U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. RECEIVED ------------------------------~~ 

IN THE MATTER OF 

AVIATION REPAIR SOLUTIONS, INC. 

FAA DOCKET NO. [TO BE ASSIGNED] 

(Civil Penalty Action) 

FDMS NO. FAA-2012- 0474 

FAA CASE NO. 2011WP910331 

FIRST AMENDED ANSWER 

SEP- 5 2012 

HEARING DOCKET 

Respondent, Aviation Repair Solutions, Inc., a California corporation ("Aviation 

Repair"), in answer to the Complaint of the Federal Aviation Administration ("FAA") (the 

"Complaint"), admits, denies and alleges as follows: 

1. In response to paragraph I, Aviation Repair admits that shortly after June 4, 2012, it was 

advised through a Final Notice of Proposed Civil Penalty that the FAA proposed to assess a civil 

penalty in the amount of $7,000 and admits that on or about June 11, 2012, Aviation Repair 

submitted a written request for hearing. 

2. Aviation Repair admits the allegations in paragraph 2 ofthe Complaint. 

3. In response to paragraph 3 of the Complaint, Aviation Repair admits only that until July 

12, 2012, the Operations Specifications applicable to Aviation Repair stated: "the certificate 

holder certifies that it will comply with the requirements of 14 C.F .R. part 121 appendices I and J 

and 49 C.F .R. part 40 for its Antidrug and Alcohol Misuse Prevention Program." Aviation 

Repair certified only that it would implement an Antidrug and Alcohol Misuse Prevention 

Program for its employees, not that it is an air carrier responsible for the employees of 

subcontractors. Except as so expressly admitted, Aviation Repair denies that at all times 

mentioned in the Complaint, Aviation Repair was subject to Operations Specifications paragraph 

A449, which certifies that Respondent complies with the Department of Transportation Antidrug 

and Alcohol Misuse Prevention Program found under 14 C.F.R. part 120. 

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4. In response to paragraph 4 of the Complaint, Aviation Repair denies that paragraph 4 

provides a complete and accurate definition ofthe term "covered employee" under 14 C.P.R. 

section 120.7(f). 14 C.P.R. Section 120.7(f) speaks for itself. A "covered employee" under 14 

C.P.R. section 120.7(f) means "an individual who performs, either directly or by contract, a 

safety sensitive function listed in sections 120.105 and 120.215 for an employer (as defined in 

paragraph (i) of this section)." (emphasis added). 

5. Aviation Repair admits the allegations in paragraph 5 of the Complaint. 

6. Aviation Repair admits the allegations in paragraph 6 of the Complaint. 

7. Aviation Repair admits the allegations in paragraph 7 of the Complaint. 

8. In response to paragraph 8 of the Complaint, Aviation Repair admits that its own 

employees performing a safety-sensitive function, including aircraft maintenance and 

preventative maintenance duties must be the subject to drug testing under an antidrug program 

implemented in accordance with 14 C.P.R. part 120, subpart E, including full-time, part-time, 

temporary and intermittent employees regardless of the degree of supervision. Aviation Repair 

admits that covered subcontractors at any tier have the same obligations as to their own 

employees. However, Aviation Repair denies that it has direct responsibility as to employees of 

a covered subcontractor to provide drug testing under a drug testing program; and alleges that a 

covered subcontractor has the obligation to subject its own employees to drug testing under a 

drug testing program. Aviation Repair is not an "employer" as defined in 14 C.P.R. §120.5(i), 

which is limited to air carriers and air traffic control facilities. 

9. In response to paragraph 9 of the Complaint, Aviation Repair admits that its own 

employees performing a safety-sensitive function, including aircraft maintenance and 

preventative maintenance duties must be the subject to alcohol testing under an alcohol testing 

program implemented in accordance with 14 C.P.R. part 120, subpart P, including full-time, 

part -time, temporary and intermittent employees regardless of the degree of supervision. 

