07/18/2012 13:52 FAX 2024835142 FAA

P NNACI.F. 1\ I 11. L I**r~** I· '·, (. (I 1'\ P.

July 17, 2012



### Office ofthc Clerk United StaLes Court ofAppeals for the Sixth 

### Circuit 540**l~otter** Stewmt 

### U.S. Courthouse 

### 100 E. Fifth Street Cincinnati, Ohio 

### 45202-3988
Re: Petiti\)ll tor Rcview FAA 

### Case No. 

### 200780950331 Dear Clerk: + 

### OMS



## 20 q: 18**~001/023**

F'lonaclc AirliMs Corp. Legal Oepartmenl 1689 Nonconnah Blvd. Sulze 111 Memphl$, TN 38132 901.348.4100 Fax 901.346.2493

Enclosed 

### please find an original and one (1) copy ofPinnacle Airllne Tnc. 's Petition for Review 

### in the above-referenced 

### matter. Please file stamp 

### the copies and 

### retum to me 

### in the enclosed self-addressed 

### stamped envelope. · Ifyou need tinther inton:nation, please feel free to contact rnc. Sincerely,

Vice President ofLabor Relations


### WCH/krp Enclosures 

# RECEIVED JUl l

# 82012 

# HEARING 

# DOCKET07/19/2012 13:53 FAX 2024935142 FAA -. OMS



### UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT Pinnacle Airlines, Inc., ) 

### Petitioner ) v_ ) ) United States Department 

### ofTransportation ) Federal Aviation 

### Administration, ) ) 

### Respondent. )



## -- --·- ·····-·-·-· ... .

### .. .

### . 

### -... 

### PETITIONFOR REVII£W


### Pinnacle 

### Airlines, Inc., hereby petitions 

### the court for review ofthe Order of 

### the Federal 

### Aviation Administration, entered on 

### the 22 day 

### of

### May, 2012, Order 

### No. 2012-2 before such 

### agency, which 

### order assessed 

### a Two-hundred thousand dollar ($200,000.00) civil 

### penalty against Pinnacle 

### Airlines, lnc. for violations of certaiu Federal 

### A

## viaii~n Regulations pertaining 

### to drug 

### and a.1coho1 lesting regulations. This 

### the I7th 

### day 

### ofJuly, 2012.

# k~ AIRLINES, INC.

W. Chris Harrisou TN Bar#18689 Attomey for Petitioners 40 South Main 

## St. Ste. 1400 Memphis, TN 38103 

### CHanison@pncLcom 141002/02307/19/2012 13:53 FAX 2024935142 

### FAA + OMS


### CERTIFICATE OF SERVICE The undersigned certit1es that a true and 

### correct copy ofthe foregoing l1as be sent via FedEx to the following: Hearing Docket Clerk Federal Aviation Administration AGC-430 Wilbur Wright Building- Suite 2WI000 600 Independence A

### venue, S.W. 

### Washington, D.C. 20591 And 

### by e-mail and regular U.S. Mail to the foUowing: Michael Huerta Acting Administrator Federal Aviation 

### Administration 800 Independence Avenue, S.W. Washington, D.C. 20591 

### Laura Ponto, Attorney Enforcement Division/AGC-300 Office ofthe Chief

### Counsel Federal 

### Aviation Administration 

### 800 Independence Avenue, S.W. Washington, D.C. 20591 Laura.Ponto@faa.gov This the 17rh 

### day ofJuly, 20'12.**~** 003/02307/19/2012 13:53 FAX 2024935142 FAA**~** OMS



### UNITEl> STATES DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION WASIIINGTON, DC In the Matter of: PINNACLE AIRIJNES, INC. FAA Order No. 2012-2 Docket No. CP09S00002 

### l;DMS No. FAA-2009-0180 1 

### Served: May 22, 2012 

### DECTSlON AND ORDER2 

### I. Introduction Respondent 

### Pinnacle Airlines, 

### Inc. (Pinnacle), 

### aregional airline providing 

### service for**~** 004/023



### Northwest Airlines 

### ai1d 

### Delta Airlines, 

### has appealed3 

### the written initial decision 

### of Administrative 

### Law Judge 

### (ALJ) Isaac D. Benkin. 4 

### Thu ALJ assessed Pinnade 

### a $200,000 

### civil pt:malty 

### for 19 

### violaLions ofcertain drug and 

### alcohol**t~sting** 

### regulations applicable 

### to air**carri~rs.** 

### On appeal, 

### Pinnacle is contesting one ofthe ALJ's findings of

### violations- i.e., the

I 

### finding that 

### Pinnacle violated 14 C.F.R. 

### § 121.457(a) and 

### Part 121, Appendix I,§ V.A.l (2007) by

### hiring a 

### mechanic before 

### conducting a DOT

### pre·cmployment drug test and**b~fore** 

### receiving
1Materials filed in I he FAA Hearjng Dl)Ckl:t (.except for materials 

### filed in security cases) arc at'iO availaole fol' viewing atthe following Jnternet a.ddruss:**Wl~'(!.rr:~wlation~',g_ov. ~The**  Adminif.ltmtor's civil penalty dcci::dons, alongwith indexes ofthe decisions, the**rule:~** of practice, and other infonmttion, arc**availabl~** on the lntcrncl at the 

