### UNITED STATES DEPARTMENTOF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION WASHINGTON, DC In the Matter of: M & 

### R HELICOPTERS, LLC FAA Order No. 2013-4 FAA Docket No. CPlOSOOOll FDMS No. FAA- 2010-1211 1

Served: September 5, 20 13 

### DECISION AND ORDER 2 

### I. Introduction Respondent M & R Helicopters (Respondent) has appealed the decision of Administrative LawJudge (ALJ) Richard C. Goodwin? The ALJ found that Respondent used an aircraft mechanic to perform a safety-sensitive .function- maintenance andpreventive c •• maintenance on Respondent's helicopter- in2008 vvithput testing him for drugs and alcohol, in I , ,l ': violation of 14 C.F.R. §§ 135.25l(a)4 and 135.255(b)5 (2008). The ALJ assessed a $4,400 civil

1 Materials filed in the FAA Hearing Docket (except for materials filed in security cases or materials under seal) are also available for viewing at the following Internet address: www.regulations.gov.
2 The Administrator's civil penalty decisions, along with indexes ofthe decisions, the rules of practice, and other information, are available on the Internet at the following address·. www.faa.gov/about/office _erg/headquarters_offices/age/pol_adjudication/AGC400/ Civil_ Penalty. In addition, Thomson Reuters/West Publishing publishes Federal Aviation Decisions. Finally, the decisions are available through LEXIS (TRANS library) and WestLaw (FTRAN-FAA database). For additional information, see the Web site.
3 A copy ofthe ALI's decision is attached. 4 Section 135.251(a) (2008) provided as follows:" : ';; ' ·.' :!,", § 135.251 Testing for prohibited drugs. (a) Each certificate holder or operator shall test each ofits employees who performs a function listed in appendix I to part 121 ofthis chapter in accordance with thatpenalty against Respondent for these violations. On appeal, Respondent argued that it should not have been found liable for violations of the drug testing rules because the mechanic who performed the work for Respondent on a contractbasis in 2008 had been included in the drug testing program ofhis full-time employer, Air Methods, andhis part-time employer, the National Guard. Prior to 2004, FAA regulations permitted an employer to use a person for a safety-sensitive function without including the person in the employer's drug testing program 

### if the person was included in another employer's drug testing program. However, by the time the alleged violations in this case occurred, the FAA had amended the regulations to provide that an employer could only use a person for a safety-sensitive function who was not included under the employer's drug testing program 

### if the person was included under another employer's drug testing program andwas performing a safety-sensitive function onthat other employer's behalf(i.e., within the scope ofemployment for the other employer). The FAA stated when it adopted this change that "employers will only be permitted to rely on companies with whom they have contractual relationships to cover testing oftheir employees." Final Rule, AntidrugandAlcoholMisuse Prevention Programsfor PersonnelEngaged in SpecifiedAviationActivities, 69 Fed. Reg. 1840, 1843 (January 12, 2004). Neither Air Methods nor the National Guard were involved with the mechanic's work for

appendix.
5 Section 135.255(b) (2008) provided as follows: § 135.255 Testing for alcohol. (b)
... [N]o certificate holder or operator may use any person who meets the definition of"covered employee" in appendix J to part 121 ofthis chapter to perform a safety-sensitive function listed in that appendix unless such person is subject to testing for alcohol misuse in accordance with the provisions ofappendix J.

2Respondent. Therefore, as the ALJ held, Respondent's use ofthe mechanic was contrary to the regulations. Respondent advauced other arguments on appeal, including the following:
• Itwas unaware ofthe amendment to the drug testing regulations, and the FAA should have informed it about these changes.
• The drug aud alcohol testing regulations were unclear.
• Nothing more than a warning or a Jetter ofcorrection wasjustified because this case did not involve serious safety issues or an unwillingness to comply with the regulations.

• The mechanic who performed safety-sensitive work for Respondent was not Respondent's employee because he only worked for Respondent I day every 2 years.
• Respondent could not have violated the regulations because it was not operating at the time.
• Respondent is financially unable to pay the $4,400 civil penalty assessed by the 

### AL.T. As will be explained inthis decision, all ofthese arguments are rejected. This decision affirms the ALJ's decision both as to the finding ofviolations aud the $4,400 civil penalty. 

### II. Background A. Governmental Regulation The FAArequired drug or alcohol testing ofindividuals performing safety-sensitive functions in commercial aviation in the 1980's. AntidrugandAlcoholMisuse Prevention Programsfor Personnel Engaged in SpecifiedAviationActivities; Final Rule, 69 Fed. Reg. 1840, 1840 (Jauuary 12, 2004). Citing "the broad use of [illegal] drugs inAmerican society," the FAA adopted regulations requiring the testing ofpersons performing safety-sensitive functions

3in commercial aviation for certain illegal drugs 6 

### !d. AntidrugProgram for Personnel Engaged in SpecifiedAviationActivities, 53 Fed. Reg. 47024 (November 14, 1988). In 1991, Congress enacted the Omnibus Transportation Employee Testing Act of 1991 ("the Transportation Testing Act" or "the Act"), Pub. L. 102-143, 105 Stat. 953,49 U.S.C. §

### § 45101

- 45107. Congress found that "the greatest efforts must be expended to eliminate the abuse ofalcohol and use ofillegal drugs, whether on duty or offduty, by those individuals who
are involved in the operation ofaircraft
...." Pub. L. 102-143 

### § 2(3). Congress also found that "the most effective deterrent to abuse ofalcohol and use ofillegal drugs is increased testing, including random testing." Pub. L. 102-143 § 2(5). The Transportation Testing Actrequired the FAA Administrator to prescribe regulations, inthe interest ofaviation safety, to test safetysensitive employees notjustfor controlled substances, but for alcohol as well. Regarding controlled substances, the Transportation Testing Act directed the FAA Administrator to require air carriers to conduct the following types oftesting: pre-employment, reasonable suspicion, random, and post-accident testing. 49 U.S.C.§ 45102(a)(l) (2008). Regarding alcohol, the Act directed the Administrator to require the same types oftesting as for controlled substances, except the Act did not require pre-employment testing for alcohol. 49 U.S.C. § 45102(a)(2). The Act directed that the regulations permit, but not require, air carriers to conduct pre-employment testing for alcohol. 

### (!d.) The FAA implemented the Transportation Testing Act, as required. In 1994, the FAA published a final rule entitledAlcoholMisuse Prevention Programfor Personnel Engaged in SpecifiedAviationActivities. 59 Fed. Reg. 7380 (February 15, 1994). Also in 1994, the FAA published a final rule entitled,AntidrugProgramfor Personnel Engaged in SpecifiedAviation

6 Inthe final rule, the FAA stated that it "expressly excluded the issue ofalcohol testing from this rulemaking
...." 53 Fed. Reg. 47024,47048 (November 21, 1988). 4Activities. 59 Fed. Reg. 42911 (August 19, 1994). Under the drug testing rules prior to 2004, when an employee was included in an employer's (Employer A's) drug testing program, then another employer (Employer B) could
use the employee for safety-sensitive functions even ifthe employee was not included inthat employer's (Employer B's) testing program. Final Rule, AntidrugandAlcoholMisuse Prevention Programs for Personnel Engaged in SpecifiedAviationActivities, 69 Fed. Reg. 1840, 1843 (January 12, 2004). This was called the "moonlighting loophole." 