Aviation Repair admits that covered subcontractors at any tier have the same obligations as to 

their own employees. However, Aviation Repair denies that it has direct responsibility as to 

employees of a covered subcontractor to provide alcohol testing under an alcohol testing 

program; and alleges that a covered subcontractor has the obligation to subject its own 

employees to alcohol testing under an alcohol testing program. Aviation Repair is not an 

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"employer" as defined in 14 C.P.R. §120.5(i), which is limited to air carriers and air traffic 

control facilities. 

10. In response to paragraph 10 of the Complaint, Aviation Repair admits that on or about 

June 24, 2011, the P AA initiated an investigation as to Aviation Repair's drug and alcohol 

testing program in connection with its inspection of the Antidrug and Alcohol Misuse Prevention 

Program at Magorien Honing and Hydrolics, aka Dave Magorien ("Magorien"). Aviation Repair 

denies that its drug and alcohol testing program has violated any applicable requirements. 

11. In response to paragraph 10 (a) of the Complaint, Aviation Repair admits that it 

subcontracted with Magorien to perform aircraft maintenance and preventative maintenance 

duties which is defined in the regulations as a safety-sensitive function. However, Aviation 

Repair denies that the subject honing work actually posed or amounted to any safety risk. The 

work performed by Magorien consisted of polishing plated surfaces to Aviation Repair 

requirements. P allowing Magorien' s work, Aviation Repair physically inspected the parts to 

ensure performance. The work performed at Magorien was not an actual threat to aviation 

safety. 

12. In response to paragraph lO(b) of the Complaint, Aviation Repair denies that it failed to 

verify whether Magorien had a DOT Antidrug and Alcohol Misuse Prevention Program in 

compliance with 14 C.P.R. part 120 and 49 C.P.R. part 40 before contracting with it to perform 

aircraft maintenance and preventative maintenance for Aviation Repair. On March 12, 2010, 

Aviation Repair contacted Magorien and communicated that they had work available for 

Magorien once they were on the drug program. Aviation Repair received a verbal indication that 

Magorien was on a drug and alcohol program on March 12,2010. As a result, a purchase order 

was transported to Magorien' s facility. Aviation Repair now understands from the P AA that 

Magorien was not on the program on March 12, 2012 when they said they were on the program; 

and did not get on the program until a few days later, on March 18, 2010. Aviation Repair 

verified with Magorien on March 12, 2012 that Magorien did have the required drug and alcohol 

program but did not get written proof. Aviation Repair notes that Magorien' s P AA registration 

application is dated and signed March 12,2010. 

13. In response to paragraph 10 (c), Aviation Repair is without information and belief 

sufficient to respond and on that basis denies the allegations in paragraph 10 (c), and each of 

them. 

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14. Aviation Repair admits the allegations in paragraph 1 0( d). 

15. Aviation Repair admits the allegations in paragraph 1 0( e). 

16. In response to paragraph 10(f), Aviation Repair denies that the work performed by 

Magorien had an actual impact on aircraft safety or was actually related to aircraft safety. 

Except as so expressly denied, Aviation Repair admits the allegations of paragraph 1 O(f). 

17. Aviation Repair admits the allegations of paragraph 10 (g). 

18. Aviation Repair admits the allegations of paragraph 10 (h). 

19. In response to paragraph 1 O(i), Aviation Repair admits that Magorien billed respondent 

for the repairs in invoice no. 102033; but denies that the invoice was issued prior to March 18, 

2010. The invoice was dated March 26, 2010. 

20. In response to the allegations in paragraph II (1 ), Aviation Repair denies, generally and 

specifically, that it violated requirements applicable to Aviation Repair under 14 C.F .R. section 

120.105, and denies that it failed to ensure that all of its employees who performed aircraft 

maintenance and preventative maintenance duties were subject to drug testing under an antidrug 

program implemented in accordance with 14 C.F .R part 120, subpart E. 

21. In response to the allegations in paragraph II(2), Aviation Repair denies, generally and 

specifically, that it violated requirements applicable to Aviation Repair under 14 C.F .R. section 

120.215 (a), and denies that it failed to ensure that all of its employees who performed aircraft 

maintenance and preventative maintenance duties were subject to alcohol testing under an 

alcohol testing program implemented in accordance with 14 C.F.R., part 120, subpart F. 