### following**addrc::;~:** www.faa.gov/ctboutloffice orglheadquarlers_offices/agc/po(_'-ldjudication/AGC400/ Civil _Penalty. In addition, Thomson Reuters/WesT. Publishing publishes**Fc~cr~l Avi_@.tionDecisio~\~.**  Finally, the**dcci~ions** arc available through LEXIS (TRANS library) and WestLaw (FTRAN-FAA database). For additional information, see the Web site. 3 Pinnacle has requested 

### oral argument This requc:>l 

### is denied, 

### as oral argument 

### is not necessary for proper disposition of'Pinnacle"s appenl.
4 A copy 

### ofthe AU's 

### decision is attached.07/18/2012 13:53 FAX 2024835142 FAA · .- OMS @005/023



### ve1ified negative 

### d111g test 

### result::;, The rernainder ofPinnacle's appeal involves the sanction. Specifically, Pinnacle argues 

### that the civil penalty 

### should. be reduced from 

## $2oo;oo(> to 

### $54,0005 

### for the 

### following reasons:
• The ALJ cn·ed in asse,<;sing a maximum civil penalty for violations that involved a 

### low material 

### risk ofharm to the flyingpublic.

• The ALJ erred in findi11g that Pinnacle's remedial efforts did not wan-ant a lower civil pcr1alty. '

• The ALJ ened in relying on infonnationnot

### in the record.·
• The

### ALJ erred in holdingthatthe maximum civil 

### penally for each violatio11 was $25,000, because Complainant asserted inthe complaint that it was seeking a civil penalty l.Hldcr 49 U.S.C. 

### §4630l(a)(5), which, in conjunction with 14 C.P.R. 

### § l3.305(d), authorizes 

### a maximum civll 

### penalty ofunly $11,000per violation

### by a small business concern. Thls decision aft1nns the civil penaltyassessed

### by the

### ALJ. H. Background A. The DOT/FAA Anti-Drug }tnd Alcohol 

### Misuse Prevention Programs The Ornnibus Transportation Employee Testing Act of 1991,49U.S.C. 

### §§ 45101-45107, requires drug and alcohol testing ofsafety-sensitive transportation employees in aviation and other transportation industries. Under the Act's autholity, the Department ofTransportation 

### (DOT) promulgated regulations requiring 

### pre-employment, random, and post-accident dmg and alcohol tests 

### for employees throughout the transportation industry. 49 C.P.R. Pmt40. These regulations addJ'css who must conduct drog and alcohol tests, how to conduct those tests, and what procedures to usc when testing. In addition, the FAApromulgated drug and alcohol testing regulations specific to aviation. In 2007, the drug and alcohol 

### testi11g regula\ions applicable to air

### c1:trri(jr~ operaling



### srinnaclc 

### does not explain in 

### its appeal 

### briefthe reasoni11g behind its selection or$54,000 as 

### the amount to whkh the 

### penalty should be reduced. 207/19/2012 13:53 FAX 2024935142 

### FAA + DMS 

### Ill 008/023

underPa1t 121 were l(mndinPmt 121 andPart 121,Appendices 1(drug testingprogram) and 

### J (alcohol 

### misuse prevention program). Section 

### 121.4576 required 

### each certificate holder 

### or operator operating under

### Part 121 to test 

### each ofits employees

### who performed 

### a safety-sensitive function for ce1tain dmgs in accordance with the standards forth in Part 121, Appendix L Air carriers 

### operating tmder

### Part 121 also were required to testemployees performing safetysensitive 

### tun.clions for alcohol misuse in accordance with the standards set forth in 

### Appendix J under Section 

### 12l.459(b).7 Regarding 

### pre-cmploym.ent drug testing, Appendix 

### 1provided that no employermay hite any in.clividtlal**~o~** a**.s~fety-:sensitivc function<?~**  

### trq_nsfer**~ ~mployee**  from a 

### nonsafety-sensitive to a safety-sensitive function unless the employer first conducted a pre-employmenttest and received a verified negative drug test result for that individual. 14 C.F.R. Pmi 121, Appendix I, §§ V.A.1 8 and V.A.2<J (2007).

6 Section 121.457(a) provided, "Each certificate hold\:r or operator shall testeach ofits employees who performs a funclion listed in appendix l to this part in**ac~,;ordance** with that appendix." 14 C.F.R. § 121.457(a) (2007). In 2009, the drug and alcohol testing rugulations for Part 119 certificatehl'lldcr::;**w~o:ru** t:c..msolidated in a new 14 C.F.R. l1<n1 120. 74 Fed. Reg. 22563 (May 14, 2009). The requirements of**~** 121.457(a) arc now setforth in the Federal Aviation Regltlations (FAR) at 14 C.F.R. § 120.35. 7 Section 121.459(b) provided, "No certificate holder :shall use any person who rnct:ts the dclinition of

