U.S. Department 

of Transportation 

Federal Aviation 

Administration 

Southern Region 

Office of the Regional Counsel 

P.O. Box 20636 

Atlanta, Georgia 30320 

(404) 305-5200 

(404)305-5223 FAX 

RECEIVED 

JUN i ^ 2(H1 

HEARING DOCKET 

4UK 0 3 2011 

CERTIFIED - RETURN RECEIPT REQUESTED 

Hearing Docket Clerk 

FAA, AGC-430, Suite 2W1000 

Wilbur Wright Building 

800 Independence Avenue, SW 

Washington, DC 20591 

Re: In the Matter of Covermark US AI ^Cil\- t^lWR-CM^' (5^S l 

FAACaseNo.2010SO700318 / ^^ ^ ^^^l^^S S 

Enclosed herewith please find a copy of a request for hearing and the original and one copy of 

the Complaint in the above-referenced proceeding. 

The FAA requests that the hearing in this matter be held in the Louisville, Kentucky area, and 

expects that the hearing will last one day. 

Please address all communications for the FAA to the undersigned, at: 

Federal Aviation Administration 

Office of the Regional Counsel, ASO-7 

Southern Region 

P.O. Box 20636 

Atlanta, Georgia 30320 

Telephone: (404) 305-5200, facsimile (404) 305-5223. 

; •• ) -T -

Sincerely, 

T3 

C J 

CD 

GERALD A. ELLIS 

Attorney 

Office of the Regional Counsel 

Enclosures 
Keith Roberts 

Roberts Proprietaries, Inc. 

180 West 80* St. 

New York, NY 10024 

917-441-8642 keithofrpi(gearthlink.net 

5/25/11 

Attn: Hearing Docket Clerk, AGC-430 

Federal Aviation Administrtion 

800 Independence Ave. SW 

Wilbur Wright Building 

Suite 2W1000 

Washington, DC 20591 

Re:2010SO700318 

Sirs, 

Having received a Final notice of Proposed Civil Penalty dated May 20 assessing 

a fine of $10,000,1 hereby request a Hearing on this matter. I note that the 

address given in that Notice for requesting a hearing fails to provide a zip code. 

Keith Roberts 

President 

Roberts Proprietaries, Inc. 

917-441-8642 

cc: Mr. Gerald A. Jennings 

Office of the Regional Counsel 

PO Box 20636 

Atlanta, GA 30320 

nl E (E E D W E 

JUN 1 2011 

FAA, REGIONAL COUNSEL 

SOUTHERN REGION 

fil 
U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

FEDERAL AVIATION ADMINISTRATION 

FEDERAL AVIATION ADMINISTRATION, 

Complainant, 

vs. 

Covermark USA 

Respondent. 

FAA Docket No. 

Judge 

JUDGE NOT YET ASSIGNED 

COMPLAINT 

The Federal Aviation Administration (FAA), by counsel, hereby files its Complaint, 

pursuant to Rule 208 of the Rules of Practice (14 C.F.R. 13.208), and states as follows: 

I. 

1. On May 20, 2011, Respondent, Covermark USA was advised through a Final 

Notice of Proposed CiviUenalty that the FAA proposed to assess a civil penalty in the amount 

of $10,000. On May 25, 2011, the Agency Attorney received a written request for a hearing 

from the Respondent. 

II. 

2. On or about April 23, 2010, Covermark knowingly offered to United Parcel 

Service (UPS) a one-piece shipment consisting of a fiberboard box containing hazardous 

materials for transportation by air. 

3. The above-mentioned shipment was assigned UPS 3-Day Select tracking 

number/air waybill number IZ 063 960 12 0072 0603. The shipment was offered by Covermark 

USA, 157 Veteran's Drive, Suite D, Northvale, New Jersey 07647, for transportation to the 

consignee, 75 Nonohe Place, Wahiawa, Hawaii 96786. 

4. At all times mentioned herein, the above-mentioned shipment was not 

accompanied by a Shipper's Certification or Declaration of Dangerous Goods. 
5. On or about April 23, 2010, the above-mentioned shipment was flown on a 

regularly scheduled UPS cargo flight in air transportation to the UPS sort facility in Louisville, 

Kentucky. 

6. On or about April 24, 2010, ground-handling persoimel at the UPS sort facility 

discovered the above-mentioned shipment leaking and exhibiting a stain. 

7. The above-mentioned fiberboard box contained one 8-oz. plastic container "CM 

Beauty Super Clean Toner" (with plastic valve/screw-top lid). 

8. Further investigation showed that approximately 7 ounces of the above-described 

material had leaked into and through the fiberboard container. 

9. (a) "CM Beauty Super Clean Toner" is classified as a hazardous material 

under the Department of Transportation Hazardous Materials Regulations (HMR) (49 C.F.R. 