22. 14 C.F .R. part 120, concerning drug and alcohol testing programs, requires covered 

employers to have drug and alcohol testing programs as to their own covered employees. 

Covered subcontractors must meet the requirements as to their own covered employees. 

Aviation Repair was not obligated to implement a drug and alcohol testing program as to 

employees ofMagorien. Moreover, Aviation Repair is not an "employer" as defined in 14 

C.F .R. § 120.5(i), which is limited to air carriers and air traffic control facilities. 

23. For example, (a) 14 C.F.R., section 120.5 notes that each employer having a drug and 

alcohol testing program under part 120 must ensure that all drug and alcohol testing is conducted 

appropriately; (b) section 120.7 separately defines "contractor" as distinct from an "employer;" 

(c) under section 120.7, "covered employee" means an individual who performs, either directly 

or by contract, a safety-sensitive function for an "employer;" (d) section 120.7 defines an 

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"employee" as an individual who is "hired" either directly or by contract to perform a safetysensitive function for an "employer;" (e) "employer" is defined in section 120.7 as a certificate 

holder, an operator or an air traffic control facility; and (f) section 120. 7 establishes that "hire" 

means "retaining an individual for a safety-sensitive function as a paid employee, as a volunteer, 

or through barter or other form of compensation." 

24. Section 120.103 (c) imposes responsibilities on employers only "for all actions of your 

officials, representatives and service agents in carrying out the requirements of this subpart and 

49 C.P.R. Part 40;" section 120.103 does not provide strict liability on employers for the actions 

of subcontractors as to drug testing program requirements. See also section 120.205, concerning 

employer responsibility for alcohol testing. Indeed, section 120.117 provides that "[ e ]ach 

company must meet the requirements of this subpart," relating to drug testing programs. Each 

company is required to ensure training and testing as to its own employees. 

25. Sections 120.105 and 120.215(a) establish that an employee who performs safetysensitive functions for an employer must be subject to drug testing and alcohol testing and that 

subcontractors at any tier who are covered must subject their own employees to appropriate drug 

and alcohol testing. Aviation Repair is informed and believes and on that basis alleges that the 

FAA has pursued direct proceedings against Magorien for its alleged failure to timely implement 

drug and alcohol programs. 

26. Aviation Repair repairs aircraft parts at the fundamental single piece level (meaning the 

parts are not assemblies). In order to accomplish this work, Aviation Repair performs plating and 

machining processes and uses subcontractors for other work processes. The "honing" process is a 

technique used to produce a very high quality surface finish using abrasive stones. Magorien 

performed honing for Aviation Repair. The processes Aviation Repair and Magorien used to 

repair parts are not used exclusively in the repair of parts, they are also used extensively in the 

manufacture of new parts. 

The following statements are true: 

a) It is not a violation of any FAA rule for a party without an FAA Drug and Alcohol 

program to "hone" a newly manufactured part which will be installed on a new 

commercial passenger airliner prior to initial delivery of that aircraft to an operator. So, 

new commercial passenger aircraft contain parts that are honed by employees who are 

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not tested as part of an FAA Drug and Alcohol program. These parts fall into the FAA's 

"fabrication" exception to the Drug and Alcohol rule. 

b) It is not a violation of any FAA rule for a party without an FAA Drug and Alcohol 

program to "hone" a newly manufactured part which will be installed on an in-service 

commercial passenger airliner as a replacement aftermarket "spare" part. So, the inservice fleets of commercial passenger airline operators include thousands of parts which 

have been honed by people who are not tested as part of an FAA Drug and Alcohol 

Program. These parts also fall into the FAA's "fabrication" exception to the Drug and 

Alcohol rule. 

c) It is not a violation of any FAA rule for foreign FAA repair stations to hone parts as part 

of a repair process to be subsequently installed on commercial passenger aircraft if they 

operate within a sovereign country and if that country does not permit drug and alcohol 

testing of employees. Yet, parts are honed under this circumstance and are installed on 

commercial passenger airlines operating in the U.S. Had Aviation Repair followed all 

other FAA rules, Aviation Repair could have outsourced the "honing" work to a foreign 

repair station without an alleged violation. 