### coveredemployee in appendix

### J to this pmi to perfmm a safety-sensitive function listed in tha.t appendix unless such person is suqject

### to testingfor alcohol mis\ISe in accordance 

### withthe**provision~** ofappendix J." 11 C.F.R. § 121.459(b) (2007). The requirements ofthis section are now set forth in 14 C.P.R. § 120.3?. ll Appendix 1, § V.A.1 provided, "No employer may hire tlny i11dividual for a safety-sensitive function listed in section Ill ofthis appendix unless the employer first conducts a pre-employmenttest and receives a verified negative drugtest result for that individual." This requit·emcnt now appears at 14 C.F.R. § 120.109(a)( I). 0 Appendix 1, § V.A.2 provided, "N<) employer may allow an individual tn tnlnsfer from a nt)rJ$afety-scnsitiveto a safety-sensitive**func~ion** unlcRA t.hc employer first conducts a pre-employmcnl test and rcct:ives a verified negative drug**t~st** resultfor the individual." This requirement now appears at 14 C.P.R. 

### &120.1 09(a)(2).
.
307/18/2012 13:53 FAX 2024835142 FAA + 

### OMS**!a~** 007/023
Regardingboth random drug and alcohol t0sting, 

### Appendix I and Appendix 

### J provided 

### that an employer

### must use 

### a

### random**s~lection** 

### process in which "each covcnxlemployee 

### shaH have 

### an equal chance

### ofbeing tested 

### each time selections are made.') 

### 14 C.F.R. Part 

### 121, Appendix I, 

### § V.B.S,10 and Appendix 

### J, 

### §lll.C.S (2007).1l 

### B. Allegations in this Case The FAA cQndLtcted an

### inspection 

### ofPinnacle's antidmg and alcohol misuseprevention programs in September 2007 10 determine whether Pinnacle was in compliance with the pc1iinent regulations. FAA inspectors discovered discrepancies 

### which 

### fon11ed the ba.sis 

### ofthis action. Cornplainan.t tiled a coniplaint alleging 

### that Pinnacle had: 

### (a) hiTed 

### two employees for safety-sensitivepositions (a

### mechanic and an 

### aircran dispatcher) before 

### Pinnacle had received 

### :'erificd negative drug 

### tests for the**employe~s;** 

### (b) transfened sixteen

### employees into safety·scnsitive

### positions (ground security coordinators) before Pinnacle had 

### received verified negative pre-employment drug test results 

### forthe employees; and 

### (c) failed to 

### place one**employ~e** (anaircraft dispatcher) into random pools for 

### both drug 

### and alcohol testing. Complainant alleged that Pinnacle violated 14 C.P.R.§ l21.457(a) (2007); 14 C.P.R. 

### Palt 121, Appendix T, 

### § 

### V.Al (2007); 14 

### C.F.R. Part 

### 121, Appendix 

### I,§ V.A.2 (2007); 14 C.F.R. Part 

### 121, Appendix**I,~** V.13.5 (2007); and 14 

### C.P.R. Part 121, 

### Appendix J, § III.C.5 (2.007). Complainant sought a 

### $200,000 civil penalty, etsserting that 

### Pinnacle Wf.lS subject to a

10 Section § V.B.5 ofAppendix I provided in pet1inent part, "Under the**se:lc~.:tion** process used, each**coverc~i** employee shall**~ave** <:ln equal chance ofbeingtested C;Jach time selections are made." This t;landard currently appears at 14 C.F.R. § 102.1 09(b)(5).
n Section §III.C.5 ofAppendix J 

### provided in pertinentpart, ''Under the selection**proccs~** used, each covered**employ~e** shall have an equal ch<-lnce ofbc;-ing tested each time selections are made.'' This standard cun·ently appea1·s at 14 C.F.R. § 120.217(c)(5). ·
407/18/2012 13:53 FAX 2024835142 FAA -. OMS**~** 008/023

civil penalty ofup to $25,000 for each violation. The FAA has the authority to assess a civil penalty ofup to $25,000 per violation against a person (other than an individual or small business concern) under 49lJ.S.C. 

### §46301(a)(l); however, in its complaint, instead of

.referencing 49 U.S.C. 

### § 46301(a)(l), Cornplainant cited Section

### ~6301 (a)(5), 12 whichin

coqjunc1ion with the inflation-adjustme11t l'egulation. 14 C.F.R. 

### § 13.305(d), authorized tho FAA to assess a civil penalty ofupto $11,000per alleged vi<>lation against an individual or small business concem. Alth()ugh Pinnacle deniedthat 

### it had committed these violations in**it~** Answer, atthe hearing Pinnacle only contested the alleged violationsregarding the failure to receive the verified negative pre-employment drug test results oftwo.employees. Pinnacle's attomey conceded that the other violations had OCCUlTed, ascalleged. (Exhibit A-1. Stipulation ofFacts dated 

### Augt1St 19, 2009.) 

### JII. The Initial Decision The ALJ held that 19 violations occurred, as alleged in the complaint, andrejected Pinnacle's arguments that the $200,000 civil penalty sought hy Complaimmt wastoo high. 