§ 172.101). 

(b) The proper shipping name of the material is Ethanol Solution. It is in 

Hazard Class 3 (Flammable Liquid), and has an assigned identification number of UN1170. The 

proper label is FLAMMABLE LIQUID. 

10. Covermark offered the above-described shipment of hazardous material for 

transportation by air without shipping papers that included: 

(a) the assigned identification number prescribed for each hazardous material; 

(b) the proper shipping name prescribed for each hazardous material; 

(c) the hazard class prescribed for each hazardous material; 

(d) the packing group prescribed for each hazardous material; 

(e) the total net mass per package of each hazardous material; and, 

(f) the number and type of packages contairang hazardous material. 

11. Covermark offered the above-described shipment of hazardous material for 

transportation by air and failed to: 

(a) certify that the materials were in accordance with the HMR (49 C.F.R. §§ 

171, et seg.) by printing on the shipping papers the certification set forth in § 172.204(a)(1), 

172.204(a)(2), or § 172.204(c) of the HMR; 

(b) prepare the required certifications in duplicate; and, 

(c) add to the certification required in this section the following statement: 
"I declare that all of the applicable air transport requirements have 

been met." 

12. Covermark offered the above-described shipment of hazardous materials for 

transportation by air when: 

(a) the outer container was not marked with the proper shipping name of each 

hazardous material contained therein; 

(b) the outer container was not marked with the assigned identification 

number of each hazardous material contained therein; 

(c) the outer container was not marked with standard orientation markings (as 

prescribed in 49 C.F.R. §172.312(a)) on two opposite vertical sides of the package with the 

arrows pointing in the correct upright direction; and 

(d) a "FLAMMABLE LIQUID" label was not affixed to the outer container. 

13. Covermark offered the above-described shipment of hazzirdous material for 

transportation by air and failed to make emergency response information available for use at all 

times the hazardous material was present. 

14. Covermark offered the above-described shipment of hazardous material for 

transportation by air and failed to make an emergency response telephone number immediately 

available to the appropriate official person designated to respond to an incident involving a 

hazardous material, or who was conducting an investigation involving a hazardous material. 

15. Covermark offered the above-described shipment of hazardous material for 

transportation by air and failed to ensure that each of its hazmat employees was trained in 

accordance with the prescribed requirements as set forth in Section 172.704. 

16. Covermark offered the above-described shipment of hazardous material for 

transportation by air when the packaging was not designed, constructed, maintained, filled, its 

contents so limited, and closed, so that under conditions normally incident to transportation, 

there would be no identifiable release of hazardous material to the environment. 

17. Covermark offered the above-described shipment for transportation by air and 

failed to use stoppers, corks, or other such friction-type closures that were not secure and 

leakproof 
III. 

18. By reason of the above, Covermark USA violated the following Department of 

Transportation Hazardous Materials Regulations (Title 49 of the Code of Federal Regulations): 

a. Section 171.2(e) in that Covermark offered or transported a hazardous material 

for transportation in commerce when the hazardous material was not properly classed, described, 

packaged, marked, labeled, and in condition for shipment as required or authorized by appUcable 

requirements of this subchapter, or an exemption, approval, or registration issued under this 

subchapter or under subchapter A of this chapter. 

b. Sections 172.200(a) and 172.202(a)(1) in that Covermark offered a hazardous 

material for transportation and failed to describe the hazardous material on shipping papers 

including the identification number prescribed for the material as shown in Column 4 of the § 

172.101 Table, in the manner required by this subpart. 

c. Sections 172.200(a) and 172.202(a)(2) in that Covermark offered a hazardous 

material for transportation and failed to describe the hazardous material on shipping papers 

including the proper shipping name prescribed for the material as shown in Column 2 of the § 

172.101 Table. 

d. Sections 172.200(a) and 172.202(a)(3) in that Covermark offered a hazardous 

material for transportation and failed to describe the hazardous material on shipping papers 

including the hazard class or division number prescribed for the material as shown in Column 3 

ofthe§ 172.101 Table. 

e. Sections 172.200(a) and 172.202(a)(4) in that Covermark offered a hazardous 

material for transportation and failed to describe the hazardous material on shipping papers 

including the packing group in Roman numerals, as designated for the hazardous material in 

Column 5 of the § 172.101 Table. 

f Sections 172.200(a) and 172.202(a)(6) in that Covermark offered a hazardous 

material for transportation by aircraft and failed to describe the hazardous material on shipping 

papers showing the total mass per package, unless a gross mass is indicated in Columns (9A) or 

(9B) of the, § 172.101 Table in which case the total gross mass per package must be shown; or, 

for Class 7 materials, the quantity of radioactive must be shown by activity. 

