Inthe matter of UNITED STATES OF AMERICA FEDERAL AVIATION ADMINISTRATION WASHINGTON, D.C. 

# RECEIVED SEP 072012 

## HEARING 

# DOCKET ) ) ) ) ) ) FAA DocketNo. CPlOSOOOll M & R HELICOPTERS, LLC ,..._, = DMS No. FAA-2010-1211 ,._, (_,') p; -u COMPLAINANT'S REPLY BRIEF Pursuant to 14 C.F.R. § 13.233(e), Complainant submits this Replyto Respondent's Appeal Briefwhich perfects Respondent's appeal ofthe Initial Decision of Administrative LawJudge Richard C. Goodwin (the "ALJ") issued onJune 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 onJuly 23,2010, inthe amount of$5,400, for violations ofthe Federal Aviation Regulations ("FARs"). 1An informal conference was held with Respondent, FAA attorneys, and a representative from the Drug Abatement Division of the Office ofAerospace 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 onNovember 17, 2010. The Complainthas since been amendedtwice, once onDecember 10, 2010 to remove certain allegations and reduce the penaltyto $4,400, and again on August 11, 2011 in orderto correct typographical errors.

1The 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, onNovember 27, 2010. In his Preliminary Objections, Respondent agreed that Mr. Edward BakerIII performed safety-sensitive functions for Respondent on July 24, 2008. (Prelim. Objections at 3). In addition, Respondent agreed in partthat Respondent is now, and at all times mentioned inthe Complaintwas, the holder ofAir Carrier Certificate No. MR3A020K, issued under 14 C.P.R. part 119 and with operations specifications authorizing itto conduct operations under 14 C.P.R. part 135 ofthePARs. Id. at 2. Respondent, however, asserted that it "has notbeen able to carry onpart 135 operations since August 2007." Id. Respondent denied all ofthe other allegations listed in the Complaint. On March 25, 2011, a conference call was held among ChiefAdministrative Law Judge Yoder, Complainant and Respondent. On May 27,2011, Complainant filed its Prehearing Briefin accordance with Judge Yoder's direction. OnJune 3, 2011, Respondent filed its Reply to Complainant's Brief. These proceedings were re-assigned to the ALJ on June 10, 2011. OnAugust 2, 2011, Complainant filed a Motionto Compel Discovery. In response, onAugust 15, 2011, the ALJ served upon Respondent an Order to Respondent to ShowCause. OnAugust 25, 2011, Respondent filed his Reply to the Orderto Show Cause. On September 29, 2011, the ALJ served an Order finding thatbecause Respondent failed to file adequate responses to the issues raised in the Orderto Respondentto Show Cause, Respondent "will be foreclosed at the hearing from offering

orrelying 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

2Reconsideration on October 3, 2011, whichthe ALJ denied in his Order Denying Respondent's Motion filed on October 18, 2011. OnNovember 15, 2011, Complainant filed a Motion for Decision. On December 1, 2011, Respondent filed a BriefSupporting the Motion for Decisionto Dismiss Complaint. OnDecember 5, 2011, the ALJ issued an Order Denying Motions. On January 26-27, 2012, a hearing for this matter was held inEaston, PAbefore the ALJ. On February 21, 2012, the ALJ issued an Order Setting OutBriefing Schedule. The ALJ served his Initial Decision onJune 18, 2012 affirming the Complaint and assessing a civil penalty of$4,400. Respondent filed a timely notice ofappeal onJune 21, 2012. 

### II. STATEMENT OF FACTS Respondent is the holder ofAir Carrier CertificateNo. MR3A020K, issued under 14 C.F.R. part 119 and with operations specifications authorizing itto conduct operations under 14 C.P.R. part 135 oftheFARs. (Exh. A-1). Respondent in its operations specifications certified that it would comply withthe requirements of 14 C.P.R. part 121, Appendices I and J and 49 C.F.R. part40 for its Antidrug and Alcohol Misuse Prevention Program? (Exh. A-2). OnJuly 21 and 23,2009, the FAA conducted aninspection of Respondent's DOT-required drug and alcohol testing programs. (Exh. A-7). During the investigation, it was discovered that onJuly 24, 2008, safety-sensitive maintenance work

