U.S. Department of Transportation Federal Aviation Administration July 30, 2015 Northwest Mountain Region Office of Regional Counsel Colorado, Idaho, Montana, Oregon, Utah, Washington, Wyoming 1601 Lind Avenue S.W. Renton, Washington 98057 Tel: (425) 227-1417 Fax: (425) 227-1007 robert.spitzer@faa.gov

VIA FACSIMILE AND CERTIFIED MAIL- RETURN RECEIPT REQUESTED Attn: Hearing Docket Clerk, AGC-430 Hearing Docket Federal AviationAdministration (Wilbur Wright Bldg-- Room 2Wl000) 800 Independence Avenue S.W. Washington, D.C. 20591 

### Re: In the Matter ofB&G Industries, LLC, FAA Case No. 2013NM910238 Enclosedis an original and one copy ofarequest for hearing and Complaintinthe abovereferenced proceeding. The Federal Aviation Administration (FAA) requests thatthe hearing inthis matterbe held in Seattle, Washington, and expects thatthe hearing will last one (1) day. For scheduling purposes, FAA attorney, Robert Spitzer will be unavailable August 24,2015 through August 28, 2015. Please address all communications for the FAAto the undersigned at:

Sincerely, Federal AviationAdministration NorthwestMountain Region, ANM-7 1601 Lind Avenue S.W. Renton, Washington 98057 Telephone: (425) 227-1847 FAX: (425) 227-1007

# ~n--ta~ I.-1 Rob! S pjl'zer 

## T**~FAA** Attorney RS/tek Enclosures: Request for Hearing (Appeal) Complaint 

# ECEI\/ED AUG 042015 

## HEARING DOCKETROBERT SPITZER FAA OFFICE OF REGIONAL COUNSEL 1601 LIND AVE., SW RENTON, WASHINGTON 98057 TELEPHONE: (425) 227-1417 FACSIMILE: (425)227-1007 

# RECEIVED AUG 04 2015 

## HEARING DOCKET UNITED STATES OF AMERICA DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, D.C.

In the Matter of: B& G Industries, LLC FAA Case No. 2013WP910238 Judge Not Assigned

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

### I. On July 8, 2015, B & G Industries, LLC (B & G), was advisedthrough a Final Notice of Proposed Civil Penaltythat the FAAproposed to assess a civil penalty inthe amount of$10,285. OnJuly 20, 2015, B &G submitted a writtenrequest for a hearing. 

### II. 1. B & G is now, and at all times mentioned herein was, the holder ofRepair Station Certificate No. KGBR507Y.

COMPLAJNT FAAv. B & G Industries, LLC FAA Case No. 2013WP910238 Page 2 of6 ROBERT SPITZER, FAAATTORNEY TEL: (425) 227-1417; FAX: (425) 227-1007

### 2. At all times relevant herein, B & Gwas required to comply withthe requirements of 14 Code ofFederal Regulations (C.F.R.) Part 120 and 49 C.F.R. Part 40 for its drug and alcohol testing program. 3. On or about August 6, 2012, B & G hired Josh Cyr to perform safety sensitive mechanic functions. 4. B &G did not conduct apre-employment drug test on Mr. 

### Cyr until August?,2012, and did not receive a negative result until August 8, 2012. 5. By reason ofthe above, B & G hired an individual for a safety-sensitive function listed in 14 C.F.R. Section 120.105, without first having conducted a pre-employment test and without having received a verified negative drug test result for that individual. 6. B & G required employees hired in August 2012 and September 2012 to sign a consent and release form withrespect to drug and alcohol testing. 7. B & G failed to have its Employee Assistance Program (EAP) include, display and distribution ofinformational material, a community service hot-line telephone number for employee assistance, and B & G'spolicyregarding drug use in the workplace. 8. B & G's EAP policy failed to include information regarding the consequences under the rule ofusing drugs while performing safety-sensitive functions, receiving a verified positive drug test result or refusing to submit to a drug test required under the rule. III. 1. Byreason ofthe foregoing facts and circumstances, B & G violated the following sections ofthe Federal Aviation Regulations (14 C.F.R.):

a. Section 120.115(b)(l)(ii), inthat B & G's EAP testing program did not include at least display and distribution ofa community service hot-line telephone number for employee assistance;

COMPLAINT FAA v. B & G Industries, LLC FAA Case No. 2013WP910238 Page 3 of6 ROBERT SPITZER, fAA ATTORNEY TEL: (425) 227-1417; FAX: (425) 227-1007b. Section 120.115(b)(2), inthat B & G'spolicy failed to include information regarding the consequences underthe rule ofusing drugs while performing safety-sensitive functions, receiving a verified positive drug test result, or refusing to submit to a drug testrequired under the rule; and

c. Section 120.109(a)(l), inthat B & G hired an individual for a safety-sensitive function listedin 14 C.P.R. Sectionl20.105(a)(l) when B & G had not first conducted a preemploymenttest andl"ecdved a verified negative drug test result

