u.s. DEPARTMENT oF TRANsPoRTATioN 

# nECEIVED OFFICE OF HEARINGS 

## 1\

WASHINGTON, D.C. 

## JUl 3 12012

IN THE MATTER OF AVIATION REPAIR SOLUTIONS,INC. FAA DOCKETNO. [TO BE ASSIGNED[ (Civil Penalty Action) FDMS NO. FAA-2012- 0474 FAA CASE NO. 20llWP91033l

ANSWER 

# HEARING DOCKET

Respondent, Aviation Repair Solutions, Inc., a California corporation ("Aviation Repair"), in answer to the Complaint ofthe Federal Aviation Administration ("FAA") (the "Complaint"), admits, denies and alleges as follows: 

### 1. In response to paragraph l, Aviation Repair admits that shortly after June 4, 2012, itwas advised through a Final Notice ofProposed Civil Penaltythat the FAAproposedto assess a civil penalty inthe amount of$7,000 and admits that on or about June 11, 2012, Aviation Repair submitted a writtenrequest for hearing. 2. Aviation Repair admits the allegations in paragraph 2 ofthe Complaint. 3. In response to paragraph 3 ofthe Complaint, Aviation Repair admits only that until July 12,2012, the Operations Specifications applicable to Aviation Repair stated: "the certificate holder certifies that it will comply withthe requirements of 14 C.F.R. part 121 appendices I and J and 49 C.F.R. part 40 for its Antidrug and Alcohol Misuse Prevention Program." Except as so expressly admitted, Aviation Repair denies that at all times mentioned inthe Complaint, Aviation Repair was subject to Operations Specifications paragraph A449, which certifies that Respondent complies withthe Department ofTransportation Antidrug and Alcohol Misuse Prevention Program found under 14 C.F.R. part 120. 4. In response to paragraph4 ofthe Complaint, Aviation Repair denies that paragraph4 provides a complete and accurate definition ofthe term "covered employee" under 14 C.F.R.

1

### section 120.7(f). 14 C.F.R. Section 120.7(f) speaks for itself. A "covered employee" under 14 C.F.R. section l20.7(f) means "an individual who performs, either directly or by contract, a safety sensitive function listed in sections 120.105 and 120.215 for an employer (as defined in paragraph (i) ofthis section)." (emphasis added). 5. Aviation Repair admits the allegations inparagraph 5 ofthe Complaint. 6. Aviation Repair admits the allegations in paragraph 6 ofthe Complaint. 7. Aviation Repair admits the allegations inparagraph 7 ofthe Complaint. 8. In response to paragraph 8 ofthe Complaint, Aviation Repair admits that its own employees performing a safety-sensitive function, including aircraft maintenance and preventative maintenance duties must be the subject to drug testing under an antidrug program implemented in accordance with 14 C.F.R. part 120, subpart E, including full-time, part-time, temporary and intermittent employees regardless ofthe degree ofsupervision. Aviation Repair admits that covered subcontractors at any tier have the same obligations as to their own employees. However, Aviation Repair denies that it has directresponsibility as to employees of
a covered subcontractor to provide drug testing under a drug testing program; and alleges that a covered subcontractor has the obligation to subject its own employees to drug testing under a drug testing program. 9. In response to paragraph 9 ofthe Complaint, Aviation Repair admits that its own employees performing a safety-sensitive function, including aircraft maintenance and preventative maintenance duties must be the subject to alcohol testing under an alcohol testing program implemented in accordance with 14 C.F.R. part 120, subpart F, including full-time, part-time, temporary and intermittent employees regardless ofthe degree ofsupervision. Aviation Repair admits that covered subcontractors at any tier have the same obligations as to their own employees. However, Aviation Repair denies that it has direct responsibility as to employees ofa covered subcontractor to provide alcohol testing under an alcohol testing program; and alleges that a covered subcontractor has the obligation to subject its own employees to alcohol testing under an alcohol testing program. 10. In

### response to paragraph 10 ofthe Complaint, Aviation Repair admits that on or about June 24, 2011, the FAA initiated an investigation as to Aviation Repair's drug and alcohol testing program in connection with its inspection ofthe Antidrug and Alcohol Misuse Prevention

2Program at Magorien Honing and Hydrolics, akaDave Magorien ("Magorien"). AviationRepair denies that its drug and alcoholtesting program has violated any applicable requirements. 11. In response to paragraph 10 (a) ofthe Complaint, AviationRepair admits that it subcontracted with Magoriento perform aircraft maintenance andpreventative maintenance duties which is defined inthe regulations as a safety-sensitive fi.mction. However, Aviation Repair denies that the subjecthoning work actually posed or amountedto any safety risk. The workperformed by Magorien consisted ofpolishingplated surfaces to AviationRepair requirements. Following Magorien's work, AviationRepair physically inspectedthepartsto
ensure perfonnance. The workperformed at Magorienwas not an actual threatto aviation safety. 12. In response to paragraph lO(b) ofthe Complaint, Aviation Repair denies that it failed to verify whether Magorien had a DOT Antidrug and Alcohol Misuse PreventionProgram in compliance with 14 C.F.R. part 120 and 49 C.F.R. part 40 before contracting with itto perform aircraftmaintenance andpreventative maintenance for AviationRepair. OnMarch 12, 2010, Aviation Repair contacted Magorien and communicatedthatthey hadwork available for Magorien once they were onthe drug program. Aviation Repair received a verbal indicationthat Magorienwas on a drug and alcohol program on March 12,2010. As a result, a purchase order

