In the matter of 

UNITED STATES OF AMERICA 

FEDERAL AVIATION ADMINISTRATION 

WASHINGTON, D.C. 

RECEIVED 

SEP 0 7 2012 

HEARING DOCKET ) 

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FAA Docket No. CPlOSOOOll 

M & R HELICOPTERS, LLC ,..._, 

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DMS No. FAA-2010-1211 ,._, 

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COMPLAINANT'S REPLY BRIEF 

Pursuant to 14 C.F.R. § 13.233(e), Complainant submits this Reply to 

Respondent's Appeal Brief which perfects Respondent's appeal of the Initial Decision of 

Administrative Law Judge Richard C. Goodwin (the "ALJ") issued on June 18, 2012 in 

the above captioned matter. 

I. STATEMENT OF THE CASE 

Complainant served M & R Helicopters, LLC ("Respondent") with a Notice of 

Proposed Civil Penalty on July 23,2010, in the amount of$5,400, for violations ofthe 

Federal Aviation Regulations ("F ARs"). 1 An informal conference was held with 

Respondent, FAA attorneys, and a representative from the Drug Abatement Division of 

the Office of Aerospace Medicine on October 1, 2010. A Final Notice ofProposed Civil 

Penalty was issued on October 21, 2010. Respondent requested a hearing on October 27, 

2010 and the Complaint was then filed on November 17, 2010. The Complaint has since 

been amended twice, once on December 10, 2010 to remove certain allegations and 

reduce the penalty to $4,400, and again on August 11, 2011 in order to correct 

typographical errors. 

1 The specific violations alleged are 14 C.F.R. §§ 135.251(a) and 135.255(b). 
,. ) 

Respondent filed his Preliminary Objections, which appear to serve as his 

Answer, on November 27, 2010. In his Preliminary Objections, Respondent agreed that 

Mr. Edward Baker III performed safety-sensitive functions for Respondent on July 24, 

2008. (Prelim. Objections at 3). In addition, Respondent agreed in part that Respondent is 

now, and at all times mentioned in the Complaint was, the holder of Air Carrier 

Certificate No. MR3A020K, issued under 14 C.P.R. part 119 and with operations 

specifications authorizing it to conduct operations under 14 C.P.R. part 135 ofthe PARs. 

Id. at 2. Respondent, however, asserted that it "has not been able to carry on part 135 

operations since August 2007." I d. Respondent denied all of the other allegations listed in 

the Complaint. 

On March 25, 2011, a conference call was held among Chief Administrative Law 

Judge Yoder, Complainant and Respondent. On May 27,2011, Complainant filed its Prehearing Brief in accordance with Judge Yoder's direction. On June 3, 2011, Respondent 

filed its Reply to Complainant's Brief. These proceedings were re-assigned to the ALJ on 

June 10, 2011. On August 2, 2011, Complainant filed a Motion to Compel Discovery. In 

response, on August 15, 2011, the ALJ served upon Respondent an Order to Respondent 

to Show Cause. On August 25, 2011, Respondent filed his Reply to the Order to Show 

Cause. On September 29, 2011, the ALJ served an Order finding that because 

Respondent failed to file adequate responses to the issues raised in the Order to 

Respondent to Show Cause, Respondent "will be foreclosed at the hearing from offering 

or relying upon any documents, or any information contained in them, or any witnesses, 

regarding which it has failed to notice in response to Complainant's discovery request." 

(Order Sanctioning Resp't at 1). Respondent subsequently filed a Motion for 

2 
Reconsideration on October 3, 2011, which the ALJ denied in his Order Denying 

Respondent's Motion filed on October 18, 2011. 

On November 15, 2011, Complainant filed a Motion for Decision. On 

December 1, 2011, Respondent filed a Brief Supporting the Motion for Decision to 

Dismiss Complaint. On December 5, 2011, the ALJ issued an Order Denying Motions. 

On January 26-27, 2012, a hearing for this matter was held in Easton, PA before 

the ALJ. On February 21, 2012, the ALJ issued an Order Setting Out Briefing Schedule. 

The ALJ served his Initial Decision on June 18, 2012 affirming the Complaint and 

assessing a civil penalty of$4,400. Respondent filed a timely notice of appeal on June 21, 

2012. 

II. STATEMENT OF FACTS 

Respondent is the holder of Air Carrier Certificate No. MR3A020K, issued under 

14 C.F .R. part 119 and with operations specifications authorizing it to conduct operations 

under 14 C.P.R. part 135 ofthe FARs. (Exh. A-1). Respondent in its operations 

specifications certified that it would comply with the requirements of 14 C.P.R. part 121, 

Appendices I and J and 49 C.F .R. part 40 for its Antidrug and Alcohol Misuse Prevention 

Program? (Exh. A-2). On July 21 and 23,2009, the FAA conducted an inspection of 

Respondent's DOT-required drug and alcohol testing programs. (Exh. A-7). During the 

investigation, it was discovered that on July 24, 2008, safety-sensitive maintenance work 

was performed on Respondent's aircraft (N98CM) which was listed on Respondent's part 

135 operations specifications. (Exh. A-4; Exh. A-3; Tr. 87: 3-10; 227: 18-22). This 

maintenance was performed by Edward Baker III. (Exh. A-4; Tr. 87-8: 18-10). 

2 Appendices I and J were recodified into 14 C.F .R. part 120 in 2009. Citations in this brief are to Appendix 

I and J as in effect in 2008 unless otherwise noted. 

3 
Mr. Baker, who is employed by Air Methods, performed this work for Respondent in his 

capacity as an "independent contractor." (Tr. 228: 2-8). Mr. Baker performed the work 

directly for Respondent. Id. Mr. Baker was not included in Respondent's random drug 

and alcohol testing pools. (Exh. A-6: Tr. 228-9: 22-3). Mr. Baker did not have his own 

DOT-required drug or alcohol testing programs. (Tr. 204: 11-13; 228: 18-20). Mr. Baker 

did not perform the work on Respondent's aircraft on behalf of either Air Methods or the 

Air National Guard. (Tr. 228: 2-8). Respondent's Air Carrier Certificate No. 

MR3A020K, issued under 14 C.F.R. part 119 with operations specifications authorizing 

it to conduct operations under 14 C.F.R. part 135 of the FARs, was active at the time of 

the violation, at the time of the inspection, and continued to be active as ofNovember 29, 

2011. (Tr. 164-5: 18-5; 165: 21-22; 168: 9-15; 333-4: 14-20). At the hearing Respondent 

did not testify under oath in support of his case. Respondent introduced seven exhibits 

and otherwise relied upon only direct examination of Mr. Baker and cross-examination of 

Complainant's witnesses as well as his post-hearing brief. 