### The ALJ r0jected Pinnacle's arguments concerning sanction mitigation. Pinnaduhad argued that its employees were subjected to the company•s non·D01'pre-employmen1 

### drug testing priorto hiring for, or lransfcn-ing to, a safety-sensitive function, and therefore, the violations 

### regarding 

### DOTpre-employment tcsling were onlytechnical in nature. The ALT found that the evidence was lnsullicientto ptove that Pinnacle's testingprogram**wa~** adequate under the regulations, and fm1:her ''the notionthat a 

### carrier's failure to comply with a regulation·



## -------· --

12 49 U.S.C. § 1630l(a)(S)(A) provides that "[ajn

### indivi~lual (except an airman serving

### a~ an airrn:-m) or small busincs8 concem is 

### liabJe to the**Governmet~t** for a civil penalty ofnot more than $10,000" ror violations oflisted sl:-:tltltory provisions or· 

### regulations issi1ed under those 

### provic:ions. 507/19/2012 13:53 FAX 2024935142 FAA -+ OMS**~** 009/023



### because it was doing something else 'just as good' is anathema to 

### the rule oflawin

### ~1 regulated 

### industry." (Initial Decision at 5.) 

### Ile concluded that Pinllacle's use ofits own drug testing program fhr the employees involved in 

### this case was 

### entitled to little weight in assessing the civil penalty. (Initial Decision at 6.) Pinnacle also argued that it had sent the 

### ernployees in question 

### lor training before they 

### performed 

### a11y

### salety~sensitive**function~** and 

### it received verified negative test results

### befor~ any ofthese employees 

### were assigned to safety-sensitive 

### duties. However, as 

### the ALJ noted in his 

### decision, the Adtninistrator 

### specifically decided that testing 

### al1Cl 

### rhe receipt ofncgative lest results rnus! 

### precede the date ofhiring, as opposed to 

### the date on 

### whichjobperfonnance 

### bcgins. 13 r

## lencc~ he was not persuaded by 

### this 

### argument regarding trainillg afi.er the date ofhire. The ALl also rejected the

### argum~nt that the violations we.r.e inadvertent, writing as follows: 

### .lflt [Pinnacle] had taken suchprecautions and one 

### ortwo transferred employees had 

### "slipped through the cracks" and had 

### begun training a day or so 

### before the negative test result 

### was received, we might perhaps have;, a basis for 

### considering the 

### can-ier to 

### have committed one or two "inadvertent'' violations. But we 

### simply cam1ot 

### reach that

### conciu~ion, either as a matter oflogic or regulatory discretion, when the selfsame violation turns up sixteen tinws. (Jnilial Decision at 

### 10.)

### Th~ ALJ acknowledged that corrective 

### actions may at times bemitigating, buthe 

### rejected Pinnacle's arguments 

### that 

### ithad taken corrective actions that warranted a lower civil penalty. Phmacle had introduced evidence that 

### it hadreplaced 

### its computer program for 

### tracking compliance with tlw 

### lesting

### requirements~ had introduced a system ofauditing 

### compliaJ1ce, had

13 H C.P.K. 

### l)art 1.21, Appendix 

### I, 

### § V.A.l (:2007) 

### (emphasis added)

### provided: "No employer may hire 

### any individual for 

### a safety-Mmsitive function
... unless lhe employer first conducts a pte

### employment test and 

### receives a verified negative drug 

### test result for 

### that individul:ll."07/19/2012 13:54 FAX 2024935142 FAA -+ 

### OMS**~010(023 introdu~ed**  a new**computer~based** training program for 

### managers, etc. The ALJ found that Pinnacle hadnot carried its burde11 ofprovingthat its corrective actions were 

### suilicicnt, speuific
or swift 

### as required in the case law. 

### (Initial Decision at**11-12.) ~**  The ALJ rejected Pinnacle's argument in its post-hearing briefthat it should betreated as 

### a small b11siness com;ern to which 

### a lower

### maximum civil penalty is authorized ll!ldcr 

### the Federal aviation

### statute~**bccaus~** there 

### was no evidence that Pinnacle is a small 

### business. He wrote

### that a

### $25~000 civil penalty per count is applicableto Pinnacle under 49 U.S.C. 

### §46JOl(a)(5)(A). (Initial Decision a116.) TheALJ found that Pinnacle's 

### vic)lation. history. consisting of11vl:) civilpenalties ranging fl·om $5,000 to $27,000 

### between 1997 and 2006, for

### violati()ns~oftesting regulations, constituted
an aggravating factor. He found that the past 

### civil penalties l1ad not been high enoughto 

### induce Pinnacle to comply

### with theregulations and he "llope[d] lhat, upon collection ofa $200;000 

### civil penalty, the "I:"AA 

### will have finally gotten this carrier's attention." (Initial Decision at17.) 

### IV. Pinnncle's At"guments on Appeal Each ofPinnacle's argurnents for 

### reducing the $200,000 civil penalty 

### is discussed 

### below. A. 

### Allegedly Incorrect Hire 

### Date Mechanic Stewart filled out an application with Pinnacle and went to take his drug 

### lest on September 

### 29, 2006. 

### (Tr. 220.) At 

### some point during or afterthe inspection of

### Pinnacle in Scpkmber 2007, Pinnacle provided Complainant with an "Employee Action Notice" indicating 

### that on September 29, 2006, Pinnacle J1ircd Stewart Lo perform 

### maintenance orpreventive maintenance as an A&P [Airframe & Poweiplant] mechanic. (Exhibit A-3; Tr. 99.) Stewart and
a Pinnacle manager had each signed the notice. In addition, there was testimony at the hearing 