### !d.

!d. Unfortunately, problems arose as a consequence ofthe "moonlighting loophole." In manycases, ... Employer A was unaware ofits employee's activities for Employer B. One problem arising from this was that ifEmployer A terminated the employee, Employer B might not know that the employee was no longer covered by Employer A's drug testing program. Another problem was that, in the event ofan accident while an employee was working for Employer B, Employer B could not have post-accident tested the employee because the employee was not included in Employer B's drug testing program. Employer A might not have been aware ofthe need to testthe employee, or it might not have agreed to test the employee ifthe employee had not beenperforming a safety-sensitive function within the scope ofemployment with Employer A. In adopting the original rule, it was not the FAA's intent to create a situation where a person performing a safety-sensitive function could avoid being tested.

The FAA eliminated the "moonlighting loophole" in 2004 by adding the following language to the regulation defining the term "employer": An employer may use a contract employee who is not included under that employer's FAA-mandated antidrug program to perform a safety-sensitive function only ifthat contract employee is included under the contractor's FAAmandated antidrug program and is performing a safety-sensitive function on behalfofthat contractor 

### (i.e., within the scope ofemployment withthe contractor). 

### !d. at 1856 (codified at 14 C.F.R. Part 121, Appendix I,§ II (definition of"Employer."). In the final rule, the FAA explained that ifthe employee was performing a safety-sensitive function on
5behalfofa contractor: then the contractor is fully knowledgeable ofwhat work the individual is doing, and the contractor can ... remove from service any individual who tests positive while working for a client. This way, the regulation permits the employer to use an individual without directly covering him or her, but also ensures that the contractor will be in a position to know who is working where, so that safety and individual privacy are correctly balanced should a positive test result be received. Id. at 1843. In 2008, when the alleged violations in the instant case occurred, the drug and alcohol testing regulations applicable to this case were set forth in 14 C.F.R. Part 135, as well as in 14 C.F.R. Part 121, Appendix I (entitled "Drug Testing Program") and Appendix 

### J (entitled "Alcohol Misuse Prevention Program") (2008).

M & R Helicopters (later renamed DRHelicopters), is located inBethlehem, Pennsylvania. (PHC Tr. 47, Tr. 349/ At all relevant times, Respondent held a 14 C.F.R. Part 119 certificate (for air carriers and commercial operators) and held operations specifications authorizing itto operate nnder 14 C.F.R. Part 135 (operating requirements for commuter and on demand operations). Respondent certified in its operations specifications that it would comply with the requirements ofAppendices I and J of 14 C.F.R. Part 121 for its Antidrug and Alcohol Misuse Prevention Program. (Exhibit A-2). 8 On Jnne 19, 2007, Dr. Michael Selig, Respondent's owner and president, failed his airman competency check. (Exhibit R-6 at 1.) The FAA informed Dr. Selig that he must not act
as a pilot during 14 C.F.R. Part 135 operations until he satisfactorily completed the check. (!d.)

7 Citations to the Pre-Hearing Conference are as follows: "PHC Tr. [page number(s)]." Citations to the Hearing Transcript are as follows: "Tr. [page number(s)]."
8 The exhibits from the hearing are labeled as follows. The agency's exhibits- i.e., Complainant's exhibits- are labeled "Exhibit A-[number]." M & RHelicopter's exhibits- i.e., Respondent's exhibits- are labeled "Exhibit R-[number]." 6The helicopter flight log showed that Respondent conducted Part 135 flights with this helicopter until June 2007. (Tr. 91-92.) On July 21 and 23,2009, inspectors from the FAA's Drug Abatement Division conducted a routine inspection ofRespondent's operation. (Tr. 77, 85; Exhibit A-7.)9 The inspectors discovered that on July 24, 2008, EdwardBakerIII, an A&P mechanic, had performed safety-sensitive duties (maintenance and preventive maintenance) 10 onRespondent's helicopter,
eventhough Mr. Baker was not part ofRespondent's drug and alcohol testing programs and did not have his own drug and alcohol testing programs. (Tr. 109, 228-229.) Inparticular, Mr. Balcer had checked the helicopter's mainrotor track and balance in accordance with checklist #4300 andthe Bell206 maintenance manual. (Tr. 88; Exhibit A-4.) Atthe hearing, Mr. Baker described this work as a "vibrationbalance check." (Tr. 227.) Mr. Baker wrote in the maintenance log, "All measurements found to be within limits, no adjustments required." (Exhibit A-4.) Virginia Lozada, the FAA's Eastern Region Drug and Alcohol Compliance and Enforcement Manager, testified that Mr. Baker was an employee ofRespondent under the drug and alcohol testing regulations because he was hired to perform safety-sensitive functions. (Tr. 109.) When Mr. Baker was onthe stand and was asked whether he performed the work in
9 Respondent has alleged that the behavior ofone ofthe FAA inspectors on July 23, 2009, was offensive and unprofessional, stating that her inspection that day lasted more than 3 hours and that she insisted that Respondent write her a spur-of-the-moment letter addressing several matters. (Appeal Brief at 3.) The AL.J did not mention this contention specifically in his initial decision, although he did write that any other arguments made by Respondent had been carefully considered, were rejected, and did not merit discussion. (Initial Decision at 6 n.S.) Respondent's description ofthe inspector's behavior does not necessarily indicate any impropriety. There is no time limit on inspections and the inspector was within her rights to request that Respondent write the letter documenting several matters.
10 The regulations defined the following duties as safety-sensitive: flight crewmember, flight attendant, flight instruction, aircraft dispatcher, aircraft maintenance or preventive maintenance, ground security coordinator, aviation screening, and air trat1ic control. Part 121, Appendix I, § III (drug testing program) and Appendix J, §II (alcohol testing program); see also Tr. 108-09.

7his capacity as an independent contractor, he responded, "I guess you could say that." (Tr. 228.) Dr. Selig paidMr. Baker $200 for the mainrotor track and balance check. (Tr. I04-105; Complainant's Exhibit 10.) At the time ofhis work on Respondent's helicopter in 2008, Mr. Baker was employed full time by a company called Air Methods and parttime by the National Guard. (Tr. 101-102; Exhibit A-9.) Although both Air Methods and the National Guard tested Mr. Baker for drugs and alcohol, they were notinvolved in any way with the work Mr. Bakerperformed for Respondent. (Tr. 221, 228.) 11 In other words, neither Air Methods nor the National Guard was a contractor to Respondent. In the complaint issued onNovember 17, 2010, Complainant allegedthat on July 24, 2008, Respondent used one ofits employees (specifically, an airframe and powerplant mechanic,
or "A&P" mechanic) to perform safety-sensitive duties (maintenance, preventive maintenance)
on Respondent's helicopter, even though the employee was not part ofRespondent's drug and alcohol testing programs, and did not have his own drug and alcohol testing programs. Complainant alleged that Respondent violated 14 C.F.R. 

### § 135.251(a), whichrequired each certificate holder or operator to test its safety-sensitive employees for drugs in accordance with Appendix I to 14 C.F.R. Part 121. 12 Complainant also alleged that Respondent violated 14 C.F.R. 