ALJ's Written Initial Decision 

The ALJ affirmed the Complaint and assessed Respondent a civil penalty of 

$4,400. Specifically, the ALJ found that Respondent violated 14 C.F.R. §§ 135.251(a) 

and 135.255(b) as charged. (Initial Dec. at 4). The ALJ found that "as an aviation entity 

holding a Part 119 certificate and authorized to conduct operations under Part 135, 

[Respondent] was required to adhere to the drug and alcohol testing regulations then 

effective." Id. He further found that Respondent "was an employer who had hired an 

employee to perform a safety-sensitive task," and that the employee "was not part of a 

4 
random pool for drug or alcohol screening either of his own creation or sponsored by 

Respondent." Id. at 5. 

The ALJ addressed Respondent's defenses and rejected each one. The ALJ found 

that Respondent's ability or inability to operate was "not germane to the violations." Id. 

Rather, the ALJ stated that it is the validity of Respondent's operating certificate that is 

applicable, and to that end, the ALJ found that Respondent's operating specifications 

were current and valid. Id. 

The ALJ also rejected Respondent's argument that because the company had 

undergone a name change the underlying certificate was no longer valid. Id. The ALJ 

stated once again that the certificate remained unchanged and that the certificate was still 

valid. Id. 

The ALJ then rejected Respondent's argument that because Respondent had not 

flown the helicopter listed on its operations specifications, safety was not implicated and 

no violation ensued. Id. The ALJ stated that the fact "[t]hat the aircraft was not operated 

is a fortuitous circumstance," and it was "the risk to aviation safety triggered by the 

conduct of Respondent's employee that constitutes the prohibited behavior." Id. 

Finally, the ALJ rejected Respondent's arguments that Respondent had no notice 

of the regulations or any changes thereto. First, the ALJ found that it is the certificate 

holder's "duty to acquire and maintain knowledge of all applicable requirements." Id. at 

6. Second, the ALJ found that the regulation was properly published in the Federal 

Register and that such publication "provides notice sufficient under the Constitution to all 

interested parties." Id. 

5 
III. STANDARD OF REVIEW 

On appeal, the P AA Decisionmaker considers whether each finding of fact is 

supported by a preponderance of reliable, probative, and substantial evidence, and 

whether each conclusion of law is made in accordance with applicable law, precedent, 

and public policy. 14 C.P.R. § 13.233(b)(l)-(2). 

IV. COUNTERSTATEMENT OF THE ISSUES 

1. Whether the ALJ's finding that Respondent violated 14 C.F.R. 

§§ 135.251(a) and 135.255(b) is supported by a preponderance of the 

reliable, probative, and substantial evidence, and is consistent with 

applicable law, precedent, and public policy. 

2. Whether The ALJ's finding that the regulations cited in the complaint 

were properly promulgated is in accordance with applicable law. 

3. Whether the ALJ's sanction assessment is supported by a preponderance 

of the reliable, probative, and substantial evidence, and is consistent with 

applicable law, precedent, and public policy. 

V. ARGUMENT 

1. The ALJ's finding that Respondent violated 14 C.F.R. §§ 135.251(a) and 

135.255(b) is supported by a preponderance of the reliable, probative, and 

substantial evidence, and is consistent with applicable law, precedent, and public 

policy. 

A. On or About June 24,2008, Mr. Baker Performed Safety-Sensitive Work 

for Respondent and Was Therefore Required to be Subject to DOTRequired Drug and Alcohol Testing 

On June 24, 2008, Mr. Baker as a contractor working for Respondent performed 

safety-sensitive maintenance or preventive maintenance on aircraft (N98CM) which was 

the aircraft listed on Respondent's operations specifications. He was therefore required to 

be subject to DOT-required drug and alcohol testing. Under 14 C.P.R. part 121, 

Appendix I, § III, an employee who performs aircraft maintenance and preventive 

maintenance duties on aircraft subject to an air carrier's operations specifications, directly 

6 
or by contract, is performing a safety-sensitive function and must be subject to drug 

testing under an antidrug program implemented in accordance with that appendix. 3 

Under 14 C.P.R. part 121, Appendix J, § II.A, an employee who performs aircraft 

maintenance or preventive maintenance duties on an aircraft subject to the air carrier's 

operations specifications, directly or by contract, is performing a safety-sensitive function 

and must be subject to alcohol testing under an Alcohol Misuse Prevention Program 

("AMPP") implemented in accordance with that appendix. 4 

On June 24, 2008, Mr. Baker performed safety-sensitive functions for Respondent 

in that he performed maintenance or preventive maintenance by performing a vibration 

balance check on Respondent's aircraft, which is listed on Respondent's operations 

specifications, and signing paperwork related to the performance of that maintenance. 

(Exh. A-4; Exh. A-3; Tr. 87: 3-10; 227-8: 15-1). Therefore, Mr. Baker was required to be 

subject to DOT-required drug and alcohol testing in accordance with 14 C.P.R. part 121, 

Appendices I and J. 

3 14 C.F.R. part 121, Appendix I, §III -Employees Who Must be Tested. Each employee, including any 

assistant, helper, or individual in a training status, who performs a safety-sensitive function listed in this 

section directly or by contract (including by subcontract at any tier) for an employer as defmed in this 

appendix must be subject to drug testing under an antidrug program implemented in accordance with this 

appendix. This includes full-time, part-time, temporary, and intermittent employees regardless of the 

degree of supervision. The safety-sensitive functions are: E. Aircraft maintenance and preventive 

maintenance duties. 

4 14 C.F.R. part 121, Appendix J, § II.A -Covered Employees 

A. Each employee, including any assistant, helper, or individual in a training status, who performs 

a safety-sensitive function listed in this section directly or by contract (including by subcontract at any tier) 

for an employer as defined in this appendix must be subject to alcohol testing under an alcohol misuse 

prevention program implemented in accordance with this appendix. This includes full-time, part-time, 

temporary, and intermittent employees regardless ofthe degree of supervision. The safety-sensitive 

functions are: 5. Aircraft maintenance or preventive maintenance duties. 

7 
B. On or About June 24,2008, Respondent Was an Employer Under 14 

C.P.R. part 121, Appendices I and J. 