was performed on Respondent's aircraft (N98CM) which was listed onRespondent's part 135 operations specifications. (Exh. A-4; Exh. A-3; Tr. 87: 3-10; 227: 18-22). This maintenance was performedbyEdward BakerIII. (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 briefare to Appendix I and J as in effect in 2008 unless otherwise noted. 3Mr. Baker, who is employed by Air Methods, performed this work for Respondent in his capacity as an "independent contractor." (Tr. 228: 2-8). Mr. Bakerperformed 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 onbehalfofeither Air Methods orthe AirNational 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 ofthe FARs, was active at the time of the violation, at the time ofthe inspection, and continuedto be active as ofNovember29, 2011. (Tr. 164-5: 18-5; 165: 21-22; 168: 9-15; 333-4: 14-20). Atthe hearing Respondent did nottestify under oath in support ofhis case. Respondent introduced seven exhibits and otherwise relied upon only direct examination ofMr. 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 employerwho had hired an employee to perform a safety-sensitive task," and that the employee "was not part ofa

4random pool for drug or alcohol screening either ofhis 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 

### itis the validity ofRespondent'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 againthatthe 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]hatthe aircraft was not operated is a fortuitous circumstance," and it was "the risk to aviation safety triggered by the conduct ofRespondent's employee that constitutes the prohibited behavior." Id. Finally, the ALJ rejected Respondent's arguments that Respondent had no notice ofthe regulations or any changes thereto. First, the ALJ found that it is the certificate holder's "dutyto acquire and maintain knowledge ofall applicable requirements." Id. at 6. Second, the ALJ found thatthe regulation was properly published in the Federal Register and that such publication "provides notice sufficient underthe Constitutionto all interested parties." Id.

5

### III. STANDARD OFREVIEW On appeal, the 

### P AA Decisionmaker considers whether each finding offact is supported by a preponderance ofreliable, probative, and substantial evidence, and whether each conclusion oflaw is made in accordance with applicable law, precedent, and public policy. 14 C.P.R. § 13.233(b)(l)-(2). 

### IV. COUNTERSTATEMENT OFTHE ISSUES 1. 

### WhethertheALJ's finding that Respondentviolated 14 C.F.R. §§ 135.251(a) and 135.255(b) is supported by a preponderance ofthe reliable, probative, and substantial evidence, and is consistentwith applicable law, precedent, and public policy. 2. WhetherTheALJ's finding thatthe regulations cited in the complaint were properly promulgated is in accordancewith applicable law. 3. WhethertheALJ's sanction assessment is supported by a preponderance ofthe reliable, probative, and substantialevidence, and is consistentwith applicable law, precedent, and public policy. V. ARGUMENT 1. 

### TheALJ's finding thatRespondent violated 14 C.F.R. §§ 135.251(a) and 135.255(b)is supported by a preponderance ofthe reliable, probative, and substantialevidence, and is consistentwith 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 Subjectto DOTRequired Drug and Alcohol Testing On June 24, 2008, Mr. Baker as a contractorworking for Respondentperformed safety-sensitive maintenance orpreventive maintenance on aircraft (N98CM) which was the aircraft listed onRespondent's operations specifications. He was therefore required to be subjectto 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

6orby contract, is performing a safety-sensitive function and mustbe 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 orpreventive maintenance duties on an aircraft subjectto the air carrier's operations specifications, directly orby 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. Bakerperformed safety-sensitive functions for Respondent in that he performed maintenance orpreventive maintenance byperforming a vibration balance check on Respondent's aircraft, which is listed on Respondent's operations specifications, and signing paperwork related to the performance ofthat maintenance. (Exh. A-4; Exh. A-3; Tr. 87: 3-10; 227-8: 15-1). Therefore, Mr. Bakerwas required to be subjectto 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 orby contract (including by subcontract at any tier) for an employer as defmed in this appendix mustbe 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 ofthe degree ofsupervision. The safety-sensitive functions are: E. Aircraft maintenance and preventive maintenance duties. 4 14 C.F.R. part 121, Appendix J, § II.A -CoveredEmployees A. Each employee, including any assistant, helper, or individual in a training status, who performs a safety-sensitive function listed in this section directly orby contract (including by subcontract at any tier) for an employer as defined in this appendix mustbe subjectto 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 ofsupervision. The safety-sensitive functions are: 5. Aircraft maintenance orpreventive maintenance duties.

