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- 52012 

## HEARING DOCKET

Respondent, Aviation Repair Solutions, Inc., a California corporation ("Aviation Repair"), in answer to the Complaint ofthe Federal Aviation Administration ("FAA") (the "Complaint"), admits, denies and alleges as follows: 1. Inresponse to paragraph I, Aviation Repair admits that shortly after June 4, 2012, it was advised through a Final Notice ofProposed Civil Penaltythat 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 inparagraph 2 ofthe Complaint. 3. Inresponse to paragraph 3 ofthe 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 complywith 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 onlythat it would implement an Antidrug and Alcohol Misuse Prevention Program for its employees, not that it is an air carrierresponsible for the employees of subcontractors. Except as so expressly admitted, Aviation Repair denies that at all times mentioned inthe Complaint, Aviation Repair was subject to Operations Specifications paragraph A449, which certifies that Respondent complies with the Department ofTransportation Antidrug and Alcohol Misuse Prevention Program found under 14 C.F.R. part 120.

1

### 4. In

### response to paragraph 4 ofthe 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 "anindividual who performs, either directly orby contract, a safety sensitive function listed in sections 120.105 and 120.215 for an employer (as defined in paragraph (i) ofthis section)." (emphasis added). 5. Aviation Repair admits the allegations in paragraph 5 ofthe Complaint. 6. Aviation Repair admits the allegations in paragraph 6 ofthe Complaint. 7. Aviation Repair admits the allegations inparagraph 7 ofthe Complaint. 8. In response to paragraph 8 ofthe Complaint, Aviation Repair admits that its own employees performing a safety-sensitive function, including aircraft maintenance and preventative maintenance duties must bethe subject to drug testingunder 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 ofthe degree ofsupervision. Aviation Repair admits that covered subcontractors at any tierhave the same obligations as to their own employees. However, Aviation Repair denies that ithas direct responsibility as to employees of

a covered subcontractor to provide drug testing under a drug testingprogram; and alleges that a covered subcontractorhas 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 ofthe 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 ofthe degree ofsupervision. Aviation Repair admits that covered subcontractors at any tierhave the same obligations as to their own employees. However, Aviation Repair denies that ithas direct responsibility as to employees ofa covered subcontractor to provide alcohol testingunder 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

2"employer" as defined in 14 C.P.R. §120.5(i), which is limited to air carriers and airtraffic control facilities. 10. Inresponse to paragraph 10 ofthe Complaint, Aviation Repair admits that on or about June 24, 2011, the PAA initiated an investigation as to Aviation Repair's drug and alcohol testingprogram in connection with its inspection ofthe Antidrug and Alcohol Misuse Prevention Program at Magorien Honing and Hydrolics, aka Dave Magorien ("Magorien"). Aviation Repair denies that its drug and alcohol testingprogramhas violated any applicablerequirements. 11. In response to paragraph 10 (a) ofthe Complaint, Aviation Repair admits that it subcontracted with Magorien to perform aircraft maintenance and preventative maintenance duties which is defined inthe regulations as a safety-sensitive function. However, Aviation Repair denies that the subject honing work actually posed or amounted to any safetyrisk. The workperformed byMagorien consisted ofpolishingplated surfaces to Aviation Repair requirements. Pallowing 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. Inresponse to paragraph lO(b) ofthe Complaint, Aviation Repair denies that it failed to verify whether Magorienhad 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. OnMarch 12, 2010, Aviation Repair contacted Magorien and communicated that theyhad work available for Magorien once they were onthe 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 PAAthat Magorien was not on the program onMarch 12, 2012 when they said they were on the program; and did not get onthe program until a few days later, on March 18, 2010. AviationRepair verified with Magorien onMarch 12, 2012 that Magorien did have the required drug and alcohol program but did not get written proof. Aviation Repair notes that Magorien's PAAregistration application is dated and signed March 12,2010. 13. In response to paragraph 10 (c), Aviation Repair is without information and belief sufficientto respond and on that basis denies the allegations inparagraph 10 (c), and each of them.

314. Aviation Repair admits the allegations inparagraph 10(d). 15. Aviation Repair admits the allegations inparagraph 1 0(e). 16. In response to paragraph 10(f), Aviation Repair denies that the workperformedby Magorienhad an actual impact on aircraft safety or was actuallyrelated to aircraft safety. Except as so expressly denied, Aviation Repair admits the allegations ofparagraph 1O(f). 17. Aviation Repair admits the allegations ofparagraph 10 (g). 18. Aviation Repair admits the allegations ofparagraph 10 (h). 19. In response to paragraph 1O(i), Aviation Repair admits that Magorienbilled 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. Inresponse to the allegations inparagraph II (1), Aviation Repair denies, generally and specifically, that it violated requirements applicable to Aviation Repairunder 14 C.F.R. section 120.105, and denies that it failed to ensure that all ofits 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.Rpart 120, subpart E. 21. In response to the allegations inparagraph II(2), AviationRepair denies, generally and specifically, that itviolated requirements applicable to Aviation Repair under 14 C.F.R. section 120.215 (a), and denies that it failed to ensure that all ofits employees who performed aircraft maintenance andpreventative maintenance duties were subject to alcohol testing under an alcohol testingprogram implemented in accordance with 14 C.F.R., part 120, subpart F. 22. 14 C.F.R. part 120, concerning drug and alcohol testingprograms, requires covered employers to have drug and alcohol testing programs as to their own covered employees. Covered subcontractors mustmeet 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