Respondent was an employer as defined in 14 C.P.R. part 121, Appendices I and 

J. 14 C.P.R. part 121, Appendix I,§ II defines "employer" as "a part 119 certificate 

holder with authority to operate under parts 121 and/or 135 .... " 14 C.P.R. part 121, 

Appendix J, § I.D defines "employer" as "a part 119 certificate holder with authority to 

operate under parts 121 and/or 135 .... "Respondent is the holder of Air Carrier 

Certificate No. MR3A020K, issued under 14 C.P.R. part 119 and authorized to conduct 

operations under 14 C.P.R. part 135 ofthe PARs, and is therefore an "employer" as 

defined in both 14 C.P.R. part 121, Appendices I and J. (Exh. A-1; Tr. 107-8: 19-7; 190: 

7-20). 

C. On or About June 24,2008, Mr. Baker Was an Employee of Respondent 

Under 14 C.P.R. part 121, Appendices I and J. 

Mr. Baker was an employee of Respondent as defined in 14 C.P.R. part 121, 

Appendices I and J. 14 C.P.R. part 121, Appendix I,§ II defines "employee" as "a person 

who is hired, either directly or by contract, to perform a safety-sensitive function for an 

employer .... " 14 C.P.R. part 121, Appendix J, § I.D defines "covered employee" as "a 

person who performs, either directly or by contract, a safety sensitive function listed in 

section II of the appendix for an employer .... " 

As discussed above, Mr. Baker performed safety sensitive functions when he 

performed maintenance or preventive maintenance by performing a vibration balance 

check on Respondent's part 135 aircraft and signing paperwork related to the 

performance ofthat maintenance. (Exh. A-4; Exh. A-3; Tr. 87: 3-10; 227-8: 15-1). 

8 
Mr. Baker performed this work as an independent contractor and not in his capacity as an 

employee of either Air Methods or the Air National Guard. (Tr. 228: 2-8). Therefore, 

Mr. Baker was an employee ofRespondent as defined by both 14 C.F.R. part 121, 

Appendices I and J. (Tr. 108-9: 8-14; 190-2: 21-2). 

D. On or About June 24, 2008, Mr. Baker Was Not Covered Under 

Respondent's DOT-Required Drug or Alcohol Testing Programs or His 

Own DOT-Required Drug or Alcohol Testing Programs. 

Mr. Baker was not covered under Respondent's DOT-required drug or alcohol 

testing programs or his own DOT-required drug or alcohol testing programs. Mr. Baker 

was not included in Respondent's random pool for DOT -required drug and alcohol 

testing when he performed a safety-sensitive function for Respondent on July 24, 2008. 

(Exh. A-6; Tr. 228-9: 22-3). Mr. Baker did not have and was not included in his own 

FAA-mandated antidrug program or AMPP at the time he performed safety-sensitive 

functions for Respondent on July 24, 2008. (Tr. 204: 11-13; 228: 18-21). 

Respondent denies these facts based on an erroneous understanding of the 

regulations and the so-called "moonlighting" loophole which previously allowed 

employers to utilize safety-sensitive employees who were under another employer's drug 

testing program regardless of whether the other employer had a contractual relationship 

with the employer who hired the moonlighter. (Tr. 67: 15-17; 68: 11-14; 106: 11-21; 192: 

6-9). However, the "moonlighting" loophole has no bearing on this matter because the 

loophole was closed in 2004 and the regulation now explicitly prohibits that practice. 

(Exh. A-ll; Tr. 107: 2-11; 192: 15-16; 197: 11-21; 299: 16-13). Therefore, employees 

who performed safety-sensitive functions for Respondent were required to either be 

included in Respondent's drug and alcohol testing programs or be included in the drug 

9 
and alcohol testing programs of a company with whom Respondent contracted to provide 

such safety-sensitive functions. In this case, Mr. Baker was not under Respondent's drug 

and alcohol testing programs or under the drug and alcohol testing programs of a 

company that was contracted with Respondent to provide safety-sensitive functions. 

E. On or About June 24, 2008, Respondent Had an Active Part 119 

Certificate With Operations Specifications Authorizing Part 135 

Operations. 

Respondent is, and at the time of the violations was, the holder of Air Carrier 

Certificate No. MR3A020K, issued under 14 C.F.R. part 119 and authorized to conduct 

operations under 14 C.F.R. part 135 ofthe FARs. (Exh. A-1; Tr: 164-5: 18-5; 165: 21-22; 

168: 9-15; 333-4: 14-20). Respondent claims that it was non-operational at the time of the 

violations. (Resp't's Appeal Br. at 7). 

To support this argument, Respondent states that "the operational specifications 

and compliance statements required updating, to reflect the new name and current with 

confirmatory signatures," yet he provides no reference to any regulation, statute, 

testimony or evidence in the record to support that proposition. Id. at 9. Additionally, the 

evidence in the record establishes that Respondent retained its part 119 certificate 

authorizing it to operate under part 135. (Tr. 331: 5-20; 334: 4-20). 

Respondent also asserts that the company "underwent a corporation and name 

change making the operations specifications invalid." (Resp't's Appeal Br. at 9). In 

support of this assertion, Respondent points to Exhibit R-7, which is merely a 

Pennsylvania corporate name change document and has absolutely nothing to do with 

whether the operations specifications were active or not. (Tr. 331: 5-16). Respondent 

further states that the "FDSO [sic] instructed Respondent to do no part 135 flights until 

10 
the [operations specifications] were undated [sic] to reflect changes." (Resp't's Appeal 

Br. at 7-8). This statement is completely without support in the record. 

Respondent also claims that it withdrew from "all part 135 operations due to 

human factors beyond his control," however, the record clearly supports the fact that 

Respondent never surrendered its certificate and that Respondent still had an active 

certificate. (Resp't's Appeal Br. at 8; Tr. 334: 10-20). The fact is, as fully supported by 

the record, Respondent's operations specifications were active at the time of the 

violation, at the time of the inspection, and continued to be active as ofNovember 29, 

2011. (Tr. 164-5: 18-5; 165: 21-22; 168: 9-15; 333-4: 14-20). 

At hearing, Respondent offered a letter from the FAA stating that Dr. Selig failed 

his Airman Competency/Proficiency Check and was therefore precluded from acting as a 

pilot during 14 C.F.R. part 135 operations. (Exh. R-6). However, the letter offered by 

Respondent only pertains to Dr. Selig's ability to act as a pilot in command during part 

13 5 operations and has no impact on the operational status of Respondent's Air Carrier 

Certificate. (Tr. 167: 3-11). 