was transportedto Magorien's facility. Aviation Repair nowunderstands from the FAAthat Magorien was not onthe program onMarch 12, 2012 whenthey saidthey were onthe program; and did not get onthe program until a few days later, onMarch 18, 2010. Aviation Repair verified withMagorien on March 12,2012thatMagorien did have the required drug and alcohol program but did not get written proof. Aviation Repair notes thatMagorien's FAAregistration application is dated and signedMarch 12,2010. 13. In response to paragraph 10 (c), Aviation Repair is withoutinformation and belief sufficientto respond and onthatbasis denies the allegations inparagraph 10 (c), and eachof them. 14. AviationRepair admits the allegations inparagraph lO(d). 15. Aviation Repair admits the allegations in paragraph lO(e). 16. Inresponse to paragraph 10(f), Aviation Repair denies thatthe workperformedby Magorienhad an actual impact on aircraft safety orwas actually relatedto aircraft safety. Except as so expressly denied, Aviation Repair admits the allegations ofparagraph 1O(f).

317. Aviation Repair admits the allegations ofparagraph 10 (g). 18. Aviation Repair admits the allegations ofparagraph 10 (h). 19. In response to paragraph lO(i), Aviation Repair admits that Magorien billedrespondent for the repairs in invoice no. 102033; but denies that the invoice was issued prior to March 18, 2010. The invoice was dated March 26, 2010. 20. Inresponse to the allegations in paragraph II (1), Aviation Repair denies, generally and specifically, that it violated the requirements of 14 C.F.R. section 120.105, and denies that it failed to ensure that all ofits employees who perfonned aircraft maintenance and preventative maintenance duties were subjectto drug testing under an antidrug program implemented in accordance with 14 C.F.Rpart 120, subpartE. 21. In response to the allegations in paragraph II(2), Aviation Repair denies, generally and specifically, that itviolatedthe provisions of 14 C.F.R. section 120.215 (a), and denies that it failed to ensure that all ofits employees who performed aircraft maintenance and preventative maintenance duties were subject to alcohol testing under an alcohol testing program implemented in accordance with 14 C.F.R., part 120, subpart F. 22. 14 C.F.R. part 120, concerning drug and alcohol testing programs, requires covered employers to have drug and alcohol testing programs as to their own covered employees. Covered subcontractors mustmeet the requirements as to their owncovered employees. Aviation Repair was not obligatedto implement a drug and alcohol testing program as to employees ofMagorien. 23. For example, (a) 14 C.F.R., section 120.5 notes that each employerhaving a drug and alcohol testing program under part 120 mustensure that all drug and alcohol testing is conducted appropriately; (b) section 120.7 separately defines "contractor" as distinct from an "employer;" (c) under section 120.7, "covered employee" means an individual who performs, either directly
or by contract, a safety-sensitive function for an "employer;" (d) section 120.7 defines an "employee" as an individual who is "hired" either directly orby contractto perform a safetysensitive function for an "employer;" (e) "employer" is defined in section 120.7 as a certificate holder, among other things; and (f) section 120. 7 establishes that "hire" means "retaining an individual for a safety-sensitive function as a paid employee, as a volunteer, or throughbarter or other form ofcompensation."

424. Section 120.103 (c) imposes responsibilities on employers only "for all actions ofyour officials, representatives and service agents incarrying out the requirements ofthis subpart and 49 C.F.R. Part 40;" section 120.103 does notprovide strict liability on employers for the actions ofsubcontractors as to drug testing program requirements. See also section 120.205, concerning employerresponsibility for alcohol testing. Indeed, section 120.117 provides that "[e]ach company mustmeet the requirements ofthis subpart," relating to drug testing programs. Each company is required to ensure training and testing as to its ownemployees. 25. Sections 120.105 and 120.215(a) establish that an employee who performs safetysensitive functions for an employer mustbe subject to drug testing and alcohol testing and that subcontractors at any tier who are covered must subject their own employees to appropriate drug and alcohol testing. Aviation Repair is informed and believes and on thatbasis alleges thatthe FAA has pursued direct proceedings against Magorien for its alleged failure to timely implement drug and alcohol programs. 26. Aviation Repair repairs aircraft parts at the fundamental single piece level (meaning the parts are not assemblies). In order to accomplish this work, Aviation Repair performs plating and machining processes and uses subcontractors for other workprocesses. The "honing" process is a technique used to produce a very bighquality surface finish using abrasive stones. Magorien performedhoning for Aviation Repair. The processes Aviation Repair and Magorien usedto repair parts are not used exclusively inthe repair ofparts, they are also used extensively inthe manufacture ofnewparts. The following statements are true: a) Itis not a violation ofany FAArule for a party without an FAADrug and Alcohol program to "hone" a newly manufactured part which will be installed on a new commercialpassenger airliner prior to initial delivery ofthat aircraft to an operator. So,
new commercialpassenger aircraft containparts that are honed by employees who are not tested as part ofan FAA Drug and Alcohol program. These parts fall into the FAA's "fabrication" exceptionto the Drug and Alcohol rule. b) It is not a violation ofany FAArule for a partywithout an FAA Drug and Alcohol program to "hone" a newly manufactured part which will be installed onan in-service commercial passenger airliner as a replacement aftermarket "spare" part. So, the inservice fleets ofcommercial passenger airline operators include thousands ofparts which