7B. OnorAboutJune 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 "apart 119 certificate holder with authority to operate underparts 121 and/or 135

...." 14 C.P.R. part 121, Appendix J, 

### § I.D defines "employer" as "apart 119 certificate holder with authority to operate underparts 121 and/or 135

...."Respondentis the holder ofAir Carrier CertificateNo. 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 inboth 14 C.P.R. part 121, Appendices I and 

### J. (Exh. A-1; Tr. 107-8: 19-7; 190: 7-20). C. On orAbout June 24,2008, Mr. Baker Was anEmployee ofRespondent Under 14 C.P.R. part 121, Appendices I and 

### J. Mr. Baker was an employee ofRespondent 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 "aperson who is hired, either directly orbycontract, 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 ofthe appendix for an employer

...." As discussed above, Mr. Bakerperformed safety sensitive functions when he performed maintenance orpreventive maintenance byperforming a vibrationbalance check onRespondent's part 135 aircraft and signing paperworkrelated to the performance ofthatmaintenance. (Exh. A-4; Exh. A-3; Tr. 87: 3-10; 227-8: 15-1).

8Mr. Bakerperformed this work as an independent contractor and notinhis capacity as an employee ofeither AirMethods orthe AirNational Guard. (Tr. 228: 2-8). Therefore, Mr. Bakerwas an employee ofRespondentas defined by both 14 C.F.R. part 121, Appendices I and J. (Tr. 108-9: 8-14; 190-2: 21-2). D. OnorAbout June 24, 2008, Mr. Baker Was Not Covered Under Respondent's DOT-Required Drug orAlcohol Testing Programs orHis Own DOT-Required Drug orAlcohol Testing Programs. Mr. Bakerwas not covered under Respondent's DOT-required drug or alcohol testing programs orhis ownDOT-required drug or alcohol testing programs. Mr. Baker

was not included in Respondent's random pool for DOT-required drug and alcohol testing whenheperformed a safety-sensitive function for Respondent onJuly 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 orAMPP atthe time he performed safety-sensitive functions for Respondent onJuly 24, 2008. (Tr. 204: 11-13; 228: 18-21). Respondent denies these facts based on an erroneous understanding ofthe regulations and the so-called "moonlighting" loophole whichpreviously allowed employers to utilize safety-sensitive employees who were under another employer's drug testing programregardless ofwhether the other employerhad 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 onthis matter because the loophole was closed in 2004 and the regulation nowexplicitlyprohibits thatpractice. (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 requiredto either be included in Respondent's drug and alcohol testing programs orbe included in the drug

9and alcohol testing programs ofa company with whom Respondent contracted to provide such safety-sensitive functions. In this case, Mr. Bakerwas notunder Respondent's drug and alcohol testing programs or under the drug and alcohol testing programs ofa 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 ofthe violations was, the holder ofAir Carrier Certificate No. MR3A020K, issued under 14 C.F.R. part 119 and authorized to conduct operations under 14 C.F.R. part 135 oftheFARs. (Exh. A-1; Tr: 164-5: 18-5; 165: 21-22; 168: 9-15; 333-4: 14-20). Respondent claims that itwas non-operational atthe time ofthe 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 supportthatproposition. Id. at 9. Additionally, the evidence in the record establishes that Respondentretained its part 119 certificate authorizing it to operate underpart 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 ofthis assertion, Respondentpoints to Exhibit R-7, which is merely a Pennsylvania corporate name change document and has absolutely nothing to do with whetherthe 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

10the [operations specifications] were undated [sic] to reflect changes." (Resp't's Appeal Br. at 7-8). This statement is completely without support inthe 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 atthe time ofthe violation, at the time ofthe inspection, and continued to be active as ofNovember29, 2011. (Tr. 164-5: 18-5; 165: 21-22; 168: 9-15; 333-4: 14-20). Athearing, 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 135 operations and has no impact onthe operational status ofRespondent's Air Carrier Certificate. (Tr. 167: 3-11). Respondent also argues that the FAA's DeJoseph Letter ofInterpretation is not applicable to this case and thatFAA v. DavidE. Everson, d/b/a, North Valley Helicopters5 and Inthe Matter of: David E. Everson, d/b/aNorthValley Helicopters, Inc. 6 are.