Respondent also argues that the FAA's DeJoseph Letter of Interpretation is not 

applicable to this case and that FAA v. David E. Everson, d/b/a, North Valley 

Helicopters5 and In the Matter of: David E. Everson, d/b/a North Valley Helicopters, Inc. 

6 

are. 

5 FAA v. David E. Everson. d/b/a, North Valley Helicopters, FAA Docket No. CP99W A0002 (2000). 

In the Matter of: David E. Everson, d/b/a North Valley Helicopters. Inc., FAA Order No. 2004-5, Docket 

No. CPOOWAOOOl (EAJA) (Sep. 22, 2004). 

11 
1. The FAA guidance contained in the DeJoseph Letter of Interpretation is 

directly applicable to Respondent's violations. 

Respondent dismisses out of hand the DeJoseph Letter of Interpretation but this 

interpretation is clearly applicable to the case at hand. See FAA Letter of Interpretation 

issued by Rebecca MacPherson, Assistant Chief Counsel, Regulations, to Fran DeJoseph 

(2006 WL 3792063 (D.O.T.)). (Exh. A-13). In this letter of interpretation, the FAA 

directly addressed the issue of the interrelationship of the drug and alcohol testing 

requirements with holding a part 119 certificate with operation specifications authorizing 

operations under part 13 5. I d. The FAA made it clear that aircraft listed on operations 

specifications issued under 14 C.F.R. part 135 must be maintained in accordance with 

part 135. Id. This includes having all maintenance that is performed on the aircraft to be 

done by a mechanic who is subject to the drug and alcohol testing requirements of part 

121. Id. To illustrate, the FAA noted that 14 C.F.R. § 135.251(c) "contemplates a 

situation in which an aircraft requires emergency maintenance and there are no 

maintenance providers subject to appendix I of part 121 at the airport." Id. In these cases, 

14 C.F.R. § 135.251(c) would allow for maintenance to be performed by an individual 

not subject to Appendix I, but the operator would then have to notify the FAA within 10 

days of this maintenance and also have the aircraft inspected at the next airport where 

they could have individuals who are under the drug-testing regulations perform the 

inspection. Id. The FAA then made it clear that "[ o ]ther than in the circumstances 

described in section 135.251(c), maintenance by persons not tested pursuant to appendix I 

of part 121 'is prohibited on aircraft operated under part 135."7 Id. Non-emergency 

maintenance on an aircraft that is listed on the operations specifications of a part 119 

7 Respondent has not produced any evidence to support that it falls under the exception in section 

135.251(c). 

12 
certificate holder with operations specifications authorizing it to conduct operations under 

part 135 by a person not under the drug and alcohol testing requirements "would be a 

violation of the regulations, which could result in penalties and require corrective actions, 

including the possible removal of the aircraft from the certificate holder's operations 

specifications." DeJoseph Letter oflnterpretation, citing 14 C.P.R.§ 119.51. 

The DeJoseph Letter of Interpretation also addressed the issues surrounding what 

regulations must be adhered to when a part 119 certificate holder with operations 

specifications authorizing it to conduct operations under part 135 is not operating under 

part 13 5, but under part 91. The P AA acknowledged that when conducting part 91 

operations, flights may be conducted under part 91 operating rules, but "[i]fan aircraft is 

listed on the operation specifications of a part 135 certificate holder, certain part 135 

requirements, such as compliance with approved maintenance programs, apply 

continuously without interruption." Del oseph Letter of Interpretation. Even if an aircraft 

listed on a part 135 certificate holder's operations specifications is operated under part 

91, the operator "would be required to comply with the drug and alcohol testing 

requirements of 14 C.P.R. sections 135.249-135.255 and also section 135.253." Id Any 

maintenance performed on an aircraft that is listed on a part 135 operator's operations 

specifications that is "done by a mechanic that does not meet the drug and alcohol 

requirements of PAR 13 5 and 121" is a violation, and such "violation would occur at the 

time such maintenance is performed." I d. In these situations, "[ w ]hether the aircraft is 

flown is not relevant." I d. 

The holder of a part 119 certificate with operations specifications authorizing 

operations under part 135 is required to maintain the aircraft listed in the holder's 

13 
operations specifications in accordance with part 135. (Tr. 327-8: 18-3). This includes 

having any maintenance performed on such aircraft be done by an individual that meets 

the drug and alcohol requirements of parts 135 and 121 regardless of whether the 

operator is conducting flights. (Tr. 328: 4-7; 328-30: 16-8). Respondent is the holder of a 

part 119 certificate with operations specifications authorizing operations under part 13 5 

and is therefore required to maintain its aircraft in accordance with part 135. (Exh. A-1; 

Tr. 328: 16-20). Therefore, Respondent was required to have any maintenance performed 

on an aircraft listed in its operations specifications be done by an individual that meets 

the drug and alcohol testing requirements of parts 135 and 121. (Tr. 329-30: 21-8). 

Respondent had maintenance performed on its aircraft by an individual that did not meet 

those requirements. 

ii. FAA v. David E. Everson, d/b/a/, North Valley Helicopters is not 

applicable in this matter. 

Respondent raises the issue of whether or not it had an active part 119 certificate 

with operations specifications authorizing it to conduct operations under part 135, citing 

Everson for the proposition that Respondent's certificate was not active. (Resp't's Appeal 

Br. at 9-11 ). Respondent errs in citing this case because the holding in Everson is not 

applicable here. 

(1) Respondent had commenced operating under part 135. 

In Everson, Judge Kolko found that the "Respondent was not obligated to create 

or implement an antidrug program or an AMPP prior to the carrier's actual submission of 

such plans to the FAA."8 Everson at 2. In that case, the 14 C.F.R. part 119 certificate 

8 The Everson case is not precedent for the purposes of this matter. The FAA chose not to appeal Judge 

Kolko's initial decision and the FAA Decisionmaker did not make a finding as to Judge Kolko's decision. 

14 
holder with operations specifications authorizing it to conduct operations under part 135 

was cited for numerous violations including failing to implement drug and alcohol testing 

programs and to perform such testing on its safety-sensitive employees. Id. However, the 

Respondent in Everson had never commenced part 13 5 operations. 

In Everson, the company was not required to follow an antidrug program because 

it did not have to submit an antidrug program plan to the FAA and obtain approval prior 

to beginning part 135 operations. See 14 C.P.R. part 121, Appendix I,§ IX.2(a) (1996). 

