U.S. Department of Transportation Federal Aviation Administration 

### June 3, 2013 CERTIFIED Hearing Docket Office ofthe Chief Counsel· · Enforcement Division**-~** i 2



### Federal Aviation Administration 800 Independence Avenue, S. W. Washington, DC 20591 Attn: Hearing Docket Clerk AGC-430, Wilber Wright Building Suite 2W1000 -,_ , ... 800 Independence Ave., SW. -' t:**~** LWashington, DC 20591 

### Area Code 202 267-7100 

# RECEIVED JUN -7 2013 

## HEARING DOCKET



# . . . lf[)mS**~~3- ~fCf**  Re: Bald Mountam A1r Servtce, Inc. ..., h 

## q/6 FAACaseNo.: 2013WA910046**~OJ3rfk00** 

### ..**~~** 

### Enclosed herewith please find a copy ofa request for hearing andthe original and one copy of the Complaint inthe above-referencedproceeding. The FAArequests that the hearing in this matter be held in Anchorage, Alaska, and expects that the hearing will last one day. Please address all communications for the FAAto the undersigned at: Office ofthe ChiefCounsel 800 Independence Avenue, S.W. Washington, D.C. 20591 Ph: 202-267-7100 Fax: 202-267-5106 E-mail: michael.f.mckinley@faa.gov

Enclosures: Request for Hearing Complaint
cc: Respondent (w/copy ofComplaint)

# Since~r.# M¥.elF. McKinley

# ~ Senior AttorneyCERTIFICATE OF SERVICE
I hereby certify that I have, this date, served the foregoing Complaintby mailing the following copies, Certified Mail (ReturnReceipt Requested): Original and 1 Copy:

One Copy:

Datedthis 4th day ofOctober, 2012. Hearing Docket Federal Aviation Administration 800 Independence Avenue, S. W. Washington, DC 20591 Attn: Hearing Docket Clerk AGC-430, Wilber Wright Building Suite 2Wl000

Dave Magorien Magorien Honing & Hydraulics 1212 SouthVail Avenue Montenbello, CA 90640U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, D.C.

IN THE MATTER OF BALD MOUNTAIN AIR SERVICE, INC. FAA DOCKETNO. (not assigned) (Civil Penalty Action) FDMS NO. (not assigned) FAA CASE NO. 2013WA910046

COMPLAINT 

# RECEIVED JUN -7 2013 

## HEARING DOCKET

The Federal Aviation Administration (FAA), by counsel, hereby files its Complaint, pursuantto Rule 208 ofthe Rules ofPractice (14 C.F.R. 13.208), and states as follows: 

### I 1. OnMay 16, 2013, Bald Mountain Air Service, Inc. (Respondent) was advised by a Final Notice ofProposed Civil Penalty that the FAAproposed to assess a civil penalty inthe amount of$62,725. On May 31,2013, Respondent submitted a written request for a hearing.
2. On all relevant dates herein, Respondent was the holder ofAir Carrier CertificateNumber YQPA987Uwith operations specifications appropriate to operations under part 135.

3. On all relevant dates herein, Respondent was required to comply withtherequirements of 14 C.F.R. part 120 and 49 C.F.R. part 40 for its drug and alcohol testingprogram.

### 4. Respondent hired Jimmie Brown onApril23, 2012 to perform safety sensitive functions as an aircraft mechanic. 2



### 5. Jimmie Brown was not added to the random drug and alcohol testing pool until August 2, 2012. 6. As a result ofparagraphs 3 and 4, above, Jimmie Brown was not subject to random drug and alcohol testing conducted on July 5, 2012. 7. Respondent did not determine that the following contractor, Bill Ryan, an employee ofAviation Management Consulting Services, LLC, was covered under a FAA-mandated drug testing program and alcohol misuse prevention program priorto Bald Mountain using Aviation Management's consulting services. 8. Respondent did not conduct a pre-employment test and/or receive a verified negative result prior to hiring the following employees for a safety-sensitive function:

### 3 Date of Date ofDOT Pre- Date ofVerified Employee Occupation Hire or EmploymentDrug Negative Drug Transfer Test Test Result 

### BryanBell Pilot 8/3/2011 8/5/2011 8/9/2011 Don Cogbill A&PMech 7/17/2011 8/3/2011 8/5/2011 DougEpps Pilot 10/24/2012 10/30/2012 11/5/2012 MarkFischer A&PMech 3/26/2012 3/26/2012 3/27/2012 Jesse Kirby A&PMech 6/20/2011 6/20/2011 6/23/2011 Tracey Kraun Pilot 8/15/2011 8/26/2011 8/30/2011 Robert McSheehy Pilot 8115/2011 8/12/2011 8/16/2011 Richard Merculief Pilot 9/6/2011 9/7/2011 9/8/2011 DeborahMoseley Pilot 7/10/2012 7/9/2012 7/12/2012 Travis Port A&PMech 6/4/2012 6/4/2012 6/6/2012 JoshuaRudolf A&PMech 1/23/2012 1123/2012 1/26/2012 ShawnWilcock A&PMech 6/20/2011 6/20/2011 6/23/2011 Erin Witt Pilot 8/5/2011 8/29/2011 8/30/2011