5 FAA v. David E. Everson. d/b/a, North Valley Helicopters, FAA DocketNo. CP99W A0002 (2000). Inthe Matter of: DavidE. Everson, d/b/a North ValleyHelicopters. Inc., FAA OrderNo. 2004-5, Docket No. CPOOWAOOOl (EAJA) (Sep. 22, 2004). 111. The FAA guidance contained inthe DeJoseph Letter ofInterpretation is directly applicable to Respondent's violations. Respondent dismisses out ofhand the DeJoseph Letter ofInterpretation butthis interpretation is clearly applicable to the case at hand. See FAA Letter ofInterpretation issued by Rebecca MacPherson, Assistant ChiefCounsel, Regulations, to Fran DeJoseph (2006 WL 3792063 (D.O.T.)). (Exh. A-13). In this letter ofinterpretation, the FAA directly addressedthe issue ofthe interrelationship ofthe drug and alcohol testing requirements with holding a part 119 certificate with operation specifications authorizing operations underpart 135. Id. The FAA made it clear that aircraft listed on operations specifications issued under 14 C.F.R. part 135 mustbe maintained in accordance with part 135. Id. This includes having all maintenance that is performed onthe aircraftto be done by a mechanic who is subjectto the drug and alcohol testing requirements ofpart 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 subjectto appendix I ofpart 121 at the airport." Id. Inthese cases, 14 C.F.R. § 135.251(c) would allow for maintenance to be performed by an individual not subject to Appendix I, butthe operatorwouldthen have to notifythe FAA within 10 days ofthis maintenance and also have the aircraft inspected at the next airport where they could have individuals who are underthe drug-testing regulations perform the inspection. Id. The FAAthen made it clearthat "[ o]therthan in the circumstances described in section 135.251(c), maintenance by persons nottested pursuantto appendix I ofpart 121 'is prohibited onaircraft operated underpart 135."7 Id. Non-emergency maintenance on an aircraftthat is listed onthe operations specifications ofa part 119

7 Respondent has notproduced any evidence to supportthat it falls underthe exception in section 135.251(c). 12certificate holder with operations specifications authorizing itto conduct operations under part 135 by a person not underthe drug and alcohol testing requirements "wouldbe a violation ofthe regulations, which could result in penalties and require corrective actions, including the possible removal ofthe aircraft from the certificate holder's operations specifications." DeJoseph Letter oflnterpretation, citing 14 C.P.R.§ 119.51. The DeJoseph Letter ofInterpretation also addressed the issues surrounding what regulations mustbe adhered to when a part 119 certificate holder with operations specifications authorizing it to conduct operations underpart 135 is not operating under part 135, but underpart 91. The 

### P AA acknowledged that when conducting part 91 operations, flights may be conducted underpart 91 operating rules, but "[i]fanaircraft is listed onthe operation specifications ofa part 135 certificate holder, certain part 135 requirements, such as compliance with approved maintenance programs, apply continuously without interruption." 

### Deloseph Letter ofInterpretation. Even ifan aircraft listed on a part 135 certificate holder's operations specifications is operated underpart 91, the operator "wouldbe required to comply withthe drug and alcohol testing requirements of 14 C.P.R. sections 135.249-135.255 and also section 135.253." Id Any maintenance performed onan aircraft that is listed on a part 135 operator's operations specifications that is "done by a mechanic that does not meetthe drug and alcohol requirements ofPAR 135 and 121" is a violation, and such "violationwould occur at the time such maintenance is performed." Id. In these situations, "[ w]hetherthe aircraft is flown is notrelevant." Id. The holder ofa part 119 certificate with operations specifications authorizing operations underpart 135 is required to maintain the aircraft listed inthe holder's

13operations specifications in accordance withpart 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 ofparts 135 and 121 regardless ofwhetherthe operatoris conducting flights. (Tr. 328: 4-7; 328-30: 16-8). Respondent is the holder ofa part 119 certificate with operations specifications authorizing operations under part 135 and is therefore required to maintain its aircraft in accordance with part 135. (Exh. A-1; Tr. 328: 16-20). Therefore, Respondent was requiredto 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 ofparts 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. FAAv. DavidE. Everson, d/b/a/, NorthValley Helicopters is not applicable inthis matter. Respondent raises the issue ofwhether ornot ithad 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 inEverson is not applicable here. (1) Respondent had commenced operating underpart 135. InEverson, Judge Kolko found thatthe "Respondentwas not obligatedto create

or implement an antidrug program or an AMPPprior to the carrier's actual submission of suchplans to the FAA."8 Everson at 2. In that case, the 14 C.F.R. part 119 certificate