The drug testing program needed to be implemented "no later than the date of inception 

of operations." Id. In that case, the company had not commenced part 135 operations and 

therefore did not need to implement its drug testing program. This requirement was 

amended in 2004 such that 14 C.P.R. part 121, Appendix I,§ IX.B.1 (2004) required that 

a company applying to conduct operations under part 135 must "[i]mplement an FAA 

antidrug. program no later than the date you start operations, and meet the requirements of 

this appendix." 

In this case, Respondent commenced 14 C.P.R. part 135 operations in or prior to 

2005 and continues to have an active 14 C.F .R. part 119 certificate with operations 

specifications authorizing it to conduct operations under part 135. (Exh. A-5). 

Respondent certified in its operations specifications that, "the certificate holder who 

operates under Title 14 Code of Federal Regulations (CFR) Part 135 certifies that it will 

comply with the requirements of 14 C.F .R. Part 121 Appendices I and J and 49 CFR Part 

40 for its Antidrug and Alcohol Misuse Prevention Program." (Exh. A-2). Respondent, as 

As the initial decision of the ALJ was not appealed to the FAA Decisionmaker, it is not considered 

precedent in this matter under 14 C.F.R. § 13.2320)(3). 

15 
a part 14 C.P.R. part 119 certificate holder with operations specifications authorizing it to 

conduct operations under part 135, was required under 14 C.P.R. part 121, Appendix I, 

§ IX.B.1 to implement an antidrug program no later than the date it started operations and 

to meet the requirements of Appendix I. In addition, under 14 C.P.R. part 121, Appendix 

J, § VII.B.1, Respondent was required to implement an AMPP no later than the date it 

started operations and to meet the requirements of Appendix J. The requirements in 

Appendices I and J included the random testing of safety-sensitive employees, which 

included individuals performing aircraft maintenance and/or preventive maintenance 

duties. See 14 C.P.R. part 121, Appendix I,§ V.B (2006), 14 C.P.R. part 121, Appendix 

J, § III.C (2006). 

Respondent had commenced part 13 5 operations, which triggered the requirement 

to comply with the P AA drug and alcohol testing regulations. Respondent also certified 

that it would comply with the drug and alcohol testing regulations when it received its 

operations specifications. (Exh. A-2). Appendices I and J both required that Respondent 

perform random drug and alcohol testing on its safety-sensitive employees. Mr. Baker 

performed aircraft maintenance and/or preventive maintenance on Respondent's aircraft 

for Respondent and therefore should have been included in Respondent's random drug 

and alcohol testing pools or in the random drug and alcohol testing pools of a company 

contracted by Respondent to perform aircraft maintenance and/or preventive maintenance 

on Respondent's aircraft. 

(2) The applicability language found in 14 C.P.R. § 135.241 did 

not apply to 14 C.P.R. §§ 135.251 and 135.255. 

In Everson, Judge Kolko found that the respondent, who had yet to commence 

operating as a part 135 certificate holder, had no obligation to adhere to the drug testing 

16 
requirements found in 14 C.P.R. parts 135 and 121. Everson at 2. Judge Kolko based his 

decision in large part on language found in 14 C.P.R. § 135.241 that limits the 

applicability ofboth 14 C.P.R.§§ 135.251 and 135.255. However, the language found in 

14 C.P.R. §§ 135.251 and 135.255 shows that the applicability of 14 C.P.R.§§ 135.251 

and 135.255 was contained within the sections themselves.9 

The decision in Everson, relied on language in 14 C.P.R. § 135.241 that stated, 

"this subpart [Subpart E] prescribes the flight crewmember requirements for operations 

under this subpart." Everson at 2. Of note is that 14 C.P.R.§ 135.241 said that the subpart 

applied to flight crewmembers (emphasis added) who are conducting operations under 

Subpart E. It is true that a flight crewmember can conduct flights that are covered by 

14 C.P.R. part 135, for which the drug testing requirements apply, or 14 C.P.R. part 91, 

for which they don't. Although 14 C.P.R. §§ 135.251 and 135.255 fell within Subpart E 

at the time of Respondent's violations, the language in these sections indicated that they 

covered more than flight crewmembers. The plain language of§ 135.251 stated that 

"[ e ]ach certificate holder or operator shall test each of its employees who performs a 

function listed in appendix I to part 121 of this chapter in accordance with that 

9 In the EAJA case in Everson, the FAA Decisionmaker did not make a determination as to whether Judge 

Kolko's decision was appropriate. See In the Matter of: David E. Everson, d/b/a North Valley Helicopters, 

Inc., FAA Order No. 2004-5, Docket No. CPOOW AOOO 1 (EAJA) (Sep. 22, 2004). However, the FAA 

Decisionmaker did fmd there were reasonable arguments made that the regulations in question were 

applicable, noting that the regulations citied in Everson did refer to "each certificate holder" and therefore 

could be interpreted to apply to any certificate holder regardless of the operations flown. Id. In addition, 

the FAA Decisionmaker noted that language in the preamble to the final rule for alcohol testing 

promulgated in 2004 stated that "the rule would include "essentially the same classes of employers as are 

covered by the anti-drug rule: 14 C.F.R. part 121 certificate holders, 14 CFR part 135 certificate holders ... 

.'" Id. (citing 59 Fed. Reg. 7380, 7381 (February 15, 1994). The FAA Decisionmaker also notes that the 

"FAA's guidelines for implementing anti-drug programs stated that: "[E]very single-person aviation 

business [under Part 135] ... must be part of a drug program approved by the FAA.'" Id. (citing Office of 

Aviation Medicine, Drug Abatement Branch, "Guidelines for Single-Person Aviation Businesses: 

Implementing the FAA Anti-Drug Program," p. 3 (Feb. 1990). 

17 
appendix."10 14 C.F.R. § 135.251 (1997) (emphasis added). The functions listed in 

appendix I included flight crewmember duties, flight attendant duties, flight instruction 

duties, aircraft dispatcher duties, aircraft maintenance or preventive maintenance duties, 

ground security coordinator duties, aviation screening duties, and air traffic control 

duties. 14 C.F.R. part 121, Appendix I, III (1997). With regard to alcohol testing, 

14 C.F.R. § 135.255 stated that, 

[ n ]o certificate holder or operator shall use any person who meets the 

definition of "covered employee" in appendix J to part 121 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 of 

appendix J. 