9. Respondent failed to perform drug and alcohol record checks onthe following employees priorto the first day they performed safety-sensitive duties:
Employee Violation Date 

### Jimmie Brown April23, 2012

### 4 Donald Cogbill July 17, 2011 Mark Fischer March 26, 2012 Travis Port June 4, 2012

10. Respondent allowed the following employees to continue performing safety-sensitive work for more than 30 days withoutreceiving ormaking a good-faith effort to obtain their previous drug and alcohol testing records from previous employers:
Employee Violation Date 

### Jimmie Brown May 23,2012 Donald Cogbill August 17. 2011 MarkFischer April26, 2012 Travis Port July 4, 2012 Steven Andersen August 1, 2012 Douglas Epps November 23,2012 UllaRasilainen August 18, 2012 Woodson Saunders August 15, 2012 Dustin Tallman December 20,2012 Craig Young March 10,20125 By reason ofthe foregoing, Respondent violatedthe following Federal Aviation Regulations:
a. 

### 14 C.F.R § 120.105(e)- Which states that each employee, including anyassistant, helper,.orindividual in a training status, who performs a safety-sensitive function listed inthis section directly or by contract (including by subcontract at any tier) for an employer as defined inthis subpart mustbe subjectto drug testing under a drug testing program implemented in accordance with this subpart. This includes full-time, parttime, temporary, and intermittent employees regardless ofthe degree ofsupervision. The safety-sensitive functions are: Aircraft maintenance andpreventive maintenance duties.

b. 

### 14 C.F.R § 120.109(a)(1)- Which statesthatno employer may hire an individual for
a safety-sensitive function listen in 14 C.F.R. § 120.105, unless the employer first conducts a pre-employment DOT approved drug test and receives a verifiednegative result for that corresponding individual.

c. 

### 14 C.F.R § 120.109(b)- Which states that each employer shall conductthe types of testing described inthis sectionin accordance withthe procedures set forth inthis subpart and the DOT "Procedures for Transportation Workplace Drug Testing Programs" (49 C.F.R. part 40), including, (b) Random drug testing.

d. 

### 14 C.F.R § 120.109(b)(6)(i)(B)- Which states to calculate the average number of safety-sensitive employees eligible for random testing throughout the year, add the total number ofsafety-sensitive employees eligible for testing during eachrandomtesting period for the year and divide that total by the number ofrandom testing periods. Only safety-sensitive employees are to be in anemployer's random testing pool, and all safety-sensitive employees must be in the random pool. Ifyou are an employer conducting random testing more often than once per month 

### (e.g., you select daily, weekly, bi-weekly) you do not need to compute this total number ofsafetysensitive employees more than ona once per monthbasis. 

### 6

e. 14 C.F.R § 120.117(a)(5)- Which states, each company must meetthe requirements ofthis subpart. Use the following chart to determine whether your company must obtain an Antidrug and Alcohol Misuse Prevention Program Operations Specification
orwhether youmust register withthe FAA:
Ifyou are ... You must ... (5) A contractor Register with the FAA, Office ofAerospace Medicine, Drug who has your Abatement Division (AAM-800), 800 Independence
own drug Avenue, SW., Washington, DC 20591, ifyou optto conduct testing program your own drug testing program.

f. 14 C.F.R § 120.215(a)(5)- Which states, each employee, including any assistant, helper, or individual in a training status, who performs a safety-sensitive function listed inthis section directly orby contract (including by subcontract at any tier) for an employer as defined inthis subpart must be subject to alcohol testing under an alcohol testing program implemented in accordance withthis subpart: This includes full-time,part-time, temporary, and intermittent employees regardless ofthe degree of supervision. The safety-sensitive functions are aircraft maintenance orpreventative maintenance duties.

g. 14 C.F.R § 120.217(c)(6)(i)(B)- Which states to calculate the average number of safety-sensitive employees eligible for random testing throughout the year, addthe total number ofsafety-sensitive employees eligible for testing during eachrandom testing period for the year and divide that total by the number ofrandom testing periods. Only safety-sensitive employees are tobe in an employer's random testing pool, and all safety-sensitive employees mustbe inthe random pool. Ifyou are an employer conductingrandom testing more often than once permonth 

### (e.g., you select daily, weekly, bi-weekly) you do not need to compute this total number ofsafetysensitive employees more than on a once per monthbasis.

h. 14 C.F.R § 120.225(a)(S)- Which states, each company must meetthe requirements ofthis subpart. Use the following chartto determine whether your company must obtain an Antidrug and Alcohol Misuse Prevention Program Operations Specification
orwhether you must register withthe FAA:
Ifyou are ... You must ... 7

(5) A contractor Register withthe FAA, Office ofAerospace Medicine, Drug who has your Abatement Division (AAM-800), 800 Independence8

own alcohol Avenue, SW., Washington, DC 20591, ifyouoptto conduct testing program your own alcohol testing program.