8 The Everson case is notprecedent for the purposes ofthis matter. The FAA chose notto appeal Judge Kolko's initial decision andthe FAA Decisionmaker did not make a finding as to Judge Kolko's decision. 14holder with operations specifications authorizing it to conduct operations underpart 135

was cited for numerous violations including failing to implement drug and alcohol testing programs and to perform suchtesting on its safety-sensitive employees. Id. However, the Respondent in Everson had never commencedpart 135 operations. InEverson, the company was notrequired to follow an antidrug programbecause it did nothave 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 laterthanthe date ofinception ofoperations." Id. In that case, the company had not commencedpart 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 anFAA antidrug.program no laterthanthe date you start operations, and meetthe requirements of this appendix." In this case, Respondent commenced 14 C.P.R. part 135 operations in orpriorto 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 holderwho operates under Title 14 Code ofFederal Regulations (CFR) Part 135 certifies that it will comply withthe requirements of 14 C.F.R. Part 121 Appendices I and J and 49 CFRPart 40 for its Antidrug and Alcohol Misuse Prevention Program." (Exh. A-2). Respondent, as

As the initial decision ofthe ALJ was not appealed to the FAA Decisionmaker, it is not considered precedent in this matterunder 14 C.F.R. § 13.2320)(3). 15a part 14 C.P.R. part 119 certificate holder with operations specifications authorizing itto conduct operations underpart 135, was required under 14 C.P.R. part 121, Appendix I, § IX.B.1 to implement an antidrug program no later thanthe date it started operations and to meetthe requirements ofAppendix I. In addition, under 14 C.P.R. part 121, Appendix J, § VII.B.1, Respondent was required to implement an AMPP no laterthanthe date it started operations and to meet the requirements ofAppendix J. The requirements in Appendices I and J included the random testing ofsafety-sensitive employees, which included individuals performing aircraft maintenance and/orpreventive 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 commencedpart 135 operations, which triggered the requirement to comply withthe 

### 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 bothrequired that Respondent perform random drug and alcohol testing on its safety-sensitive employees. Mr. Baker performed aircraft maintenance and/orpreventive maintenance on Respondent's aircraft for Respondent and therefore should have been included in Respondent's random drug and alcohol testing pools or inthe random drug and alcohol testing pools ofa company contractedby Respondentto perform aircraft maintenance and/orpreventive maintenance

onRespondent'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 yetto commence operating as a part 135 certificate holder, had no obligationto adhere to the drug testing

16requirements 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 withinthe 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 crewmemberrequirements for operations under this subpart." Everson at 2. Ofnote is that 14 C.P.R.§ 135.241 saidthat the subpart applied toflight crewmembers (emphasis added) who are conducting operations under Subpart E. Itis true that a flight crewmember can conduct flights that are covered by 14 C.P.R. part 135, for whichthe drug testing requirements apply, or 14 C.P.R. part 91, for whichthey don't. Although 14 C.P.R. §§ 135.251 and 135.255 fell within SubpartE atthe time ofRespondent's violations, the language inthese sections indicated thatthey coveredmore than flight crewmembers. The plain language of§ 135.251 statedthat "[

e]ach certificate holder or operator shall test each ofits employees who performs a function listed in appendix I to part 121 ofthis chapter in accordance withthat

9 Inthe EAJA case in Everson, the FAADecisionmaker didnotmake 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 OrderNo. 2004-5, DocketNo. CPOOWAOOO 1 (EAJA) (Sep. 22, 2004). However, the FAA Decisionmaker did fmd there were reasonable arguments made thatthe 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 holderregardless ofthe operations flown. Id. In addition, the FAA Decisionmakernoted that language in the preamble to the final rule for alcohol testing promulgated in 2004 stated that "the rule would include "essentiallythe same classes ofemployers as are covered bythe anti-drug rule: 14 C.F.R. part 121 certificate holders, 14 CFRpart 135 certificate holders

... .'" Id. (citing 59 Fed. Reg. 7380, 7381 (February 15, 1994). The FAA Decisionmaker also notes thatthe "FAA's guidelines for implementing anti-drugprograms statedthat: "[E]very single-person aviation business [under Part 135]