14 C.F.R. § 135.255 (1997) (emphasis added). 

A "covered employee" was defined in 14 C.F.R. part 121, Appendix J, § I.D 

(1997) as "a person who performs, either directly or by contract, a safety-sensitive 

function listed in section II of this appendix for an employer .... "The functions listed in 

section II of Appendix J included flight crewmember duties, flight attendant duties, flight 

instruction duties, aircraft dispatcher duties, aircraft maintenance or preventive 

maintenance duties, ground security coordinator duties, aviation screening duties, and air 

traffic duties. 14 C.F.R. part 121, Appendix J, §II (1997). Therefore, while 14 C.F.R. 

§§ 135.251 and 135.255 were contained within Subpart E, the applicability of these 

sections covered a greater scope of individuals than the flight crewmembers 

contemplated in 14 C.F.R. § 135.241. Thus the applicability of 14 C.F.R. §§ 135.251 and 

135.255 was found within these regulations themselves and not within 14 C.F.R. 

§ 135.241. 

10 14 C.F.R. §§ 251 and 255, as well as 14 C.F.R. part 121, Appendix I,§ III, 14 C.F.R. part 121, Appendix 

J, § I.D, and 14 C.F.R. part 121, Appendix J, §II remained unchanged until the drug and alcohol 

regulations were recodified to 14 C.F.R. part 120 in 2009. 

18 
iii. In the Matter of Helicopter Flite, Inc., is not applicable to this matter. 11 

Respondent cites the Helicopter Flite case for the proposition that if a company 

does not have exclusive use of an aircraft than it cannot be cited for a violation of 

14 C.F.R. § 135.25(b) unless it conducts operations during the period where it had no 

exclusive use. (Resp't's Appeal Br. at 11-12). Respondent appears to want to stretch this 

holding to say that a certificate holder can only be cited for regulatory violations during a 

period when it is conducting operations. Id. This significantly misses the mark as 

Respondent completely ignores In the Matter of Helicopter Flite, Inc., FAA Order No. 

2011-11, 2011 WL 6262276, at *2 (Nov. 22, 2011), which modified the previous order 

to hold that "[a] finding that a certificate holder is not in compliance with Section 

135.25(b) does not require proof that the certificate holder operated any aircraft during 

the time period in which it lacked an exclusive use aircraft ... " Therefore, Respondent's 

argument is meritless. 

Respondent's operations specifications were active at the time of the violation, at 

the time of the inspection and continued to be active as ofNovember 29, 2011. (Tr. 164-

5: 18-5; 165: 21-22; 168: 9-15; 333-4: 14-20). Respondent provided no evidence to 

support its affirmative defense that Respondent was not operational at the time of the 

violations. Because Respondent had active part 119 operations specifications authorizing 

it to conduct part 135 operations, Respondent was required to perform all maintenance in 

accordance with part 135 including adhering to the drug and alcohol regulations 

contained in 14 C.F.R. part 121, Appendices I and J. (Tr. 328-9: 16-1). This required that 

the maintenance performed by Mr. Baker be conducted by a mechanic that was under 

drug and alcohol testing programs delineated in 14 C.F.R. part 120, Appendices I and J. 

11 In the Matter of Helicopter Flite, Inc., FAA Order No. 2011-6, 2011 WL 2860783 (Jun. 13, 2011). 

19 
(Tr. 328: 2-8). Regardless of whether Respondent was conducting part 135 operations at 

the time of the violation, as the holder of a part 119 certificate, Respondent was required 

to adhere to its operations specifications including those authorizing it to perform part 

135 operations. (Tr. 328: 9-20). Respondent had an active part 119 certificate authorizing 

it to conduct part 135 operations and requiring it to comply with the drug and alcohol 

testing regulations. Respondent therefore was required to adhere to the drug and alcohol 

testing regulations contained in 14. C.F.R. part 121, Appendices I and J with regard to its 

employment of Mr. Baker to perform safety-sensitive maintenance work on its aircraft. 

F. Aviation Safety was Implicated by Respondent's Violations. 

Respondent argues that serious safety issues were not implicated yet the record 

clearly supports the fact that safety was implicated by Respondent's actions. (Resp't's 

Appeal Br. at 20-22). To support its theory, Respondent argues that because Respondent 

did not conduct any part 135 flights that there were no possible safety consequences. Id. 

The fact that no accident occurred is merely fortuitous. The record clearly supports the 

fact that there were serious safety issues involved in that Respondent had safety-sensitive 

work performed by a mechanic who was not covered by either Respondent's or his own 

FAA-approved drug testing program. (Tr. 157: 8-10; 310: 10-11). 

G. Respondent Violated 14 C.F.R. §§ 135.251(a) and 135.255(b). 

Respondent violated 14 C.F.R. §§ 135.251(a) and 135.255(b). 14 C.F.R. 

§ 135.251(a) states that "[e]ach certificate holder or operator shall test each of its 

employees who performs a function listed in Appendix I to Part 121 of this chapter in 

accordance with that appendix." 14 C.F.R. § 135.255(b) states that "[e]xcept as provided 

in paragraph (c) of this section, no certificate holder or operator may use any person who 

20 
meets the definition of 'covered employee' in appendix J to part 121 of this 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 of appendix J." Respondent, 

a certificate holder, violated 14 C.F.R. §§ 135.251(a) and 135.255(b) because an 

employee of Respondent, Mr. Baker, was not subject to DOT -required random drug or 

alcohol testing in accordance with 14 C.F.R. part 121, Appendices I and J. The ALJ 

found that Respondent violated 14 C.F.R. §§ 135.251(a) and 135.255(b) and his finding 

is supported by the preponderance of the reliable, probative, and substantial evidence and 

is consistent with applicable law and precedent. 

2. The ALJ's finding that the regulations cited in the complaint were 

properly promulgated is in accordance with applicable law. 

14 C.F.R. part 121, Appendices I and J and 49 C.F.R. part 40 were properly 

promulgated and amended by notice and comment in accordance with the Administrative 

Procedures Act. See 59 FR 42928, Aug. 19, 1994 (amending 14 C.F.R. part 121, 

Appendix I); 69 FR 1840, Jan. 12, 2004 (amending 14 C.F.R. part 121, Appendix J); 

(Exh. A-11). In addition, when 14 C.F.R. part 121, Appendices I and J were recodified in 

2009, the final rule explicitly stated that, "[t]he FAA is not making any substantive 

changes to the drug and alcohol regulations in this rulemaking." Drug and Alcohol 

Testing Program; Final Rule, 74 Fed. Reg.22649, 22649 (May 14, 2009); (Exh. A-12). 