1. 

### 49 C.F.R § 40.25(a)- Which states as an employer, youmust, after obtaining an employee's written consent, request the information about the employee listed in paragraph (b) ofthis section. This requirement applies only to employees seeking to beginperforming safety-sensitive duties for youfor the first time (i.e., a newhire, an employee transfers into a safety-sensitive position). Ifthe employee refuses to provide this written consent, youmust notpermitthe employee to perform safety-sensitive functions.

J. 

### 49 C.F.R § 40.25(d)- Which states iffeasible, [employer] must obtain and review this informationbefore the employee firs performs safety-sensitive functions. Ifthis is not feasible, you must obtain andreviewthe information as soon as possible. However, youmust notpermitthe employee to perform safety-sensitive functions after 30 days from the date onwhichthe employee first performed safety-sensitive functions, unless youhave obtained ormade and documented a good faith effort to obtainthis information.



### k. 49 C.F.R § 40.25G)- Which states As the employer, youmust also ask the employee whetherhe or she has tested positive, orrefused to test, on any pre-employment drug
or alcohol test administered by an employerto which the employee applied for, but did not obtain, safety-sensitive transportation work coveredby DOT agency drug and9 alcohol testing rules during the past two years. Ifthe employee admits thathe or she had a positive test or a refusal to test, you must not use the employee to perform safety-sensitive functions for you, until andunless the employee documents successful completion ofthereturn-to-duty process (see paragraphs (b)(5) and (e) ofthis section). Pursuantto Title 49 ofthe United States Code, Section 46301, Respondent is subjectto a civil penalty not to exceed $11,000 for each violation alleged. Under the facts and circumstances ofthis case, a civil penalty of$62,725 is appropriate. 

### WHEREFORE, the Agency, by counsel, respectfully requests thatthe Administrative LawJudge enter an Orderthat Respondent be assessed a civil penalty 

### inthe amount of$62,725. Respectfully submitted this 3rd day ofJune, 2013.

Senior Attorney Office ofthe ChiefCounsel 800 Independence Avenue, S.W. Washington, D.C. 20591 Ph: 202-267-7100 Fax: 202-267-5106 E-mail: michael.f.mckinley@faa.gov10 CERTIFICATE OF SERVICE I hereby certify thatthe foregoing Complainthas beenmailed this date by Certified Mail, Return ReceiptRequested, to: Original and One Copy:

One Copy: Hearing Docket Federal Aviation Administration 800 Independence Avenue, S. W. Washington, DC 20591 Attn: Hearing Docket Clerk AGC-430, Wilber Wright Building Suite 2Wl000

Mr. Gary Porter President BaldMountain Air Service, Inc. PO Box 3134 Homer, AK 99603
Datedthis 3rd day ofJune, 2013

## ..

Federal Aviation Administration 600 Independence Avenue, SW Wilber Wright Building- Suite lWlOOO Washington, DC 20591 ATTN: Hearing Docket Clerk, AGC-430 CC: Michael F. McKinley, Senior Attorney Enforcement Division 1 AGC-300 Office ofthe Chief Council 800 Independence Avenue, SW Washington, DC 20591 Date: May 31, 2013 Certified Return Receipt & Email to M. McKinley Certified Return Receipt to FAA Hearing Docket Clerk, AGC-430 Ref: Case No. 2013WA910046 Bald Mountain Air Service Inc., Air Carrier Certificate Number YQPA987U, is requesting a hearing in this case. Bald Mountain Air Service disagrees with the amount ofcivil penalty proposed. Bald Mountain Air Service requests a hearing be held in Anchorage Alaska. This request is made under provisions ofTitle 14, Part 13, Subpart C, 13.16 {b)(3). Bald Mountain Air Service Inc. is sending this request to both the FAA attorney in the notice and to the Hearing Docket Clerk at: Federal Aviation Administration 600 Independence Avenue, SW Wilber Wright Building- Suite 2W1000 Washington, DC 20591 ATIN: Hearing Docket Clerk, AGC-430 From: Bald Mountain Air Service Inc. P.O. Box 3134

### ~mer~~

## ~~~~).~~~**GaryD.~er** Vice President

PO. Box 3134 Horner, Alaska 89603
Fax 007-235-6602 \t-Jvvvv.haidrnountainair.corn