...must be part ofa drug program approvedby 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). 17appendix." 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 orpreventive maintenance duties, ground security coordinator duties, aviation screening duties, and airtraffic control duties. 14 C.F.R. part 121, Appendix I, III (1997). Withregard to alcohol testing, 14 C.F.R. § 135.255 stated that, [ n]o certificate holder or operator shall use any personwho meets the definition of"covered employee" in appendix J to part 121 to perform a safety-sensitive function listed inthat appendix unless suchperson is subjectto testing for alcohol misuse in accordance withthe 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 "aperson who performs, either directly orby contract, a safety-sensitive function listed in section II ofthis appendix for an employer

...."The functions listed in section II ofAppendix Jincluded flight crewmember duties, flight attendant duties, flight instruction duties, aircraft dispatcher duties, aircraftmaintenance orpreventive 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 SubpartE, the applicability ofthese sections covered a greater scope ofindividuals thanthe flight crewmembers contemplatedin 14 C.F.R. § 135.241. Thus the applicability of 14 C.F.R. §§ 135.251 and 135.255 was found withinthese 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, §IIremained unchangeduntil the drug and alcohol regulations were recodifiedto 14 C.F.R. part 120 in 2009. 18iii. In the Matter ofHelicopter Flite, Inc., is not applicable to this matter. 11 Respondent cites the HelicopterFlite case for the propositionthat ifa company does nothave exclusive use ofan aircraft than itcannotbe 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 Inthe Matter ofHelicopter Flite, Inc., FAA OrderNo. 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 proofthat the certificate holder operated any aircraft during the time period inwhich it lacked an exclusive use aircraft

..." Therefore, Respondent's argument is meritless. Respondent's operations specifications were active atthe time ofthe violation, at the time ofthe inspection and continuedto be active as ofNovember29, 2011. (Tr. 164- 5: 18-5; 165: 21-22; 168: 9-15; 333-4: 14-20). Respondent providedno evidence to support its affirmative defense that Respondent was not operational at the time ofthe violations. Because Respondent had active part 119 operations specifications authorizing itto conductpart 135 operations, Respondent was required to perform all maintenance in accordance withpart 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 performedby Mr. Bakerbe 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 ofHelicopter Flite, Inc., FAA OrderNo. 2011-6, 2011 WL 2860783 (Jun. 13, 2011). 19(Tr. 328: 2-8). Regardless ofwhether Respondent was conducting part 135 operations at the time ofthe violation, as the holder ofa part 119 certificate, Respondent was required to adhere to its operations specifications including those authorizing itto performpart 135 operations. (Tr. 328: 9-20). Respondent had an active part 119 certificate authorizing itto conductpart 135 operations and requiring itto comply withthe drug and alcohol testing regulations. Respondenttherefore was required to adhere to the drug and alcohol testing regulations contained in 14. C.F.R. part 121, Appendices I and J withregard to its employment ofMr. Bakerto 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 implicatedyetthe 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 thatbecause Respondent did not conduct any part 135 flights thatthere 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 inthat Respondent had safety-sensitive workperformedby a mechanic who was not coveredby either Respondent's orhis 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 ofits employees who performs a function listed inAppendix I to Part 121 ofthis chapter in accordance withthat appendix." 14 C.F.R. 

### § 135.255(b) states that "[e]xcept as provided in paragraph (c) ofthis section, no certificate holder or operator mayuse any person who

20meets the definition of'covered employee' in appendix J to part 121 ofthis chapterto perform a safety-sensitive function listed in that appendix unless suchperson is subjectto testing for alcohol misuse in accordance withthe provisions ofappendix J." Respondent,

a certificate holder, violated 14 C.F.R. §§ 135.251(a) and 135.255(b) because an employee ofRespondent, Mr. Baker, was not subjectto 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 ofthe reliable, probative, and substantial evidence and is consistent with applicable law andprecedent. 

### 2. The ALJ's finding thatthe regulations cited in the complaintwere properlypromulgated is in accordance with applicable law. 14 C.F.R. part 121, Appendices I and J and 49 C.F.R. part40 were properly promulgated and amendedbynotice and comment in accordance withthe Administrative Procedures Act. See 59 FR42928, 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 notmaking any substantive changes to the drug and alcohol regulations inthis 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 commentperiod was required underthe Administrative Procedures Act for that rulemaking. 5 U.S.C. 