### § 135.255(b), whichrequired each certificate holder or operator to test its safetysensitive employees for alcohol in accordance with Appendix J to 14 C.F.R. Part 121. 13

11 On September 9, 2008,47 days after Mr. Baker performed the check on Respondent's helicopter, Dr. Selig changed his company's name from M & RHelicopters, LLC, to DR Helicopters, LLC. (Exhibit R-7 at 1.) 12 Appendix I "contain[ed] the standards and components that must be included in an anti-drug program required by this chapter." (First sentence ofAppendix 1.)
13 Appendix J "contain[ed] the standards and components that must be included in an alcohol 8Complainant's complaint sought a civil penalty of$5,400 for violations of 14 C.F.R. §§ l35.25l(a) and l35.255(b). Complainant later amended the complaint to remove certain allegations, to reduce the proposed civil penalty from $5,400 to $4,400, and to correct typographical errors. Respondent filed a document captioned "Preliminary Objections," apparently instead of
an answer, in which Respondent admitted that: 

### (l) Mr. Baker performed safety-sensitive functions for Respondent on July 24, 2008; and (2) Respondent was at all relevant times the holder ofan air carrier certificate issued under 14 C.F.R. Part 119, and had operations specifications authorizing it to conduct operations under 14 C.F.R. Part 135. Respondent denied the remainder ofthe complaint. 

### 1n its defense, Respondent stated that it had notbeen able to conduct Part l35 operations for about a year before the workperformedby Mr. Baker on July 24,2008. Complainant filed a motion to compel discovery, after Respondent failed to respond fully to discovery requests. The ALJ issued Respondent an order to show cause. The ALJ determined that Respondent's response to the order to show cause was inadequate. As a consequence, the ALJ ruled that Respondent could not rely on any evidence that it should have disclosed in response to Complainant's discovery request. Respondent asked the ALJ to reconsider, butthe A

### L.T declined to do so. Bothparties filed motions for decision, both ofwhich the ALJ denied. After a 2-day hearing, the ALJ issued his written decision finding that Respondent violated the regulations as alleged and assessing a $4,400 civil penalty.

misuse prevention program required bythis chapter." (First sentence ofAppendix J.) 9

### III. The ALJ's Written Decision Inhis written decision, the ALJ found that Complainantproved each element ofits case alleging that Respondent had violated 14 C.F.R. §§ 135.251(a) and 135.255(b). He held that the agency proved that: (1) Respondent was an entity required to follow the drug and alcohol testing regulations; (2) Respondent was an employer who had hired an employee to perform a safetysensitive task; and (3) the employee was not included in Respondent's random pool for drug and alcohol testing and he did not have his own random pool. Respondent argued that it did not violate the regulations because it could not operate at the time given that Respondent's pilot lacked the credentials to fly the helicopter. Respondent asserted that ifthere were no operations, there could be no violations. Butthe ALJ held that it
was irrelevant whether the aircraft was flown afterward. It was merely fortuitous that the aircraft
was not flown, he wrote. Respondent also pointed out that its name had changed, but the ALJ statedthat the name change had no effect on Respondent's certificate number14 and that Respondent's air carrier certificate remained valid. (Initial Decision at 5.) Respondent argued that it should not be held responsible because it had no knowledge of the rule change. Respondent arguedthat the FAA did not notify Respondent ofthe rule change and did not post the change onthe FAA's Web site. But the ALJ held that it is the certificate holder's duty to maintain knowledge ofall applicable requirements, and ignorance ofthe law is
no excuse. The ALJ noted that the FAA publication ofall phases ofthe rulemaking inthe Federal Register constituted legally sufficient notice. As for the sanction, Complainant sought $4,400, based on its sanction guidelines in FAA

14 DR Helicopters, LLC's Part 119 certificate number is MR3A020K, as was M & RHelicopter, LLC's. 10OrderNo. 2150.3B 15 As a Part 135 air carrier with no more than five pilots and five aircraft, Respondent was considered a "Group IV" entity under the guidelines. 16 The guidelines call for a civil penalty in the maximum range for an entity that failed to include a safety-sensitive employee in a drug and alcohol testing program. The ALJ wrote that under the FAA sanction guidelines, Complainant's proposed civil penalty of$4,400 was the minimum amount for a small-business entity, like Respondent, for these violations. The ALJ noted that Respondent had alleged inability to pay the proposed civil penalty. The ALJ wrote that inability to pay was an atlirrnative defense that Respondent must prove, and Respondent had offered no evidence ofinability to pay. The ALJ concluded that a civil penalty of$4,400 was appropriate because: (I) it reflected the risk resulting from permitting maintenance without drug and alcohol controls; and (2) it provided a proper deterrent effect. He assessed Respondent a civil penalty of$4,400. Respondent tiled a timely notice ofappeal from the ALJ's decision. 

### IV. Respondent's Appeal A. Employee Status On appeal, Respondent sidesteps the issue ofwhether Mr. Baker was its employee for the purpose ofthe drug and alcohol testing regulations, asserting that he worked for only 1 day every 2 years and that he was "always and continuously on a [testing] program by his primary full-time employer Air Methods Corporation and [his part-time employer] the National Guard." (Respondent's Briefat 2.) Thus, Respondent argues that "Mr. Baker was continuously and

15 The FAA's sanction guidelines take many factors into account, including the size ofan air carrier and the nature ofthe violations.
16 The sanction guidelines divide air carriers into four "groups"- Groups I- IV- with Group IV including the smallest carriers. The minimum sanction for Group IV carriers is lower than that for Group I - III carriers.

11without interruption onmultiple drug programs and [Respondent] always had its own drug program for those not on a drug program." 

### (Id at 13.) EvenifRespondent's factual assertions
are correct. its legal conclusion is in error. The overarching requirement ofthe regulations and the implementing provisions of Appendix I and Appendix J is that any person performing safety-sensitive work for a Part 135 certificate holder must be included either in the certificate holder's testing program or, ifthe work is done by contract, 

### inthe contractor's testing program, regardless ofwhether the contractor is an individual or a company. Any doubt regarding this intent was removed inthe revised provisions ofAppendix I concerning the definition of"employer": An employer may use a contract employee who is notincluded under that employer's FAA-mandated antidrug programto perform a safety-sensitive function only ifthat contract employee is included under the contractor's FAAmandated antidrug program and is performing a safety-sensitive function on behalfofthat contractor (i.e., within the scope ofemployment with the contractor). Further, inthe preamble to the final rule, the FAA explained that "including an employee 

### in a drug and alcohol testing program depends onhis or her duties, not employment status (full time, parttime, temporary, or intermittent)." Final Rule, AntidrugandAlcoholMisuse Prevention Programs for Personnel Engaged in SpecifiedAviationActivities, 69 Fed. Reg. 1840, 1852 (January 12, 2004); see 14 C.F.R. Part 121, Appendix I,§ III and Appendix J, § II.A ("full-time, part-time, temporary, and intennittent employees regardless ofthe degree ofsupervision" must be included in drug and alcohol testing programs). Here, the work for Respondent was performed "by contract" withMr. Baker

- not by contract with either Air Methods or withthe National Guard- and Mr. Baker had no individual FAAtesting program applicable to him. The definitions of"employee" in Appendix 117 and