### 14 The ALJ

### r~jected Pinnacle's other arguments in mitigation 

### as well but, due to the 

### natt1rc ofthe 

### appeal
.. there 

### is no need lo 

### discuss those 

### aspects ofthe initial <kdsion. 

### 707/19/2012 13:54 FAX 2024935142 FAA -+ 

### OMS @011/023



### that the**~ire** 

### date for Stewart entered in Pinnacle's computer system was September 29, 2006. (Tr. 221.) Pinnacle received Stewart's veri1ied negative DOT dp.1g 

### test results for Stewart on September 30, 

### 2006. (Ex. A-13; Tr. 221.) Hence, Complainant concluded, Pinnacle violated 

### tl1e regulations in that it did not receive the verified negative drug test result until the day after Stewmi 

### was hirtJd. Pilmacle argues, however. thatthere was no violation because September 29, 

### 2006, was not the conecthire date. Pinnacle's Vice President ofPeople, Mary Ann Morrow, testified that the hire date tor Stewaii

### was aclually 

### October 16, 2006, the day 

### he started work. (Tr. 222.) Ms. Morrow testified that 

### September29, 

### 2006. should 

### not have been the hire date entered in the system because Pilmacle would not have pllt 

### someone to work the same day 

### that the person filled 

### outhis or her application and was interviewed. (Tr. 221.) According 

### to Ms. 

### Morrow, an error must have been made by 

### the Human Resources clerk, who picked up the date from the 

### application. (/d.) 

### According to Pinnacle, "[u]nder Pinnacle's policies at the- time, it 

### [wasJ highly 

### lmproba?Icthat Stewart 

### was extended 

### an offer ofemployment on the same day be filled out his ' 

### ' application, because any 

### otrcr 

### ofemployment

### would have been conditional upon his passing 

### a criminal background check and DOT

### drug test." (Appeal 

### Briefat 7.) The ALJ 

### indicated that Ms. Morrow was not

### persuasive because she had no personal knowledge ofwhen Stewart was hired. Nor did she provide any documentation to show that Pinnacle's records were in error. TheALJ pointed O\.lt

### that 

### Pi11nacle did not call to 1<:.1sti1y at the hearing either Stewart, the manager, orthe htu11an 

### resources clerk who purportedly made the mistake, even though all these

### individual~ were under Pinnacle's contn)l. (Initial Decision at 4.)**Th~::** 

### ALJ**cow~c1ly** 

### resolved this issue. Pinnacle's p<)licy may have been to receive verified negative drug tests 

### before hiring or transfening employees, but there. is no evidence that
8·07/18/2012 13:54 FAX 2024835142 FAA + OMS**~012/023**
it followed that policy. The hire date, as 

### indicated

# on the Notice of

### Employinent, which was 

### sigmxl by both 

### Stewart and 

### a Pinnacle n1anager, 

### shows that there was not 

### merely a computer data entry error. Hence, 

### there is 

### no reason to reverse the ALJ'

### s finding ofa violation involving Stewart. Pinnacle argues 

### that if

### a violation is found, 

### then only 

### a minimum 

### civil penalty should

### be assessed 

### because 

### Pinnacle received the negative drug result weeks before Stewart started work, and 

### therefore, any 

### violation was 

### no lTiore than a "mere paperwork" 

### violation. Pinnacle cites 

### no aulhority 

### ii1dicating that a violation is less egregi9us ifthe employee did notyet start work. 

### B. Statutory Authority for Civil Penalty 

### Pinnacle argues on appeal that the 

### ALJ erred in 

### assessing a civilpenalty 

### under a statute that Complainant did not assert in the complaint. Complainant alleged in the complaintthat Pinnacle was subjectto a civil 

### penalty for its violations under 49 U.S.C. § 46301 (a)(5), whlch Complainant alleged 

### authorized a civil pcmt.lty 

### not exceeding $25,000 per violation. However, Section 4630l(a)(5), in conjunction with the inflation-adjustment provision in 14 C.F.R. § 13.305(d), authorizes an a'5sessmcnt 

### ofup to $11,000 

### for violations oflisted statutory provisions against an iridividual or small 

### busi11css concern. Section 4630I(a)(5) is not applicable Lo large air carriers. The ALJ was mistaken in writing that Section 46301(a)(5) was the authority for assessing 

### Pinnacle a civil penaltyofup 

### lo $25,000 perviolation. Complainant's position·is that Pinnacie 

### ls a large

### air carrier, not a small businlJs.s concern. (ReplyBriefat 29.) Complainant explained that it actually intended to cite 49 U.S.C. 