g. Sections 172.200(a) and 172.202(a)(7) in that Covermark offered a hazardous 

material for transportation and failed to describe the hazardous material on shipping papers 

indicating the number and type of packages (for example, "12 drums"). 

h. Sections 172.204(a) or (c)(1) in that Covermark offered a hazardous material for 

transportation and failed to certify that the material was offered for transportation in accordance 

with this subchapter by printing on the shipping paper containing the required shipping 

description one of the certifications set forth in this part. 
i. Section 172.204(c)(2) in that Covermark offered a hazardous material to an 

aircraft operator for transportation by air and failed to provide two copies of the certification 

required in this section. 

j . Section 172.204(c)(3) in that Covermark offered for transportation by air a 

hazardous material authorized for air transportation and failed to add to the certification required 

in this section the following statement: 

"I declare that all of the applicable air transport requirements have been met." 

k. Section 172.301(a) in that Covermark offered for transportation a hazardous 

material in a non-bulk packaging and failed to mark the package with the proper shipping name 

and identification number (preceded by "UN" or "NA", as appropriate) for the material as shown 

inthe §172.101 table. 

1. Sections 172.300(a) and 172.312(a)(2) in that Covermark offered a non-bulk 

combination package having inner packagings containing liquid hazardous material for 

transportation and failed to legibly mark the outer package with package orientation markings 

that conform pictorially to ISO Standard 780-1895, on two opposite vertical sides of the package 

with the arrows pointing in the correct upright direction. 

m. Section 172.400(a) in that Covermark offered for transportation a hazardous 

material in one of the packages or containment devices listed in this subpart and failed to label 

the package or containment device with the labels specified for the material in the §172.101 

Table and in this subpart. 

n. Section 172.600(c)(1) in that Covermark offered for transportation a hazardous 

material and failed to make the emergency response information conforming to this subpart 

immediately available for use at all times the hazardous material was present. 

o. Section 172.600(c)(2) in that Covermark offered for transportation a hazardous 

material and failed to make emergency response information including the emergency response 

telephone number, immediately available to any government agency responding to an incident 

involving hazardous materials or conducting an investigation which involves a hazardous 

material. 

p. Section 172.702(a) in that Covermark offered a hazardous material for 

transportation and failed to ensure that each of its hazmat employees was trained in accordance 

with the requirements prescribed in this subpart. 

q. Section 173.24(b)(1) in that Covermark failed to use a package which was 

designed, constructed, maintained, filled, its contents so limited, and closed, so that under 

conditions normally incident to transportation, there would be no identifiable (without the use of 

instruments) release of hazardous material to the environment. 
r. Section 173.24(f)(1) in that Covermark failed to use a package which had closures 

so designed and closed that under conditions (including the effects of temperature and vibration) 

normally incident to transportation, (i) there would be no identifiable release of hazardous 

materials to the environment from the opening to which the closure was applied, and (ii) the 

closure would be secure and leakproof 

19. Pursuant to 49 U.S.C. Section 5123(a), Respondent is subject to a civil penalty 

not lower than $250 ($450 for fraining-related violations), nor greater than $50,000 ($100,000 if 

death, serious illness, severe injury, or substantial property damage results), for each violation of 

the Department of Transportation Hazardous Materials Regulations. 

20. Under the facts and circumstances of this case, a civil penalty of $10,000 is 

appropriate. 

WHEREFORE, the Agency, by counsel respectfully requests that the Administrative Law Judge 

enter an order that Respondent be assessed a civil penalty in the amount of $10,000. This 

amount includes consideration of Respondent's corrective action and other matters that justice 

requires. 

Respectfully submitted this QM day of June, 2011 

GERALD A. ELLIS 

Attorney 

Office of the Regional Counsel 

PLEASE NOTE: 

Pursuant to Title 14 CFR Section 13.209(a), you are required to file a written answer to this 

Complaint, or a written Motion to Dismiss if appropriate, not later than 30 days after the date 

shown on the Certificate of Service which follows. 
CERTIFICATE OF SERVICE 

I hereby certify that a copy of the foregoing Complaint has been mailed this date by Certified 

Mail, Return Receipt Requested, to the following: 

Hearing Docket Clerk (original + 1 copy) 

FAA, AGC-430, Suite 2W1000 

Wilbur Wright Building 

800 Independence Avenue, SW 

Washington, DC 20591 

CM Beauty (formerly Covermark USA) 

Attn: President 

157 Veterans Drive 

Suite D 

Northvale, NJ 07647 

Keith Roberts 

Roberts Proprietaries, Inc. 

180 W. 80* St. 

New York, NY 10024 

-TlFF^YNMrMcDO^ 

Laigifl[Assistant 

Officeoi the Regional Counsel 

«IUN 0 3 201} 

Dated