Since no substantive changes were made to the regulations when they were recodified, no 

notice and comment period was required under the Administrative Procedures Act for 

that rulemaking. 5 U.S.C. § 553(b). Because Respondent was notified of changes to the 

regulations through the Federal Register publication of the Final Rule when required, his 

argument that the regulations were changed, hidden, and concealed without notification is 

21 
without merit. Additionally, it should be noted that the rule making that closed the 

"moonlighting" loophole, which was done by notice and comment, was proposed in 2002 

and became effective in 2004. Respondent's regulatory violations did not occur until 

2008; four years after the changes were made. (Tr. 316-8: 20-8). Thus Respondent had 

more than an ample opportunity to learn of the relevant regulations to which it certified in 

its operations specifications it would comply. Moreover, as a certificate holder, 

Respondent is charged with responsibility to know the regulations that pertain to its 

exercise of the privileges authorized by the certificate. 

It is the responsibility of the certificate holder to know the regulations that pertain 

to its exercise of the privileges authorized by the certificate it holds. (Tr. 144: 4-8; 182: 3-

6). Respondent attempts to distort the record in order to support its position that the onus 

is on the FAA to keep Respondent abreast of any regulatory changes. Respondent 

provides several arguments in an attempt to support its theory that there was a failure to 

notify him of the regulations and that should eliminate its responsibility. Respondent's 

arguments are all without merit. 

Respondent argues that the regulations cited in the Complaint "were not clearly 

referenced or disclosed in the signed operations specifications or compliance statements 

therein making Respondents [sic] compliance impossible since they were omitted and 

concealed." (Resp't's Appeal Br. at 14). This could not be farther from the truth. 

Respondent's operations specifications clearly reference the exact set of regulations that 

Respondent certified it would comply with. (Exh. A-2; Tr. 116: 3-19; 182: 17-19; 271-2: 

22-4; 316: 7-19). 

22 
Respondent also argues that because it was not provided an internet address that 

would point Respondent to a website containing the regulations, then it wasn't provided 

proper notification. (Resp't's Appeal Br. at 14-20). However, Respondent provides no 

evidence or testimony of a requirement for Complainant to do so. Instead, Respondent 

points to the establishment of a website unassociated with the FAA's Drug Abatement 

program as a line of demarcation of when it could reasonably be expected to adhere to the 

drug testing regulations. 12 Id. at 15. Following Respondent's logic, no certificate holder 

would have been required to adhere to the drug testing regulations prior to the 

establishment of the Drug Abatement office's website containing the drug testing 

regulations. This line of reasoning simply has no basis in fact. The regulations were 

properly promulgated by notice and comment and posted to the Federal Register. 

(Compl't's Post-Hearing Br. at 10-11). In addition, the rulemak:ing documents themselves 

contained several references to methods for obtaining the documents including website 

references. (Tr. 318: 16-12). 

Respondent also attempts to argue that because Ms. Lozado and Ms. Frankel did 

not define the term "methods of compliance" that this somehow was relevant to the case 

at hand. (Resp't's Appeal Br. at 15-16). In fact, Respondent never provided any evidence 

or testimony of what the term "methods of compliance" means and how it is relevant to 

this case. 

Respondent also argues that there was no grace period for compliance and that 

should somehow obviate the need for its compliance with the regulations. Id. at 16. In 

fact, as already discussed on page 21 of this brief, on February 28, 2002, the FAA 

12 Respondent cites Order 8900.1 which is a Flight Standards document and not a document associated with 

the Drug Abatement office. 

23 
published a Notice of Proposed Rulemaking in the Federal Register that outlined the 

elimination of the "moonlighting" loophole. (Tr. 195: 1 0-17). The final rule was 

published in the Federal Register on January 12, 2004. (Tr. 196: 10-12). The rule became 

effective February 11,2004. (Tr. 196: 19-20). The proposed rule was published for nearly 

two years before it became effective and the final rule was published for nearly a month 

before it became effective. During those times, certificate holders had ample opportunity 

to bring their drug abatement programs into compliance. Respondent's violations did not 

occur until 2008, four years after the final rule was published and became effective. (Tr. 

318: 5-8; 319-20: 21-6). Respondent's argument is completely without merit in that 

proper notice and comment was provided during the rulemaking process and regardless, 

Respondent's violations occurred years after the rules became final. 

Respondent argues that it was not notified of the changes by anyone at the 

Allentown FSDO. (Resp't's Appeal Br. at 13). This is irrelevant. Respondent provides no 

basis as to why anyone at the FSDO would be responsible for informing him of a change 

in the regulations. Instead, the record clearly states that the drug testing regulations do not 

come under the purview of the FSDO and are a program overseen by the Drug 

Abatement office. (Tr. 137: 18-22). Just as a drug abatement inspector would not provide 

information about proper maintenance procedures and maintenance regulations, so to 

would a FSDO employee not provide drug abatement regulation information. 

Respondent then claims that 14 C.F.R. §§ 135.251 and 135.255 do "not inherently 

state that MRH must directly test each employee who performs a safety sensitive function 

rather states empirically that any person conducting safety sensitive functions must be 

covered by an FAA approved drug and alcohol testing program." (Resp't's Appeal Br. at 

24 
18). These regulations cannot be read in a vacuum; rather, they must be read in 

conjunction with the regulations that delineate what is and what is not an FAA approved 

drug testing program. Clearly, as discussed herein, Mr. Baker was not covered under an 

FAA approved drug testing program for the purposes of his work for Respondent. 

Finally, Respondent attempts to argue that because the regulations contained in 

14 C.P.R. Appendices I and J were moved to 14 C.P.R. part 120 in 2009, this shows that 

the regulations were impossible to adhere to. (Resp't's Appeal Br. at 19). This is patently 

false. As discussed above, the recodification of these regulations was promulgated in 

accordance with the Administrative Procedures Act. Regardless, the recodification 

occurred in 2009 while Respondent's violations occurred in 2008. 