### §46301 (a)(l),15 which authorizes an assessment 

### ofup to $25,000 against 

### a person, including a

15 In pertinent part, 49 U.S.C. § 4630I(a)(I) Jmwides: "A person is liabJeto the lJnitcd States Govemment fnr Cl civil penalty ofnot more 1·han $25,000 (or $1,100 ifthe person is an individual or smal1 907/19/2012 13:54 FAX 2024935142 FAA -+ OMS 141013/023
large air carrier, for certain statutory and rcgu.latory violations, or a maximtlm of$1,100 for an 

### individual <..n· a small business concem .. 16 The failure on the part ofComplainant 

### a,nd the ALJ to cite the**com~ct** statutoryprovision


### as the a1.1thority for 

### assessing $25,000 per violation 

### was hannless error. 

### The authority 

### to a:-;sess 

### a civil penalty ofup to $25,000 per

### violation

### did exist in

### 49 U.S.C. 

### §4630l(a)(

### 1). Pinnacle was
on notice that 

### it was 

### subject Loa civil penalty ofup to $25,000 perviolation, because although Complainant had cited the 

### wrong statutory

### provision inthe Comp1aint, 

### it had stated 

### con·ectly the 

### extent ofits authority to 

### assess a civil penalty against Pinnacle. ! 

### C. Non-DOT Drug**Tc.stin~tPrognm** Pinnacle admits that it violated the 

### regulations by transferring 16 

### ofits 

### employees trom business concern for.violating" ce1tain statutory provisions ofthe Federal aviation act and n..:gulal.ions**is~ued** thereunder. " .:,
JG Pinnacle also argues that ComplainantJailed to show that it was a large air carrierthat would be

### su~jcct to a $25,000 civil penalty per violation. Actually, small business status was an affirmative 

### defen::;C;) that Pinnacle 

### had the burden 

### ofproving. J!l 

### C.F.R. 

### § 13.224(c) (party 

### who has asserted afflnnative defense has the burden ofproving it). Pinnacle did not assert that it was a small business, let alone prove it. · Forthe definition ofsmall bu!$iness concem, see 15 U.S.C. § 632. The maximum 

### number of employees 

### for a small business concem 

### in scheduled air passengertranspmtation is 1500. 

### 13 C.F.R. § 121.20I (specifically, Subscctor481, Air Transportation; 4R 111 Scheduled Air

### "Pass~nger '1'ransportation). The record docs not. c<.mtain evidence regarding how rnany employees Pinnacle had in 2007, when the in1>pection was conducted. However, sl.atements ma.de 

### by Pinnacle'.-:; attornc:y atthe hearing, although not evidence, appear to indicate tl1at Pinnacle was not a small business concern in 2007. Pinnacle's attorney stated 

### in his opening statementthat Pinnacle had I000 ground handlers scattered in 30 cities. (Tr. 80.) He stated that Pinnacle has 30 

### informatioii technology (TT) 

### employees. (Tr. 

### 87.) Also, Pinnacle's publicly filed 2007 Annual Report, p. 11, available on the Internet but not. 

### in(,;luded in the record ofthis case,

### state.~ t.hat. l-IS ofDecember 31, 2007, Pinm1cle Airlines, Inc. bad 4,00S employees. The final report is part ofPinnacle's Form I0-K

### Iil~:d with the "U.S.

### ~ecuritics and Rxchange Commission. See**http;//nt~<;lja.comorate-ir.neV..!nedia** 111es/irq1/l3!_131 072/PNC.!:- 200? AR**n~w.p<;lf.** See ufso Exhibit 

### R-2 (Pinnacle's. 

### Form 10-Q) at 

### 7, stalingthat "[On] June 

### 30, 2009, Pinnacle operated 124 Canadai1; Regional Jet (CRJ) ·200 under Delta brands with

### approx.i~ately 695 daily departures to 116 cities in 34
...tales, the District ofColumbia, and four Canadian pnwinces. Pini1aclc**al~(>** operated a fleet of 16 CRJ-900 aircraft a:> a Delta Connection can·icr with app1·oximately 9 I daily departures to 34 cities in 17 statcfl, thu District ofColumbia, Beli7.c, Mexico, Turks and Caicos

### Island~:: lind the U.S. 

### Virgin ll:llands.''
1007/18/2012 13:54 FAX 2024835142 FAA + OMS 141014/023 

### nonsafety-scnsitive positions to safety-sensitive ground 

### security coordinator (GSC) positions before it

### had received negative DOT drug test results concerning the employees. But Pinnacle

·argues 

### that tl1ere 

### was a low material risk to the flying public from these 

### violations because all

16 of

### the 

### GSCs were 

### tested 

### in Pinnacle's non-DOT drug testing program and had received negative 

### rC::>lllt:>, 

### and therefore, a lclwei· 

### dvi1 penalty per violation was 

### appropriate. ' 

### Actually, only 15 ofthe 16 GSCs were subject

### to non-DOT pre-employment dmg

### tests. (Tr. 195.) Even 

### ifthey all had been subject

### to**it~** 

### the ALJ 

### correctly gave little wejght to 

### this argument. There 

### was inadequate

### proofto suppoi"t 

### Pi1macie's claim 

### that its 

### program "mimed"

### the DOT program. 

### For exi.tmple, there was**t~;stimony** 

### that 

### for non-DOT tests, unlike lor

### DOT tests, 

### the testers do not take anti-tampering 

### measures such as blueing 

### the water 

### in the restroom and requiring the employee to remove his or her outer ganuents before ente1ing the restroom. (Tr. 548.) Further, 