### § 553(b). Because Respondent was notified ofchanges to the regulations throughthe Federal Registerpublication ofthe Final Rule whenrequired, his argumentthatthe regulations were changed, hidden, and concealed without notification is

21withoutmerit. 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 ofthe relevantregulations to which itcertified in its operations specifications it would comply. Moreover, as a certificate holder, Respondent is charged withresponsibility to know the regulations thatpertain to its exercise ofthe privileges authorized by the certificate. It is the responsibility ofthe certificate holderto knowthe regulations thatpertain to its exercise ofthe privileges authorized by the certificate itholds. (Tr. 144: 4-8; 182: 3- 6). Respondent attempts to distort the record in orderto support its positionthatthe onus is onthe FAAto keep Respondent abreast ofany regulatory changes. Respondent provides several arguments in an attemptto support its theory thatthere was a failure to notify him ofthe regulations and that should eliminate its responsibility. Respondent's arguments are all without merit. Respondent argues that the regulations cited inthe Complaint "were not clearly referenced or disclosed inthe 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 clearlyreference the exact set ofregulations that Respondent certified it would comply with. (Exh. A-2; Tr. 116: 3-19; 182: 17-19; 271-2: 22-4; 316: 7-19).

22Respondent also argues that because it was notprovided an internet address that would point Respondent to a website containing the regulations, then it wasn'tprovided proper notification. (Resp't's Appeal Br. at 14-20). However, Respondent provides no evidence ortestimony ofa requirement for Complainant to do so. Instead, Respondent points to the establishment ofa website unassociated withthe FAA's Drug Abatement program as a line ofdemarcation ofwhen 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 beenrequired to adhere to the drug testing regulations prior to the establishment ofthe Drug Abatement office's website containing the drug testing regulations. This line ofreasoning 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 thatbecause Ms. Lozado and Ms. Frankel did not define the term "methods ofcompliance" that this somehowwas relevantto the case at hand. (Resp't's Appeal Br. at 15-16). In fact, Respondent neverprovided any evidence

ortestimony ofwhat the term "methods ofcompliance" means and howitis relevant to this case. Respondent also argues thatthere was no grace period for compliance and that should somehow obviate the need for its compliance withthe regulations. Id. at 16. In fact, as already discussed onpage 21 ofthis brief, onFebruary 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. 23published a Notice ofProposed Rulemaking in the Federal Registerthat outlined the elimination ofthe "moonlighting" loophole. (Tr. 195: 1 0-17). The final rule was published in the Federal Register onJanuary 12, 2004. (Tr. 196: 10-12). The rule became effective February 11,2004. (Tr. 196: 19-20). The proposedrule was published for nearly two years before it became effective andthe final rule was published for nearly a month before it became effective. During those times, certificate holders had ample opportunity to bring their drug abatementprograms into compliance. Respondent's violations did not

occuruntil 2008, four years afterthe final rule was published and became effective. (Tr. 318: 5-8; 319-20: 21-6). Respondent's argument is completely withoutmerit inthat proper notice and commentwas provided during the rulemaking process andregardless, Respondent's violations occurred years afterthe rules became final. Respondent argues that it was not notified ofthe changes by anyone atthe Allentown FSDO. (Resp't's Appeal Br. at 13). This is irrelevant. Respondent provides no basis as to why anyone atthe FSDO would be responsible for informing him ofa change inthe regulations. Instead, the record clearly states thatthe drug testing regulations do not

come underthe purview ofthe FSDO and are a program overseenbythe Drug Abatement office. (Tr. 137: 18-22). Just as a drug abatement inspectorwould notprovide information aboutproper maintenance procedures and maintenance regulations, so to would a FSDO employee notprovide drug abatement regulation information. Respondent then claims that 14 C.F.R. §§ 135.251 and 135.255 do "notinherently state that MRHmust directly test each employee who performs a safety sensitive function rather states empirically that anyperson conducting safety sensitive functions mustbe coveredby an FAA approved drug and alcohol testing program." (Resp't's Appeal Br. at

2418). These regulations cannotbe read in a vacuum; rather, they mustbe read in conjunction withthe regulations that delineate what is and what is not anFAA approved drug testing program. Clearly, as discussed herein, Mr. Baker was not covered under an FAA approved drug testing program for the purposes ofhis work for Respondent. Finally, Respondent attempts to argue thatbecause 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 ofthese 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 ofall applicable requirements," and to "keep[] up to date onall matters affecting their certificate." (Initial Dec. at 6). Further, the ALJ stated that "[l]ack ofknowledge ofthe law suimply does not excuse illegal conduct." Id. (citing U.S. v. Cheesemen, 600 F.3d 270 (3 Cir. 2010). Finally, the ALJ found thatthe regulations were "properly promulgated under notice-and-comment rulemaking procedures," and that suchprocess "affords all affectedparties due process under the law." (Initial Dec. at 6). The ALJ's findings are supported bythe preponderance ofthe reliable, probative, and substantial evidence and are consistent with applicable law andprecedent. 