# for that individual. 2. In accordance with Sections 46301(a) and (d) ofTitle 49 ofthe United States Code (U.S.C.) (Transportation) [49 U.S.C. Sections 46301(a) and (d)], B & G is liable for a civil penaltynot to exceed $11,000 for each ofthe violations noted. 3. Under the facts and circumstances ofthis case, a civil penalty of$10,285 is appropriate. WHEREFORE, the Agency, by counsel, respectfully requests that the Administrative Law Judge enter an orderthat B & G be assessed a civil penalty inthe amount of$10,285.
Respectfully submittedthis 30th day ofJuly, 2015.

COMPLAINT FAAv. B & G Industries, LLC FAA Case No. 2013WP910238 Page 4 of6 ROBERT SPITZER, FAA A HORNEY TEL: (425) 227-1417; FAX: (425) 227-1007ANSWER In accordance with Section 13.209 ofthe Federa1 Aviation Regulations, B & G Industries, LLC, must answerthis Complaintnot laterthanthirty (30) days from the time itis served on it. Failure to file anAnswer withinthirty (30) days without good cause shall be deemed an admission ofthe truth ofeach allegation contained inthe Complaint [14.C.F.R. 

### § 13.209(£)].

COMPLAINT FAA v. B & G Industries, LLC FAA Case No. 2013WP910238 Page 5of6 ROBERT SPITZER, fAA ATTORNEY TEL: (425) 227-1417; FAX: (425) 227-1007

### CERTIFICATE OF SERVICE I hereby certifY that the foregoing Complaint has been served via facsimile and Certified Mail

- ReturnReceipt Requestedthis date, to the following:

COMPLAINT Federal Aviation Administration (Original and one copy) 800 Independence Avenue SW Washington, D.C. 20591 Attn: Hearing Docket Clerk, AGCA30 Wilbur Wright Building- Suite 2Wl000 Fax: (202) 267-1293 Karl Bertagnole, President B & G Industries, LLC. 2441 Highway 20 West Greybull, WY 82426 Datedthis 30th day ofJuly, 2015.

T i Kirk Office ofRegional Connsel (ANM-7) Federal Aviation Administration 1601 LindAve. SW Renton, W A 98057 (425) 227-2007

FAAv. B & GIndustries, LLC FAA Case No. 2013WP910238 Page 6 of6 ROBERT SPITZER, FAAATTORNEY TEL: (425) 227-1417; FAX: (425) 227-1007

## • Regional Counsel 

## B&G INDUSTRIES, LLC AIRCRAFT OPERATIONS PO BOX669, GREYBULL WYOMING 82426 (307) 765-9911 July 20, 2015
Federal Aviation Administration Attention: Hearing Docket Clerk, AGC-430 Wilbur Wright Building--Suite 2Wl000 800 Independence Avenue SW \Vashington, DC 20591 Dear Sirs, 

## JUL 232015 

## ANM·1

<. 

# ~~:?1'I1fes

**,.,.~** AlRCRAfT OPERATIONS

We are in receipt ofyour letter dated July 8, 2015 regarding the Final Notice ofProposed Civil Penalty. Again, we objectto assessment ofthis penalty, do not feel that it is justified, and feel that the amount is extremely excessive consideringthe circumstances. As discussed with FAA personnel previously, B&G Industries, LLC. did not hire Josh Cyr to perfonn any safety sensitive functions nor could he have performed them as we only had Part 91 repair work in our facility at thetime ofhis hire and for many months following. The aircraftin our facility during thisperiod oftime did not even have a United States Air Worthiness Certificate as they had been delivered to us from out ofthe country. An Air Wmthiness Certificate wasn't even applied for until the aircraft were completed in our facility during the end of2012 and first qua:tter of2013. Itis our understa:t1ding that the requirements of 14 Code ofFederal Regulations (C.F.R.) Part 120 and 49 C.F.R. Pa:tt 40 regarding drug and alcohol testing program is releva:t1t only ifwork is being performed under our Repair Station Certificate is workthat can quality as Air Carrierworkunder Pmi 135 and 121. We had no workload that met that criteria during the period stated, rendering ail three ofthe findings invalid. Werequest a hearingin this matterper the letter we have received. Please advise us of the time and place so that we may defend ourselves against this proposed penalty. Sincerely,

**~'** Karl B agnole, Pre · B&G

**I~stries,** LLC. "----...,_



# -----