17 14 C.F.R. Pm1121, Appendix I,§ II.
12"covered employee" inAppendix J 18 expressly contemplate this scenario when they include a person who is hired or who performs a safety-sensitive function "by contract." Consequently, under the circumstances here, Respondent had no alternative other than to deem Mr. Baker its contract employee and to conduct the testing required under Appendix I and Appendix J. B, 

### Notice On appeal, Respondent argues that the FAA and its inspectors failed to notify it ofthe 2004 change inthe regulation regarding contractor employees. 19 Alongthe same lines, Respondent states that the FAA did notupdate Respondent's operations specifications or compliance statements to reflect the change inthe regulations. Had it known ofthe change, it states, it would nothave violated the regulations. (Appeal Briefat 4.) Inthe instant case, it is undisputed that mechanic Bakerperformed safety-sensitive duties for Respondent, but was not included in Respondent's drug testing program. It is also undisputed that Mr. Baker's work for Respondent was not within the scope ofhis employment for the entities that did test him, AirMethods and the National Guard. Nevertheless, Respondent argues, Complainant's case against it must fail because the FAA failed to notify it ofthe above18 14 C.F.R. Part 121, Appendix J, §I, D. 19 In its appeal brief, Respondent asks that someone other than the ALJ review its appeal. (Appeal Briefat 1.) This request was unnecessary, as the Rules ofPractice do not provide for an appeal to the ALJ. Instead, the Rules provide for an appeal rrom the ALJ's decision to the FAA decisionmaker. 14 C.P.R. § 13.233. The Rules ofPractice define "FAA decisionmaker" as: the Administrator ofthe Federal Aviation Administration, acting in the capacity ofthe decisionmaker on appeal, or any person to whom the Administrator has delegated the Administrator's decisionmaking authority in a civil penalty action. As used in this subpart, the FAA decisionmaker is the official authorized to issue a final decision and order ofthe Administrator in a civil penalty action. 14 C.P.R.§ 13.202. The ALJ has no authority over this appeal. The undersigned has decisionmaking authority over this appeal and has not delegated this authority to anyone else in this case.
13described change inthe regulations. While the FAA apparently did not provide Respondent with actual notice ofthe change, it did provide Respondent and others with constructive notice ofthe change by publishing the proposed change in the Federal Register, providing the public with time to comment, and publishing the final rule inthe Federal Register20 The general rule is that "publication inthe Federal Register is legally sufficient notice to all interested or affected parties regardless of actual knowledge or hardship resulting from ignorance." Williams v. Mukasey, 531 F.3d 1040, 1042 (9 1 hCir. 2008) (quoting Camp v. US. Bureau 

### a,[LandManagement, 183 F.3d 1141, 1145 (9'h Cir. 1999)). Further, the ALJ was correct that the maxim "ignorance ofthe law is no excuse" (,Salazar v. Ramah Navajo Chapter, 132 S. Ct. 2181,2194 (2012)) applies, and that as a 14 C.F.R. Part 119 air carrier certificate holder and Part 135 operator, Respondent had a duty to keep abreast ofany changes in the regulations. (Tr. 144, 182,276, 277.f1 

### C. Inclusion in Another Entity's Testing Program Respondent argues that the FAA initiated this case based onthe erroneous assumption that Mr. Bakerwas not included in any approved drug or alcohol testing program, but, Respondent points out, the evidence showed that he was indeed included in the testing programs ofhis other employers, Air Methods and

### the National Guard. (Appeal Briefat 2.)

20 Notice of ProposedRulemaking, AntidrugandAlcoholMisuse Prevention Programsfor PersonnelEngaged in SpecifiedAviationActivities, 67 Fed. Reg. 9366 (February 28, 2002); FinalRule, Antidrug andAlcoholMisuse Prevention Programsfor Personnel Engaged in SpecifiedAviation Activities, 69 Fed. Reg. 1840 (January 12, 2004).
21 Note too that the regulations put the onus on Respondent to update the operations specification relating to drug and alcohol testing, Operations Specification A449, entitled "Antidrug and Alcohol Misuse Prevention Operations Specification," when any changes to the information in the operations specification occurred. 69 Fed. Reg. at 1850. Appendix I to Part 121 -Drug Testing Program, §IX.D.4 ("You [Respondent] must update the Antidrug and Alcohol Misuse Prevention Program Operations Specification when any changes to the information contained in the Operation Specification occur"); AppendixJ to Part 121-Alcohol Misuse Prevention Program,§ VII.D.4 (the same). 14As discussed above, it was not enough under the regulations that Mr. Baker was included in someone else's testing program when he performed safety-sensitive work for Respondent, because Mr. Baker's work for Respondent was not within the scope ofhis employment for his other employers. FAA regulations changed in 2004 so that Respondent could only use a contract employee like Mr. Baker to perform a safety-sensitive function ifhe was included under a contractor's (Air Methods' or the National Guard's) FAA-mandated antidrug program and was performing a safety-sensitive function for Respondent on behalfofthe contractor- i.e., within the scope ofhis employment with the contractor. But Mr. Baker's safety-sensitive work for Respondent was notperformed on behalfofeither Air Methods or the National Guard. This work was simply not within the scope ofhis employment with Air Methods or the National Guard. 

### D. Clarity ofthe Regulations Respondent argues that the drug and alcohol testing regulations, 

### inparticular Part 121, Appendix I and Appendix J, were so ill-defined that the FAA was forced to recodifY them in 2009. The fact that the FAA recodified the drug and alcohol regulations, however, without more, does not mean that they were defective. In 2009, the FAA did recodify the drug and alcohol testing regulations, moving the requirements for drug and alcohol testing into a single part, 14 C.F.R. Part 120, entitled "Drug and Alcohol Testing Program." 74 Fed. Reg. 22649 (May 14, 2009). The FAA made it clear in the final rule that the move did not involve any substantive changes. 

### !d. at 22651. 22 Although Respondent does not use the term "vague," its briefsuggests that it is arguing that the drug and alcohol testing regulations were void for vagueness. The vagueness doctrine

22 14 C.F.R. §§ !35.251(a) and 135.255(b) are now codified at 14 C.F.R. §§ 120.35(a) and 120.39(b), respectively.

15provides that "a laworregulation that does not fairly inform an ordinary person ofwhat is commanded orprohibited or which encourages arbitrary and discriminatory enforcement is unconstitutional as violative ofdue process." Trans StatesAirlines. Inc., FAA Order No. 2005-2 at 8-9 (March 9, 2005) (citingAmericanAirlines, FAA OrderNo. 1991-1 at 8 (March 2, 1999)). The courts require a reasonable degree ofcertainty inregulations, not perfect certainty, and the courts require less precision here than in a case where the regulations govern First Amendment activities. Trans StatesAirlines, FAA OrderNo. 2005-2 at 8-9 (citing Throckmorton v. National Transportation Safety Board, 963 F.2d 441,445 (D.C. Cir. 1992)). Respondent fails to explain exactly how the regulations at the time ofthe alleged violations were defective; it has failed to explain how the regulations lacked reasonable certainty. In fact, the regulations were reasonably clear. 