### although Pinnacle 

### claimed that 

### its contracts- with coJleclors, the 

### laboratory, the third 

### party administrator, and 

### Medical Review Officers (MROs)- 

### provided for following DOTrequirements, Pinnacle failed 

### to 

### introduce the 

### contracts into 

### the record.**Also~** 

### there was testimony on cross-cxarnination from Pinnacle's Vice President 

### ofPeople, Mary At111 

### Morrow, that Pinnacle does not audit its laboratories to detcnnine whether they**an~** 

### following DOT requirements fo1- 

### non-DOT tests. (Tr. 

### 406, 409.) In any event, some ofthe non-DOT

### pre-employment drug tests occurred more than 180 

### days before the employee 

### was transfened. 

### Const;quently, even

### ifPinnacle's 

### non-DOT

### pre· employment drug testing 

### was Cl!Lrivalent

### to a DOT pre-employment 

### urug test, the**non~**

### DOT drug tests were too old because pre-employmenttests 

### are valid 

### under DOT regulations for only

1107/19/2012 13:54 FAX 2024935142 FAA + 

### OMS**~015/023** 

### 180days. 14C.F.R.Part 12l,Appendixl, 

### § V.A.3 (2007);see, 

### e.g., Tr. 195,386. 17 Forthese reasons, the 

### ALJ did not err 

### in declining to reduce the civil penalty 

### based on Pinnacle's nott-DOT 

### drug testing

### program. D, Results Received BeforeTraining Pinnacle admits

### that it hired Dispatcher

### Jeremy Hcinbach

### before receiving

### hi~ negative DOT urug test results. 

### Specifically, Pinnacle admits that ithired Heinbach on 

### July 30, 2007 and received Heinbach'

### .s verified negative

### DOT; drug 

### test results on August 

### 2, 

### 2007 (Exhibit R-11 ), and that Heinbach began company indoctrination-training on August 14,2007. However, Pinnacle states that there was a low

### risktrom this violation to the flying public because Hcinbach did not begin training until approximately 2 weeks 

### after 

### Pinnacle received his verified negative DOT

### prc~cmp1oymcnt drug

### test result$. Therefore, 

### according to Pinnacle, the civil penalty for this violation should be reduced. According to the

### regulations~ no employermay 

### hire any individual for a safety-sen,sitive function unless the employerfirst receives a ve1ified negative drug testresult for that individuaL ( 14 C.P.R. Part 121, Appendix I,§ V.A (2007). The date ofhire is what is relevant, not the 

### date oftraining. (ExhibitA-6 at 1.) 18 ·Further, contrary to Pinnacle's asscrlion in its 

### brief, the ALJ did not assess a rnaximum

17 Por example, Pinnacle employee Brenda Sweat had a non-DOT dl'Ug tc.st on July 21, 2006, (Tr. 3!:12.) A

### n~gative result was reported on July 

### 25, 2006. (/d.) Sweat began G:;)C training on June 29, 2007, about I 1 months after the non-DOT drug test. (TI'. 385; Exhibit R-16.) 18 Exhibit A-6 is a letter from Rebecca B. MacPherson, FAA Assistant ChiefCounsel, Regulations Division, to Deborah McElroy, President, Regional Airline: Association, May 31, 2005, advising that "pre-employrncnl testing must be condw.:t.cd and a negative drug test result received before

. an individual is hiredfor a safety sensitive function ortransferred from a non-safety-sensitive functiou to

a safety-sensitive function." (Emphasis in the**origin~!.)** 1207/18/2012 13:54 FAX 2024835142 FAA -t OMS**~018/023**
civil penalty for the violation hwolving

### Heinhacl~,-**19** The ALJ

### as::;~:s.sed a $200,000 civil penalty for 19 violations, which, on average, amounts to 

### .Jess than $11_,000 per violation. The 

### ma.:x:imum civil 

### penalty per

### violation~ as 

### discussed above 

### on p. S, was $25,000. 

### Such a civil penalty reflects not 

### only 

### the gravity ofthe 

### violation, but as 

### w111 be 

### discussed further, the aggravating 

### factors in this**ca~e.** 

### E. Random nrug

### and Alcohol Testing Pools Pinnacle 

### admits that 

### itfailed to placeDispatcher Michael Sampson

### into the random drug 

### and alcohol testing pools, 

### due to what Pinnacle

### ~tates 'was an inadvertent computer <:llTOr. However, Pinnacle 

### argues that its errorposed a low material risk to the flying public because Sampson would not

### have known about the error and, consequently, the goal ofdetenence was 

### still met. 

### 1. Alcohol 

### Testing Pool Regarding the failure to place Sampson into the random alcohol testing pool,· CompJainaut 

### only alleged in the Complaint that 

### Pim1a.c!e 

### failed to comply with 14 C.F.R. Part 121, Appendix J> § III.C.5 (2007), which provided that: The**~election** ofemployees for random alcohol 

### testing shall be made 

### by a scientifically valid method, such as a random-number table or a 

### computer-based random nmnbcr generator that is matched with employees' Social Security**numbers~** payroll identification numbers, or other comparable id,entifying numbers. Under the 

