.R. § 172.400(a) in that Respondent offered for transportation a hazardous material 

### ina non-bulkpackage when the package was not labeled with labels specified for the material inthe 

### § 172.101 table and in subpart E ofpart 172 ofthe HMR. (I) 49 C.F.R. § 172.600(c) inthat Respondent offered a hazardous material for transportationwhenthe emergency response information conforming to subpart G ofpart 172 ofthe HMRwas not immediately available at all times the hazardous material was present, and such information, including the emergency response telephone number, was not immediately available to any person who, as a representative ofa Federal, State, or local government agency, responds to an incident involving a hazardous material oris conducting an investigation that involves a hazardous material. 7(m) 49 C.F.R. § 172.604(a) in that Respondent offered a hazardous material for transportation and failed to provide an emergencyresponse telephone number, including the area code orinternational access code, for use in the event ofan emergencyinvolving the hazardous material.
IV. 

### I. Pursuant 49 U.S.C. § 5123 (a)(!), Respondent is liable for a civil penalty ofup to $75,000 for each violation ofthe regulations. For violations resulting in death, serious illness, or severe injury to any person, or substantial destruction ofproperty, the maximum civil penalty is $175,000 for each violation, and for training violations, the minimum civil penalty is $450 for each violation.
2. Underthe facts and circumstances ofthis case, a civil penalty of$19,400 is appropriate for the violations in

### this case.

8WHEREFORE, the Federal Aviation Administration, bycounsel, respectfully requests that the administrative lawjudge enter an order that Respondent be assessed a civil penalty inthe amount of$19,400.

Date: __ 3____;_/_J 

# o_(_/ b__

9 Respectfully submitted, Peter J. Lynch Assistant ChiefCounsel

For Enforcement By: Glenn H. Brown Enforcement Division, Western Team 222 W. 7'h Avenue #14 Anchorage, AK 99513 Email: Glenn.Browniaifaa.gov Telephone: (907) 271.5271 (direct) (907) 271-2800 (fax)CERTIFICATE OF SERVICE Re: BEM Systems, Inc. CaseNo. 2015NM730029 FAA DocketNo. To Be Assigned I hereby certifytbat onthis date I served a copy oftbe FAA's Complaint and a copy oftbe foregoing letter by placing them in the United States Mail, postage-prepaid, certified mail, retnm receipt requested, addressed as follows: BEM Systems, Inc. ATTN: Mark Murset, CFO 100 Passaic Avenue Chatham, NJ 07928 I further certify tbat on this date I have served the original ofthe foregoing letter and the original and one copy ofthe FAA's Complaintby postage-prepaid, certified mail, retnm receipt requested, and facsimile, addressed as follows: Hearing Docket Federal Aviation Administration 800 Independence Avenue, SW Washington, D.C. 20591 ATTN: Hearing Docket Clerk, AGC-430 Wilbur Wright Building, Room 2Wl000

Office ofthe Regional Counsel 222 West 7th Avenue #14 Anchorage, Alaska 99513-7587

10

# .qr~**/~£!{)16** Date