### E. Justification for Legal Enforcement Action Respondent points out that an FAA order states that, "[!]ega! enforcement action includes circumstances where serious safety issues are involved or [there is] unwillingness to comply with regulatory requirements." Drug andAlcohol Compliance andEnforcementInspector Handbook, FAA Order No. 9120.1A at 19 (May 23, 2008), http://www.faa.gov/documentLibrary/ media/Order/FULL%209120.1A!.pdf. Respondent asserts that in the instant case, only a letter ofcorrection or warning notice was appropriate- not legal enforcement action- because there
were no serious safety issues and there was no unwillingness to comply onthe part of Respondent. However, "the Administrator will not review an agency attorney's decision to initiate a civil penalty action rather taking administrative action." OffshoreAir, FAA Order No. 2002-7 at 4 (April16, 2002). As previously stated, "The agency attorney's decision to initiate a civil penalty action is an exercise ofprosecutorial discretion and is immune from

16review." (I 

### d., citing 

### Wyatt, FAA Order No. 1992-73 at 9 (December 21, 1992). 

### F. Operational Statns Respondent argues that it could not have violated the regulations because it was not operational when Mr. Baker conducted the check in 2008. First, Respondent states, it was unable to operate any Part 135 flights because its only pilot, Dr. Selig, had failed his competency examination. Second, Respondent states, it was unable to operate Part 135 t1ights because it had changed its name, and the local FAA Flight Standards District Office (FSDO) had advised Respondent not to operate until its operations specifications and compliance statements were revised to reflect the name change. Because Respondent was not operating during the relevant time period, Respondent contends, there could not have been any incidents or accidents and the public was not exposed to any danger. Sections 135.251(a) and 135.255(b) both expressly applied to "certificate holders," not justto operators?3 Thus, Respondent, as the certificate holder, was responsible for complying with these regulatory provisions, regardless ofwhether it was operating at any particular time. Under Respondent's interpretation, an air carrier could use a mechanic to perform maintenance on a helicopter at a time when it was not conducting operations, and so avoid subjecting the mechanic to drug and alcohol testing. Later it could resume operations with an aircraft upon which maintenance had been performed while the mechanic was not subject to drug and alcohol testing. Itis for this reason that the requirements to conduct drug and alcohol testing apply to certificate holders, regardless ofwhether they are conducting operations at the time or not. Respondent relies on the 

### Everson civil penalty case. In that case, the 

### ALIheld that because Everson had not flown any Part 135 operations during the relevant period, the drug and
23 See supra notes 4 and 5. 17alcohol testing rules did not apply. Everson, d/b/a North Valley Helicopters Inc., 2000 WL 34229107 at *5 (DOT) (June 16, 2000). Agency counsel filed an appeal from the ALJ's decision to the FAAAdministrator, but because agency counsel later withdrew its appeal while the case
was pending, the Administrator did not have the opportunity to decide whether the ALJ had ruled properly that there could be no violation ofthe drug and alcohol testing rules ifthe certificate holder was not in operation. Under the Rules ofPractice, the ALJ's fmdings and conclusions are not binding precedent unless affirmed bythe Administrator on appeal. See 14 C.F.R. 

### § 13.2330)(3), providing that "[a]ny issue, finding or conclusion, order, ruling, or initial decision ofan administrative lawjudge that has not been appealed to the FAA decisionmaker is not precedent in any other civii penalty action." Having prevailed before the ALJ, Everson applied under the Equal Access to Justice Act (EAJA), 5 U.S.C. 

### § 504, to recover attorney fees and expenses. The ALJ denied Everson's request for fees on the ground that the FAA's civil penalty case had been substantiallyjustified, and the Administrator affirmed. The Administrator stated that it was reasonable for the FAA to argue that a certificate holder "must implement drug and alcohol programs, simply by virtue of holding the certificate, and regardless ofthe type ofoperations flown." Everson, FAA Order No. 2004-5 at 18 (September 22, 2004). The Administrator pointed out that certain regulations- (1) 14 C.F.R. 

### § 135.251(a); (2) Appendix I to 14 C.F.R. Part 121; (3) 14 C.F.R. 

### § 135.255(a); and (4) Appendix 

### J to 14 C.F.R. Part 121 -referred to "each certificate holder," supporting the agency's position. 

### (I d. at 19.) Also, the Administrator noted that the regulations required preemployment testing, which for a new air carrier obviously must take place before operations begin; thus, the Administrator stated, the drafters could not have intended that the regulations require testing only during actual operations. 

### (Id. at 20.) In the end, the Administrator stated

18that there were reasonable arguments onboth sides ofthe issue, and the Administrator did not decide the issue. The Administrator simply found that the FAA's position had been substantially justified, and, consequently, no award offees was appropriate under EAJA. Respondent points to language in 14 C.F.R. 

### §§ 135.241 and 135.255(a) to support its argument that it did not violate Sections 135.251(a) and 135.255(b) because it was not conducting operations at the time ofMr. Baker's inspection. At the time, Sections 135.251(a) and 135.255(b) were found in Part !35's Subpart E, entitled "Flight Crewmember 24 Requirements." The applicability section for Subpart E was 14 C.F.R. 

### § 135.241, which stated that "this subpart [Subpart E] prescribes the flight crewmemberrequirements for 

### operations under this part." (Emphasis added.) Respondent also points out that Section 135.255(a) stated that "Each certificate holder 

### andoperator must establish an alcohol misuse prevention program

..." Respondent asserts that byreferring to the certificate holder 

### andoperator, Section 135.255(a) indicated that it only applied ifa company is notjust a certificate holder but also an operator. Although Section 135.241 stated that Subpart E prescribed the flight crewmember requirements for Part 135 

### operations, there are other indications that a certificate holder must implement drug and alcohol programs, simply by virtue ofholding the certificate, and regardless ofthe operations flown. The regulations in Part 135 that specifically relate to drug and alcohol testing, Sections 135.251 and 135.255, refer in various places to either the "certificate holder" alone, orto the "certificate holder 

### or operator." While it is true that Section 135.255(a) refers to "each certificate holder 

### and operator," most often the regulations involving drug and alcohol

24 While Subpart E is entitled "Flight Crewmember," Mr. Baker, the mechanic who performed the check on Respondent's helicopter, does not fit into the definition of"flight crewmember" set forth in 14 C.F.R. § 1.1. Itis clear that Mr. Baker is an employee under the drug testing regulations in Part 121, Appendix Iand a covered employee under Appendix J. This is evidence that Section 135.241 was not intended to limit the scope ofSections 135.251(a) and 135.255(b). 19testing refer to "each certificate holder" or "each certificate holder or operator." While Section 135.255(a) refers to certificate holders and operators, Complainant did not allege that Respondent violated Section 135.255(a). Rather, Complainant alleged that Respondent violated Section 135.255(b), which states that "No certificate holder or operator" may use any covered employee to perform any safety-sensitive function unless that person is subject to alcohol misuse testing.Further, as the Administrator pointed out in the Everson EAJA decision, the drug testing regulatory scheme involves pre-employmenttesting. Everson, FAA Order No. 2004-5 at 2025 For a new air carrier, pre-employment testing must necessarily take place before operations begin. Thus, the drafters could nothave intended that the regulations require testing only during operations. Respondent also relies onthe Helicopter Flite case, FAA OrderNo. 2011-6 (June 13, 2011), arguing that Part 135 contains an implicit requirement that operations are occurring. This argument is not persuasive because: (I) Helicopter Flite did not involve the drug and alcohol testing regulations, and (2) the Administrator later modified Helicopter Flite to hold that: [a] finding that a certificate holder is not in compliance with Section 135.25(b) does notrequire proofthat the certificate holder operated any aircraft during the time period in which it lacked an exclusive use aircraft. Helicopter Flite, FAA Order No. 2011-11 at 2 (November 22, 2011) (italics added).