5have beenhonedby people who are not tested as part ofan FAA Drug and Alcohol Program. These parts also fall into the FAA's "fabrication" exception to the Drug and Alcohol rule. c) Itis not a violation ofany FAArule for foreign FAA repair stations to hone parts as part ofa repair process to be subsequently installed on commercial passenger aircraft ifthey operate within a sovereign country and ifthat country does not permit drug and alcohol testing ofemployees. Yet, parts are honed under this circumstance and are installed on commercial passenger airlines operating in the U.S. Had Aviation Repair followed all other FAArules, Aviation Repair could have outsourced the "honing" work to a foreign repair station without an alleged violation. 27. The vast majority of"honed"parts flying on commercialpassenger aircraft fit into one of the three categories above. The FAA !mowsthat aviation safety is not atrisk ifparts are "honed" by an employee who is not subject to drug and alcohol testing. 28. Although as alleged above, AviationRepair is notresponsible for Magorien's employees (butMagorienis responsible for its employees), unclear definitions ofthe terms "maintenance" and "fabrication" discriminate against U.S. based Repair Stations. 29. The regulatory interpretation ofthe FAA and imposition ofa fme on a very small business such as Aviation Repair would put Aviation Repair at a competitive disadvantage as against foreign repair stations, and would encourage outsourcing. 30. Inthe present case, Aviation Repair inspected the parts at various steps in therest ofthe process following receipt ofthe parts from Magorien. Aviation Repair also expects that the parts wouldhave beeninspectedby American Airlines upon installation into assemblies and that the assemblies were testedprior to installation on aircraft. To the knowledge ofAviation Repair, nothing was found to be wrong with the parts. Aviation safety was never threatened. No one who worked onthe parts was underthe influence ofanything. WHEREFORE, Aviation Repair respectfully submits that under the circumstances ofthis case, no civil penalty is appropriate. Ifit is determined that a civil penalty is appropriate, Aviation Repair respectfully submits thatthere is no willful violation, any violation was de minimus, there was no actual threatto safety and that Aviation Repair is a very small employer, such that any civil penalty shouldbe substantially less than $7,000. Additionally, Aviation

6Repairrespectfully requests tbat underthe circumstances, any civilpenalty should beimposed without a finding ofviolation;. (see 14 C.F.R. section 13.16 (n) ).

Dated: July 23, 2012

GIBSON RNERA & TOMS LLP

Robert L Toms Jr., attorney f;:Jr Aviation Repair Solutions, Inc. 527 South Lake Avenue,**Suit~** 105 Pasadena, California 91101 Tel: (626) 405-1122 Fax: (626) 405-8966 E-mail:**rtoms@grtlaw.n~t** Respectfully submitted,

AVIATION REPAIR SOLUTIONS, INC.

7FDSMNo. FAA-2012-0474 (Civil Penalty Action)
I am employed in the County ofLos Angeles, State ofCalifornia. I am over the age ofeighteen (18) and not a party to the within action; My business address is: 527 South Lake Avenue, Suite 105,Pasadena, California 91101. On

### July 24, 2012, I served the foregoing document inthis action described as: ANSWER as follows: SEE ATTACHED SERVICE LIST
Executed on July 24, 2012 at Pasadena, California.
(XX) (Federal) I declare under penalty of perjury under the laws of United States of America that the above is true and correct. I declare that I am employed in the office ofa member ofthe Bar ofthis Court at whose direction the service was made.

1SERVICE 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 2W1000 1
ONE COPY 

### Michael F. Mckinley, Complainant's Counsel 

### Senior Attorney, Enforcement Division, AGC-300 Office ofthe ChiefCounsel Federal Aviation Administration 800 Independence Avenue, S.W. Washington, DC 20591 TEL: (202) 267-7100 FAX: (202) 267-5106 E-MAIL: michael.f.mckinley@faa.gov The Honorable Richard C. 

### Goodwin, Administrative Law Judge 

### Office ofHearings, M-20 U.S. Department ofTransportation 1200 NewJersey Avenue, S.E. (Ell-310) Washington, DC 20590 TEL: (202)366-2139 Attorney-Advisor (202) 366-5121 StaffAssistant FAX: (202) 366-7536

1Service was by U.S. Mail. For service in person or by expedited courier, use the following address: Federal Aviation Administration, 600 Independence Avenue, S.W., Wilbur Wright Building-Suite 2Wl000, Washington, DC 20591, Attention: Hearing Docket Clerk, AGC430 2