### 3. The ALJ's sanction assessmentis supported by a preponderance ofthe reliable, probative, and substantialevidence, and is consistentwith applicable law, precedent, and public policy. Underthe facts and circumstances ofthis case, a civil penalty of$4,400 is appropriate. (Tr. 209-16: 14-3). The FAAhas broad authorityto assess civil penalties for

25violations oftheFARs.**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 'itis unwarranted in law' or 'withoutjustification in fact."' Id. quoting Panhandle Cooperative Ass'nv. 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 ofSanctions. 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 subjectto a civil penalty notto exceed $11,000. FAA Order 2150.3B delineates penalty ranges for different types ofviolations by different types ofentities. (Tr. 211-2: 6-20). Inthis 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. Forthe 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 "thatthe middle ofeach recommended sanctionrange would be for a single violation without aggravating ormitigating 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 thatbased on the totality ofthe facts and circumstances a reduction ofthe 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 orcommercial operator operating underpart 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 adjustmentto the penalty amount was made at that time bringing it downto the current $4,400 civil penalty. 26The sanction is reasonable and was set in accordance withthe FAA's sanction guidance. See Inthe Matter ofAir Solutions, LLC, FAA OrderNo. 2009-1 (2009) (recognizing the reasonableness ofa sanction set in accordance withthe FAA's sanction guidance). Priorto the hearing, Respondentraised the issue ofits inabilityto paythe sanction yet failed to provide information sufficient for Complainantto make a determination on that issue. Athearing, Respondent failed to submit any evidence supporting its alleged inabilityto pay. Complainantrequested that Respondentprovide the mostrecentthree years ofcomplete federal tax returns including schedules. (Tr. 216: 7-11). Respondent has onlyprovidedincomplete federal and state tax returns. 15 An assertion ofinability to pay is an affirmative defense and the burden is onRespondentto prove that defense. In the Matter ofAmerican AirNetwork, Inc., FAA OrderNo. 2006-5, atfn. 19 (Feb. 10, 2006). Respondent failed to provide the federal tax returns requested by Complainantin order for Complainantto assess Respondent's assertion ofinability to pay. Atthe hearing, Respondentprovided no evidence ortestimonyto challenge the validity ofthe penalty as determined by Complainant. As such, Respondent did not make a showing that itis unable to pay the proposed civil penalty. Accordingly, the ALJ found thatthe $4,400 civil penalty sought inthe complaint, which fully accords with FAA sanction guidance, was 'justand 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 ofLoss 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 ofTaxes; (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 neverprovided the complete federal taxreturns as requested by Complainant. 27Dec. at 7). This finding is supported by the preponderance ofthe 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 ChiefCounsel

for Enforcement 

# By:a:z

Charles Raley, Attorney Enforcement Division, AGC-300 Office ofthe ChiefCounsel Federal Aviation Administration 800 Independence Avenue, S.W. Washington, DC 20591 Phone: (202) 267-3357 Facsimile: (202) 267-5106

28Certificate ofService I hereby certifythat on this date I have served bypersonal delivery, one original and one copy ofComplainant's Reply Brieflnthe Matter ofM&RHelicopter, Docket No. CP10S00011, FAA Case no. 2009S0950434, addressed to: Federal AviationAdministration 800 Independence Avenue, S.W. Washington, D.C. 20591 Attn: FAA Decisionmaker, AGC-430 Wilbur Wright Building- Suite 2W1000 In addition, I hereby certify that onthis date I have sent by certified mail, returnreceipt requested, one copy ofthe foregoing document to: Dr. Michael B. Selig President M & R Helicopters, LLC 2045 Westgate Dr., Suite 205 Bethlehem, PA 18017

Dated: September 7, 2012