25 As explained above beginning at p. 2, the Transportation Testing Act requiredthe air carriers to conduct pre-employment testing for drugs andpermittedthe air carriers to conduct pre-employment testing for alcohol. 20G. Inability to Pay Respondent states that is not reasonable to impose a civil penalty on it, given that it has generated only losses. According to Respondent, it is a Limited Liability Corporation and therefore has the liability protection ofa corporation. Respondent argues that a principalmeaning Dr. Selig- cannot be held personally liable. Respondent further argues that it would be unreasonable to cause further harm to Dr. Selig's personal assets, which Respondent states have been under assault in a protracted divorce litigation. Dr. Selig is notbeing held personally liable in the instant case. The instant case is against Respondent, not Dr. Selig. The ALJ correctly stated that the plea ofinability to pay all orpart ofa proposed civil penalty is an affirmative defense, and as such, it is Respondent's burden to plead and to prove it. 

### See, e.g., AmericanAirNetwork, FAA OrderNo. 2006-5 at 9 n.l9 (February 10, 2006). The ALJ said that Respondent offered no evidence ofinability to pay. Complainant requested Respondent's three most recent federal returns, including the attached schedules. (Tr. 216.) However, Respondent provided only incomplete federal and state tax returns. Because Respondent failed to provide the necessary evidence offinancial hardship
or inability to pay, the ALJ did not err in declining to reduce the otherwise appropriate civil penalty based upon Respondent's alleged inability to pay. Conclusion As discussed above, the arguments in Respondent's appeal briefare without merit.26

26 Respondent's other arguments have been considered and found to be unworthy ofdiscussion.

21

### Tho civil P"""lty

### a'~""' by 

### fuc AI

### J of$4,400 i"ni=OO." 

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# ~FT. P. JflJERTA ADMINISTRATOR Federal Aviation Administration

27 This order shall be considered an order assessing civil penalty unless Respondent files a petition for review within 60 days ofservice ofthis decision with the U.S. Court ofAppeals for the District ofColumbia Circuit or the U.S. court ofappeals for the circuit in which Respondent resides or has its principal place ofbusiness. 14 C.F.R. §§ 13.16(d)(4), 13.233G)(2), 13.235 (2013). See 71 Fed. Reg. 70460 (December 5, 2006) (regarding petitions for review offinal agency decisions in civil penalty cases).
22

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UNITED STATES DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

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' ;{ ) FEDERAL AVIATION ADMINISTRATION, ) ) Complainant, ) FAA DOCKET No. CP1 OS00011 ) v. . ) (Civil Penalty Action) ) M & R HELICOPTERS, LLC ) ) Respondent. ) FDMS No. FM-2010-1211 ) 

# ____________)



### INITIAL DECISION OF ADMINISTRATIVE LAWJUDGE RICHARD C. GOODWIN 

### Found: 1) Respondentviolated 14 CFR §§135.251(a) and 135.255(b) as charged; and 2) Respondent is herebyassessed a civil,penalty of$4,400. 

### I. Background The Omnibus Transportation Employee TestingAct of 1991, 49 U.S.C. §§45101-45107 ("the Act"), requires drug and alcohol testing of"safety-sensitive" transportation employees. Under theAct's authority, the FederalAviation Administration issued detailed regulations mandatingpre-employment, random, and post-accidentdrugand alcohol testsfor employees in aviation.'

1 While the agency setup separatetesting programs for drugs and alcohol, alcohol in fact is a drug. See Fifth Special Reportto the U.S. Congress on Alcohol and Health from the Secretary ofHealth and Hwnan Services, xiii (1983) ("alcohol is undoubtedlythe most widelyused

-- and abused

-- drug in America"). On the other hand, in common parlance theterm "drug'' doesnot connote "alcohol," McC/uskev v. Boardof Education of Rogers, Ark
.. 662 F.2d 1263. 1267 (8 Cir. 198]), The latterformulation un,doubtedly is the context in which the programs andrules were devised.2 

### The Federal Aviation Administration ("Complainant," "FAA," or "the agency") brought an action againstM& 

### RHelicopters, LLC ("Respondent" or "M & 

### R"), charging certain infractions ofthose regulations. The agency's Complaint states that M& 

### Rwas, duringthe period ofthe alleged violations, a certificated operator under Part 119 and authorized to conductoperations underPart 135 ofthe Federal Aviation Regulations ("FARs"). Part 119 carriers are obligated underthe agency's regulations to use an antidrug and alcohol misuseprevention program for their employeeswho perform safety·sensitive work (The term "employees" includes prospective and contractemployees). The agency's Complaint, as amended, alleges that M& 

### R, ofBethlehem, PA, violated certain programrequirements and is liable for a civil penalty. It asks thatM& 

### Rbe found inviolation and thatthe carrierbe assessed a civil penaltyin the amountof$4,400 (Tr. 32). More specifically, the Complaint alleges that Mr. Edward Baker III, identified as an M& 

### Remployee, performed safety-sensitive tasks forM & 

### R, an employer, on oraboutjuly 24, 2008. At thattime, the drug**a.n~** 

### alcohol testingregulations applicableto Part 119 certificate holderswere found in 14C.F.R. Part 121 and in Part 121'sAppendices I (drugtestingprogram) and

## J(alcohol misuse prevention program).2 The folloWing duties had been defined as safety-sensitive: flight crewmember, flight attendant, flight**instrt~ction,** 

### aircraft dispatcher, aircraft maintenance or preventive maintenance, ground securitycoordinator, aviation screening, and airtraffic control. \'art 121,AppendixI, §lll (drugtesting program) and Appendix

## J, §II (alcohol misuse prevention program); 

### see also Tr. 108-09. Mr. Bakerhad notbeen included in an antidrugprogram oralcohol misuse prevention program atthetimehe assertedly performed these functions, the Complaint continues 

### (see Tr. 29, 31 ). He had neitherbeen included in Respondent's random pool for required drugand alcohol testingnor had he setup hisown drug and alcohol testing program. As such, the Complaint concludes, M& 

### Rviolated FARs 14 C.F.R. §§135.251(a) and 135.255(b). Section 135.251(a) (nowcodified at 14 C.F.R. §120.35(a)) mandated drugtestingin accordance with the provisions of then-applicable Part 121,**~ppendix** 

### Ifor each employee who performed.safetysensitive functions. Part 121, Appendix I, §V.B required each safety-sensitive employee to be subjectto random drug testing. Section 135.255(b) (nowcodified at 14 C.F.R. §120.39(a)) required alcohol testing in accordance with Part 121, Appendix

## Jfor each employee who performed safety-sensitive functions. Part 121, Appendix

## J, §Ili.C compelled each safety-sensitive employee to be subjectto random alcohol misusetesting
.

.Respondent, which appeared through its presidentand owner, Michael Selig ("Dr. Selig"), denied the charges and asked thfit the Complaint be dismissed.
2 Effective July 13, 2009, the drug and alcohol testing reguflltions for Part 119 carriers were recodified. No substantive changes were made. The regulations simply were consolidated in a new 14 C.F.R. Part 120, subparts E andF. See Final Rule, 74 Fed.Reg. 22563 (May 14, 2009). Thls Initial Decision ("J.D.") will

. referto the provisions currentat the time ofthe alleged infractions unless otherwise s!J!t!ld.,3
A 

### hearingwasheld onjanuary 26 and 27, 2012, in Easton, PA. I determined thata written decision wasreasonable and appropriateunderthe circumstances (Tr. 351-52). The parties have filed briefsan4 thECxmatter nowis ready for decision.
' ' ' '1)\: ·:: ', 

### Ihold thatthefacts and circumstances ofthis casejustifyfindings of violations ofeach count and warrantan assessment against Respondent ofthe full amountrequested in the agency's Complaint, $4,4QO. 