27. The vast majority of "honed" parts flying on commercial passenger aircraft fit into one of 

the three categories above. The FAA knows that aviation safety is not at risk if parts are "honed" 

by an employee who is not subject to drug and alcohol testing. 

28. Although as alleged above, Aviation Repair is not responsible for Magorien's employees 

(but Magorien is responsible for its employees), unclear definitions of the terms "maintenance" 

and "fabrication" discriminate against U.S. based Repair Stations. 

29. The regulatory interpretation of the FAA and imposition of a fine on a very small 

business such as Aviation Repair would put Aviation Repair at a competitive disadvantage as 

against foreign repair stations, and would encourage outsourcing. 

30. In the present case, Aviation Repair inspected the parts at various steps in the rest of the 

process following receipt of the parts from Magorien. Aviation Repair also expects that the parts 

would have been inspected by American Airlines upon installation into assemblies and that the 

assemblies were tested prior to installation on aircraft. To the knowledge of Aviation Repair, 

nothing was found to be wrong with the parts. Aviation safety was never threatened. No one who 

worked on the parts was under the influence of anything. 

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WHEREFORB, Aviation Repair respectfully l>Ubmits that undOI' the circumstances ofthis 

case, no civil penalty is appropriate. If it i~ determined that a civil penalty is appropriate, 

Aviation Repair respectfully submits that thort~ is no willful violation, any violation was de 

minimus, there was no actual threat to safety and that Aviation Repair is a very small employer, 

such that any ci.vil p61lalty should be substautially less than $7,000. Additionally, Aviation 

Repair respectfully requests that 1mder the c!rcum.stancea, any civil penalty should be imposed 

without a finding ofviolations (see 14 C.P.R. section 13.16 (n) ). 

Dated: August 28, 2012 

Robei'f L. Toms, J ., attomey for Aviation 

Repair Solutiollll, Inc. 

527 South Lake Avenue, Suite 1 OS 

Pasadena, Ca1ifumia 91101 

Tel: (626) 405-1122 

Fax: (626) 405-8966 

E-mail; [tpms@grtlaw.net 

Respectfully submitted, 

7 
FDSM No. FAA-2012-0474 

(Civil Penalty Action) 

I am employed in the County of Los Angeles, State of California. I am over the age of eighteen (18) 

and not a party to the within action; My business address is: 527 South Lake Avenue, Suite 105, Pasadena, 

California 91101. 

On August 30, 2012, I served the foregoing document in this action described as: FIRST 

AMENDED ANSWER as follows: 

SEE ATTACHED SERVICE LIST 

(XX) 

Executed on August 30, 2012 at Pasadena, California. 

(Federal) I declare under penalty of perjury under the laws of United States of America that the 

above is true and correct. I declare that I am employed in the office of a member of the Bar of this 

Court at whose direction the service was made. 

1 
SERVICE LIST 

ORIGINAL & ONE COPY 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, DC 20591 

Attention: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building- Suite 2W1 0001 

ONE COPY 

Michael F. Mckinley, Complainant's Counsel 

Senior Attorney, Enforcement Division, AGC-300 

Office of the Chief Counsel 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, DC 20591 

TEL: (202) 267-7100 

FAX: (202) 267-5106 

E-MAIL: michael.f.mckinley@faa.gov 

The Honorable Richard C. Goodwin, Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E. (E11-310) 

Washington, DC 20590 

TEL: (202)366-2139 Attorney-Advisor 

(202) 366-5121 Staff Assistant 

FAX: (202) 366-7536 

1 Service was by U.S. Mail. For service in person or by expedited courier, use the following address: Federal 

Aviation Administration, 600 Independence Avenue, S.W., Wilbur Wright Building-Suite 2Wl000, Washington, 

DC 20591, Attention: Hearing Docket Clerk, AGC430 

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