The ALJ found that "[i]t is the operator's duty to acquire and maintain knowledge 

of all applicable requirements," and to "keep[] up to date on all matters affecting their 

certificate." (Initial Dec. at 6). Further, the ALJ stated that "[l]ack of knowledge of the 

law suimply does not excuse illegal conduct." Id. (citing U.S. v. Cheesemen, 600 F.3d 

270 (3 Cir. 2010). Finally, the ALJ found that the regulations were "properly 

promulgated under notice-and-comment rulemaking procedures," and that such process 

"affords all affected parties due process under the law." (Initial Dec. at 6). The ALJ's 

findings are supported by the preponderance of the reliable, probative, and substantial 

evidence and are consistent with applicable law and precedent. 

3. The ALJ's sanction assessment is supported by a preponderance of the 

reliable, probative, and substantial evidence, and is consistent with applicable law, 

precedent, and public policy. 

Under the facts and circumstances of this case, a civil penalty of $4,400 is 

appropriate. (Tr. 209-16: 14-3). The FAA has broad authority to assess civil penalties for 

25 
violations ofthe FARs. See~' NL Industries, Inc. v. Department ofTransportation, 901 

F.2d 141, 144 (Apr. 13, 1990). The FAA's sanction determination "is not to be 

overturned unless 'it is unwarranted in law' or 'without justification in fact."' Id. quoting 

Panhandle Cooperative Ass'n v. EPA, 771 F.2d 1149, 1152 (8th Cir. 1985). 

The civil penalty in this matter was assessed in accordance with FAA Order 

2150.3B, specifically, Appendix B- Table of Sanctions. Respondent is classified as a 

Group IV air carrier or operator. 13 (Tr. 215-6: 22-3). Under 49 U.S.C. 

§ 46301(a)(5)(A), Respondent is subject to a civil penalty not to exceed $11,000. FAA 

Order 2150.3B delineates penalty ranges for different types of violations by different 

types of entities. (Tr. 211-2: 6-20). In this case, FAA Order 2150.3B sets forth the 

following penalty ranges: Maximum- $4,400-$11,000; Moderate- $2,200-$4,399; and 

Minimum- $550-$2,199. Id. For the FARs violated by Respondent, FAA Order 2150.3B, 

Figure B-5-b(1) provides guidance that a maximum penalty should be levied. (Tr. 213: 1-

16). FAA Order 2150.3B states "that the middle of each recommended sanction range 

would be for a single violation without aggravating or mitigating factors." The middle of 

the maximum range for a Group IV air carrier or operator is $7,700 per violation. In this 

case, because Respondent's two violations stem from the same omission, the FAA 

determined that based on the totality of the facts and circumstances a reduction of the 

penalty from the amount of $15,400 for the two violations to $4,400 was warranted. 14 

(Tr. 214-5: 21-21). 

13 A Group IV air carrier is defmed in FAA Order 2150.3B as an air carrier or commercial operator 

operating under part 135 with no more than 5 pilots and no more than 5 aircraft. FAA Order 2150.3B at B3. 

14 The Complaint was amended on December 10, 2010 to delete stale allegations and an appropriate 

adjustment to the penalty amount was made at that time bringing it down to the current $4,400 civil 

penalty. 

26 
The sanction is reasonable and was set in accordance with the FAA's sanction 

guidance. See In the Matter of Air Solutions, LLC, FAA Order No. 2009-1 (2009) 

(recognizing the reasonableness of a sanction set in accordance with the FAA's sanction 

guidance). 

Prior to the hearing, Respondent raised the issue of its inability to pay the sanction 

yet failed to provide information sufficient for Complainant to make a determination on 

that issue. At hearing, Respondent failed to submit any evidence supporting its alleged 

inability to pay. Complainant requested that Respondent provide the most recent three 

years of complete federal tax returns including schedules. (Tr. 216: 7-11). Respondent 

has only provided incomplete federal and state tax returns. 15 An assertion of inability to 

pay is an affirmative defense and the burden is on Respondent to prove that defense. In 

the Matter of American Air Network, Inc., FAA Order No. 2006-5, at fn. 19 (Feb. 10, 

2006). Respondent failed to provide the federal tax returns requested by Complainant in 

order for Complainant to assess Respondent's assertion of inability to pay. At the hearing, 

Respondent provided no evidence or testimony to challenge the validity of the penalty as 

determined by Complainant. As such, Respondent did not make a showing that it is 

unable to pay the proposed civil penalty. 

Accordingly, the ALJ found that the $4,400 civil penalty sought in the complaint, 

which fully accords with FAA sanction guidance, was 'just and appropriate." (Initial 

15 Respondent provided the following documents: (1) 2007 PA Corporate Tax Report; (2) 2007 PA 

Schedule L; (3) 2007 Federal Schedule C- Profit of Loss From Business; (4) 2008 PA Corporate Tax 

Report; (5) 2008 PA Schedule L; (6) 2008 Federal Schedule C- Profit or Loss From Business (7) 2009 PA 

Corporate Tax Report; (8) 2009 Schedule C-2 PA Dividend Deduction Schedule; (9) 2009 PA Schedule L; 

(10) 2009 PA Schedule C-5 Schedule of Taxes; (11) 2009 Federal Schedule C- Profit or Loss From 

Business. Complainant had previously omitted the 2008 Federal Schedule C from this list; however, as 

stated herein, Respondent never provided the complete federal tax returns as requested by Complainant. 

27 
Dec. at 7). This finding is supported by the preponderance of the reliable, probative, and 

substantial evidence and is consistent with applicable law and precedent. 

VI. CONCLUSION 

For all ofthe foregoing reasons, Complainant respectfully requests the FAA 

Decisiomaker affirm the ALJ's initial decision in its entirety. 

Dated: September 7, 2012 

Respectfully submitted, 

Peter Lynch 

Assistant Chief Counsel 

for Enforcement 

By:a:z 

Charles Raley, Attorney 

Enforcement Division, AGC-300 

Office of the Chief Counsel 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, DC 20591 

Phone: (202) 267-3357 

Facsimile: (202) 267-5106 

28 
Certificate of Service 

I hereby certify that on this date I have served by personal delivery, one original 

and one copy of Complainant's Reply Briefln the Matter ofM&R Helicopter, Docket 

No. CP10S00011, FAA Case no. 2009S0950434, addressed to: 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, D.C. 20591 

Attn: FAA Decisionmaker, AGC-430 

Wilbur Wright Building- Suite 2W1 000 

In addition, I hereby certify that on this date I have sent by certified mail, returnreceipt requested, one copy of the foregoing document to: 

Dr. Michael B. Selig 

President 

M & R Helicopters, LLC 

2045 Westgate Dr., Suite 205 

Bethlehem, P A 18017 

Dated: September 7, 2012