### II. The Proceeding A. The Evidence and Findings 

### Complainant showed that Respondentwas a Part 119 certificate holder authorized byits operations specifications ("op specs") to conductPart 135 operations (Tr. 78; Exh. A-1). The op specs specifically authorized M& 

### Rto conduct operations using a Bell-206B helicopter, Registration No. N98CM (Exh. A-3; Tr. 83- 84). Such authorizations carryconcomitantresponsibilities. A 

### comparison with theresponsibilities ofmotorists is apt. Motor vehicle license holders are required by virtue oftheirlicensesto obeythe**ruleso(th~** 

### :oad;these licensees also impliedly, and necessarily, consentto the governirig**~uthority's** 

### system of punishmentfor violatingthoserules. :Just**the:~arrie,** 

### everyaircarrierin obtaining certification becomesduty-bound torespectthe agency's rules and consents to appropriatepenalties ifitdoes not. Op specs explicitly restate --and underscore-- these obligations. 

## M & 

### R's op specs spelled outthe carrier'sobligationto conduct operations in accordance with all requirements. The op specs also specifically bound M& 

### Rto comply with the agency's drug and alcohol testing requirements. Op specA449, paragraph a., states that "[t)he certificate holderwho operates under [14 CPR Part 135] certifies thatit will comply with therequfrements of 14CPR Part 121Appendices Iand1 and 49 CPR Part40 for its Antidrug and Alcohol Misuse Prevention Program." (Exhs. A-1 and A-2; Tr. 81, 315-16, 328-29). Indeed, Part 119 certificate holders such as M& 

### R mustcomplywith their op specs even ifthey are notactually conductingPart 135 operations (Tr. 329). During a routine inspectionconducted onJuly 21 and 23, 2009, FAA inspectors discovered thatan airframe and powerplant ("A & 

### P") mechanic, Edward Baker III, had onjuly 24, 2008, performed safety-sensitiveduties- maintenance and preventivemaintenance-- on'Respondent's aforermentioned Bell 206B helicopter.' M& 

### R, as a Part 119 certificateholder authorized

# tb perform Part 135 operations, ' -'i 3 Tr. 228-29. Mr. Baker, who also is a pilot, testified that he had,performed avibration balance check, ensuring thatthe rurcraft "was within normal safe operating limits for vibration analysi,s." .Tr. 227; see also Tr. 220-21. ·

### metthe regulations' definition ofemployer{Tr. 190). Mr. Baket: was deemed an employee because he had performed safety-sensitivetasks under M& 

### R's Part 135 certificate (Tr. 191-92). M& 

### R, moreover, had hired him. Bakerhad been paid directlyby Respondent's owner, Dr. Selig (Exh. A-10; Tr.104-05). Mr. Bakerwas neither a partofRespondent's drug and alcohol testing program nor did he have his own testingprogram (Tr. 204). He hadbelonged neitherto M& 

### R's random pool norhad he**fo~med** 

### a random pool ofhis own (Exhs. A-4 and A-6; Tr. 86, 89,95-96, 109-110). '1 · .'v , I 

### Mr. Baker atthistime had been employed by Air Methods, Inc. ("Air Methods"). He belonged to Air Methods' drugal)dalcohol testingprogram. But Air Methods had forbade him from performing any outside maintenance (Exh. A-9; Tr. 102-03). Baker was a "moonlighter;" that is, in performingtasks forM & 

### R, he had operated on his own and outside the scope ofhis employmentwith Air Methods. This conduct, absent membership either in the employee's own drug and alcohol testing program ora program ofthe entityfor which Baker moonlighted

- Respondent-- was prohibitedbythe drug and alcohol testingregulations (Tr. 106- 07, 110, 162-63, 310). It became a pointofcontroversythat, at onetime, Baker's actions in performing safety-sensitiveworkforM & 

### Rwould have been permissible underthe FARs. Priorto February 11, 2004; employers such as M& 

### Rhad onlyto ensurethat employees performing safety-sensitive tasks were partofsome entity's drug and alcohol testingprogram. Mr. Baker's workforM & 

### Rwould have beenpermissible since he had belonged to AirMethods' program. (Mr. Baker testified thathe also was a member ofa drugabatementprogramunderthe auspices ofthe National Guard). However, a regulation which became effective on February 11, 2004 changed the definition of"employer"to require an individual performing a safetysensitivefunction for an employertobe covered eitherby the employer's screening program orthe program ofthe contractor (in this.,case, Air Methods} when the individual is performingVI(.Ork for the employerwithin thescope of his employment for the contractor 

### (Exh. A-ll; 69 Fed.Reg. 1840, 1843 Oanuary 12, 2004}; Tr. 139,

197, 220-21, 317-18). Since Mr. Bakerwas notauthorized under his employment with Air Methods to perform outside maintenance, he had been working outside the scope ofhis employment. As such, his workforM & 

### Rhad notbeen covered byan authorized drug or alcohol testing program. B. Conclusion 

### Ifind and conclude thatRespondent violated FARs 14C.F.R. §§135.251(a) and 135.255(b) as charged. Complainantproved each elementofits case. The agency showed that, as an aviation entityholding a Part 119 certificate and authorized to conductoperations under Part 135,M& 

### Rwas required to adhere to.ti:ie drug and alcohol testing ' !;·'1!·, ' ':'!
.5 

### regulations then effective: The agency further showed that Respondentwas an · employerwho had hired an employee to perform a safety-sensitive task. That employee, Mr. Baker, was not partofa random pool for drug oralcohol screening either ofhis own creation or sponsored by Respondent. Proofofthese elements demonstrated that Respondentviolated 14 C.F.R. §§135.251(a) and 135.25S(b) as charged. Respondentraises several objections to a finding ofviolation. Seegenerally 

### "Respondent's Post-Trial Briefto Dismiss Complaint," pps. 2-3, 6-13. They are each rejected. M& 

### Rstates thatitwas unable to mountoperations atthe time ofthe asserted infraction. Its pilot did nothave the credentials required to operatethe helicopter; as such, the carderhad been effectively shut down (see 

### Exh. R-6). Anonoperable entity cannotbeheld in violation, Respondent contends. The ability orinabilityto operate is notgermane to theviolations. Whatis relevantis the status ofM& 

### R's flight certificate; thatcertificate was valid and active. The status ofthe carrier's pilot had no effect on the certificate's validity (Tr. 167-68), The evidence showed that M& 

### R's certificate had been validated as recently as June 10, 2011 {Exh. A-lJ.S; Tr. 331'). Respondent's op specs were current (Tr. 157, 164, 167-68, 314). As a carrierwith a valid certificate, M& 