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

4"employee" as an individual who is "hired" either directly orbycontract 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 throughbarter or other form ofcompensation." 24. Section 120.103 (c) imposes responsibilities on employers only "for all actions ofyour officials, representatives and service agents in carrying out the requirements ofthis subpart and 49 C.P.R. Part 40;" section 120.103 does not provide strict liability on employers for the actions ofsubcontractors as to drug testingprogram requirements. See also section 120.205, concerning employerresponsibility for alcohol testing. Indeed, section 120.117 provides that "[e]ach companymustmeet the requirements ofthis subpart," relating to drugtestingprograms. Each companyis 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 employermust be subject to drug testing and alcohol testing and that subcontractors at anytier who are coveredmust subject their own employees to appropriate drug and alcohol testing. Aviation Repair is informed and believes and onthatbasis alleges that the FAA has pursued direct proceedings against Magorien for its alleged failure to timely implement drug and alcohol programs. 26. AviationRepairrepairs aircraft parts at the fundamental single piece level (meaning the parts are not assemblies). In orderto 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 veryhigh quality surface finish using abrasive stones. Magorien performed honing for Aviation Repair. Theprocesses Aviation Repair and Magorienused to repair parts are not used exclusively in the repair ofparts, they are also used extensively inthe manufacture ofnew parts. The following statements are true: a) It is not a violation ofanyFAArule for a party without an FAA Drug and Alcohol program to "hone" a newlymanufactured part whichwill be installed on a new commercial passenger airlinerpriorto initial delivery ofthat aircraft to an operator. So,

new commercial passenger aircraft contain parts that are honed byemployees who are

5not tested as part ofan FAA Drug and Alcohol program. These parts fall into the FAA's "fabrication" exception to the Drug and Alcohol rule. b) Itis not a violation ofany FAArule for a party without an FAA Drug and Alcohol program to "hone" a newlymanufactured part which will be installed on an in-service commercial passenger airliner as a replacement aftermarket "spare" part. So, the inservice fleets ofcommercial passenger airline operators include thousands ofparts which have beenhonedbypeople who are not tested as part ofan FAA Drug and Alcohol Program. These parts also fall into the FAA's "fabrication" exception to the Drug and Alcohol rule. c) Itis not a violation ofany FAArule for foreign FAArepair stations to honeparts as part ofa repair process to be subsequentlyinstalled on commercial passenger aircraft ifthey operate within a sovereign country and ifthat country does not permit drug and alcohol testing ofemployees. Yet, parts are honed under this circumstance and are installed on commercial passenger airlines operating inthe U.S. Had Aviation Repair followed all other FAArules, 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 FAAknows that aviation safety is not at risk ifparts are "honed" by an employee who is not subject to drug and alcohol testing. 28. Although as alleged above, Aviation Repair is notresponsible for Magorien's employees (but Magorien is responsible for its employees), unclear definitions ofthe terms "maintenance" and "fabrication" discriminate against U.S. based Repair Stations. 29. Theregulatory interpretation ofthe FAA and imposition ofa 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 inthe rest ofthe process following receipt ofthe parts from Magorien. AviationRepair also expects that the parts would have been inspected byAmerican Airlines upon installation into assemblies and that the assemblies were tested prior to installation on aircraft. To the knowledge ofAviation Repair, nothing was found to bewrongwith the parts. Aviation safety was never threatened. No one who worked on the parts was underthe influence ofanything.

6WHEREFORB, Aviation Repairrespectfully l>Ubmits 

### that undOI' the circumstances ofthis 

### case, no 

### civil penaltyis appropriate. If

### it**i~** determined

### that a civilpenalty is appropriate, Aviation Repair respectfully submits that**thort~** is nowillful violation, any violation was de minimus, there wasno actual threat to safety and thatAviation Repairis a very small employer, suchthat any ci.vil p61lalty shouldbe substautiallylessthan $7,000. Additionally, Aviation Repairrespectfullyrequests that 1mderthe c!rcum.stancea, anycivil penalty should beimposed without a finding ofviolations (see 14 C.P.R. section 13.16 (n) ).

Dated: August 28, 2012

Robei'f L. Toms, J .,attomeyfor Aviation 

### Repair Solutiollll, 

### Inc.
527 SouthLakeAvenue, Suite 1

### OS Pasadena, Ca1ifumia91101 Tel: (626) 405-1122 Fax: (626) 405-8966 E-mail; [tpms@grtlaw.net Respectfullysubmitted,

7FDSM No. FAA-2012-0474 (Civil Penalty Action)
I am employed in the County ofLos Angeles, State ofCalifornia. I am over the age ofeighteen (18) and not a partyto the within action; Mybusiness address is: 527 South LakeAvenue, 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 ofperjury under the laws of United States ofAmerica that the above is true and correct. I declare that I am employed in the office ofa member ofthe Bar ofthis Court at whose direction the service was made.

1SERVICE 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 2W1000 1
ONE COPY 

### Michael F. Mckinley, Complainant's Counsel 

### Senior Attorney, Enforcement Division, AGC-300 Office ofthe ChiefCounsel 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,AdministrativeLawJudge 

### Office ofHearings, M-20 U.S. Department ofTransportation 1200 New Jersey Avenue, S.E. (E11-310) Washington, DC 20590 TEL: (202)366-2139 Attorney-Advisor (202) 366-5121 StaffAssistant FAX: (202) 366-7536

1 Service was byU.S. Mail. For service inperson orby 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 2