### Rwas required to abide bythe regulatory requirements ofthe drug and alcohol programs (Tr. 164). M& 

### Ralso assertsthat ithad undergone a name change. But any name change had no effect on its certificate number, which did notchange. Respondent's requirementto abide by theregulations flows from thevalidity ofits certificate (Tr. 174, 331). M& 

### Rstresses thatit did notfly the Bell helicopter afterthe inspection which triggered this action. Ifthere are no operations, there canbe no violations, Respondent asserts. But the scenari.o Respondentposits, assumingitstr-uth for the sake ofargument, is notrelevant. It does not matterwhetherthe aircraft was flown afterward or not. Thatthe aircraft was not operatedis a fortuitous circumstance. It has no bearingontheviolation. It is the risk to aviation safetytriggered bythe conduct ofRespondent's employee that constitutes theprohibited behavior (Tr. 207-08; see 

### Exh. A-13). Respondent also protests that ithadno knowledge ofthe amendmentto the rule under scrutinywhich, afterFebruary 10: 2004, changed the requirements regarding drug and alcohol testing programs for certain employeesand, most importantly, allowed the instant charges to bebrought. The agency made no effort to notifY Dr. Selig or M& 

### Roftherule change. Nor did the FAA postthe change on a web site ora similarlyaccessible platform. Respondent may notbe charged with a violation ofa rule ofwhich ithad no notice, it cont('!nds. Allegation b.)(s.urprise, the argumentcontinues, is unfair andillegal and may not stand.

- ··6



### . This argument also is re!ected. It**i~ .~e** **.?~~rator's** 

### dutyto acqui:e and mamtain knowledge ofall applicable reqUirements (Tr. 144, 182). Certificate holders are responsible for keeping up to date on all matters affecting their certificate (Tr. 276, 281). Lack ofknowledge ofthe law simply does not excuse illegal conduct. 

### U.S. v. Cheesemen, 600 F.3d 270 (3 Cir. 2010). These expressions of an operator's responsibilities, it should be recognized, are buta corollary ofthe old -and quite valid- axiom that ignprance ofthe hiw is no excuse.• Moreover, the regulation complained ofwas dulypromulgated under noticeand-commentrulemaking procedures. All phases ofthe rulemakingwerepublished in the Federal Register. Thatprocess provides notice sufficient underthe Constitution to all interested parties. It affords all affected parties due process underthe law: "Publication inthe Federal Register is legally sufficient notice to all interested or affected persons regardless ofactual knowledge orhardship resulting from ignorance."

### jones v. UnitedStates, 121 F.3d 1327,1330 (9 Cir.1997), 

### cert. den. 523 U.S.1121 (1998). In view ofthe foregoing, Respondents' arguments are rejected. 5 

### III. Penaltv 

### Iwill assess a civil penalty of$4,400'. · ' ' 

### Complainanturges a civil penaltyof$4,400. Its recommendation is based on guidelines the agency has published for its employees to follow when suggesting an appropriate civil penalty. Theyar,e designed to assuregreaternational consistency in enforcingthe FARs. The guidelines are contained in FAA Order 2150.38. 

### " The guidelines assess all relevant statu'torycriteria, including mitigating and aggravating circumstances. They aid Complainant's penaltyrecommendation through a sanction guidance matrix. The sanction guidance matrix is intended to indicatethe Administrator:s general views aboutthe civil penaltyranges• · · appropriate for differenttypes ofviolations. The matrix sets outspecific penalty ranges for each input, cross-referencing such factors as the nature and size ofthe respondent and the nature and extent oftheharm produced by the offending conduct. The guidelines are not bindingon the agency. Each situation, being dependenton so manyvariables, is uniqUe. "fmfppropriatecivil penalty," the FAA
4 "[T]he maxim 'ignorantia legis neminem el(cusat,' applies. Every one is presumed to know the law, and is estopped from alleging ignorance ofit." Little v. Rasey, 12 .Mass. 319 (1815). Ifignorance were a legitimate excuse, "law would be ofno effect, but might always be eluded with impunity." The Cotton Planter, I Paine 23, 6 F.Cas. 620 (Cir.Ct.N.Y. 1810), quotingBlackstone's Commentaries on theLaws of England(1753), vol. I, sec. II, 46. ' ' All other arguments Respondent has**mad~** have been: o!j!efully considered and are reje.<;,ted without further comment. They do not merit discussion.7 

### has emphasized, "mustreflectthe totalityofthefacts and circumstances surroundingtheviolations."• M& 

### R, as an operatorunder Part 135 with no more than five pilots and five aircraft, is considered a "Group IV" entityunderthe guidelines (Order 2150.3B, p. B3; Tr. 212). Theguidelines also call for a civil penaltyin the maximum range for an entitywhichfailed to include a safety-sensitive employee in a drug and alcohol testingprogram (Order 2150.3B, p. B-31, Fig.IB-5-b; Tr. 213). Complainant additionally determinedthatMr. Baker's per:formance on Respondent's helicopter constituted an aggravati11g factor (Tr. 215).·Complainant's suggested civil penaltyof $4,400 is the minimum amount suggested for a "Group IV" small-business entity whoseviolations are felt to belong in the maximum range (Tr. 215-16; 

### see Order 2150.3B, p. B-4). The plea ofinabilityto payall orpartofa proposed civil penalty is an affirmative defense. That is, itis Respondent's burdento plead and to proveit. 

### See, e.g., AmericanAirNetwork, 

### FAA Order No. 2006-5 (February 10, 2006), p. 9 n. 19. Respondentoffered no evidence ofthis nature. I 

### find and concludethata civil penaltyof$4,400 isjust and appropriate. It 

### fairly reflects the nature oftheviolations and the risk ofhaJ:m introduced into the airtransportation system. The assessmentalso provides a proper deterrent effect. Allowing maintenance performance withoutproper drug and alcohol controls was a serious safetyissue. It could have had disastrous consequences for the aircraft,the crew, andthe flying public (Tr. 107, 157). M& 

### RHelicopters, LLC, is hereby assessed

## acivil penaltyof$4,400. for violations ofFAR 

### 14 C.F.R. §§135.251(a) and 135.,255(b) as described in this Initial Decision.' 1 · ·



### Attachment- Service List odwin 

### liministrative Law 

### Judge

6 Folsom'sAirService, FAA OrderNo. 2008-11 (November 6, 2008), p. II. I did not admit Order 2150.36, which had been proffered as Exhibit A-14, butinsteadtookjudicial notice ofit Tr. 213-14. The guidelines may be found attheFAA's web site, www.faa.gov. or, more specifically, at ·www.faa.gov/documentLibrary/media/Ordet/ND/2150.3B.pdf, 7 Any appeal from the Initial Decision to the Administrator must bein accordance with section 13.233 of the Rules ofPractice, whichrequires 1.) that a notice ofappeal be filed no laterthan 10 days {plus an additional5 for mailing) from the date ofthis order and 2) thatthe appealbeperrected with a written brief or memorandum not laterthan 50 days {plus 5 for mailing} from the date ofthis order. Each is to be sentto the Appellate Docket Clerk, Room 924-A, Federal AviationAdministration, 800**lndep.e!)~nce** Avenue, S.W., Washington, DC 20591, and to agency counsel. Sel"Yicciiupon the presidingjudgeis optionaL