### selection process used, each covered employee shall 'have an equal chance 

### ofbeing: tested each time selections are made.

19 Appendix 4 ofthe Compliance and Enforcement 01·d0r, FAA OrderNo. 2150.3A, which was 

### in effect 

### at the time, provided that

### th~ ma!'{imum civil .penalty range for

### ~:~.nair**can·i~.:r w<~s**  $7,500 to $10,000. Appendix 4 was modified by the Compliance/Enf()rccmcntBulletin, No. 92-1, which was issued on JaOnuary 16, 1992, and provided that the maximum range civil penalty for Pa11 121 air caniers was either $7,500 to $10,000 or $6,500 to $J 0,000, depending upon whether the Part l2l air caiTier had an armual operating**revcnu~::** ofmore or less than $100,000,000. However, these ranges, with the rnaximum civil penalty Ofllp to $10,000, were obsolete because Congress amended the Federal aviation statute in 2003 to auihtJrL:::c the imposition ofup to**~l** $25,000 civil penalty per viohttion,
1307/18/2012 13:55 FAX 2024835142 FAA + OMS la]017/023



### This provi::;ioil alone is merely a specification for the random alcohol 

### misuse testing protocol that ' 

### must be re11ected in the carrier's program. It cannot, in itself, provide a 

### basis for the violation of
a regulation. A -violation 

### f()r failure by a 

### certificate holder to comply 

### with this standard 

### would require a showing that the certificate l1older.'s 

### program failed to include the**typ~** 

### ofselection process described in 14 C.F.R. Part 121, Appendix .T, 

### §TTT.C.5. The regulation that must be alleged as violated 

### would be 14 C.P.R.§ 121.459(b) (2007), which provided 

### that: 

### No cert(ficare holdershall 

### use anyperson who meets the definition ofcovered employee in appendix J 

### to this partto perform a safety-sensitive functjon listed in that appendix 

### unless suchperson is**.w~;ect** 

### to testing for alcohOl mi.\"U5e 

### in accordance with 

### theprovisions of appendix .1. 

### (Emphasis added.) However, 

### Complainant 1:ailed 

### to allege a violation of 14 C.F.R. 

### § 121.459(b) in the Co1nplaint. Hence, the ALJ's 1inding ofaviolation involving random 

### alc<,hol mjsuse testing ofSampson is reversed. : Complainant intended to allege 20 violations in the complaint (FAA Reply Briefat 6),,
one ofwhich jnvolved the failure to include Sampson ,ill 

### its random alcohol testing pool. ' 

### However, Complainant failed to allege 

### a violation ofSection 121.459(b). 

### As a result ofthis failure, Complainant actually alleged only 19 violations. Tn his 

### decision. the ALJ statuti that h!! assessed a $200,000 civil**penr.~lty** 

### for 19**violation~.** 

### This decision also fi11ds that there were 19 violations.

. 2. Dl·ug TestingPool 

### Regarding the failure 

### to 

### place Sampson into a random dmg testing pool, which was a violation of 

### 14 C
..F.R. § 

### 121.457, Pim1acle's argument that the sanction was too high 

### is not ' 

### co1upclling. The 

### violation was egregious because there 

### was no oppo1tunity to detect drugs during

### random testing. On three occasions**~iver** 

### the course of7rnonths, Sampson performed safety.scnsitive 

### functions as an aircraft dispatcher for 

### Pbmacle without being included in the 

### 1407/19/2012 13:55 FAX 2024935142 FAA + OMS 141018/023

random drug 

### testing pool. A penalty that is less than hl:l.ll' of

### tl1e maximum $25,000 civil penalty perviolation is appropriate, and

### ret16ct~ 

### lhe gravity of

### this violation as well as the aggravating factors present

### in this case. 

### K Remedial Actions Pil1naclc argues 

### that-the ALJ failed 

### to take account

### ofPinnacle's remedial actions. 

### The 'Ad)ninistratol' has held that "swift, comprehensive, and positive 

### ?OrrccLive action maywarrant a reduction

### i~ an otherwise reasonable civil penalty.'' 

### Mole-Master Services Corporation, FAA OrderNo. 2010-11 al 11 (Novcmber22, 2011) (citing 

### TiVhitley, FAA 

### OrderNo. 2009-4 at 10 (January 14, 2009)). Pinnacle 

### asse11s thi:lt 

### ittook the following remedial actions that 

### it argues were mitigating: fRJetraining 

### managers on drug and alcohol testing, redesigning the training resources available to those managers to makethem more accessible ('fran.

### 24&:~ 1-249:8), implementing atwo-tiered audit system

### for**~nsuring** intem.al compliance 

### (Tran. 247:2-248:10), est.f.lblishing newprocedures for 

### ensuring**safety~sensitivc** 

### employees have received verified negative DOT 

### dmg tei'it results prior to training (Tran. 252: 1-253:4), and implcrnenting a new Human

### Re~ources management system thaL allows for better tracking ofemployees' drugtesting, hire, and training dates. (Tran. 219:12-15; 219:21-220:3.) (Appeal Briefat 23.) Although Pjnnacle states that 

### it retra,ined its

### m~nagers regarding

### ~!rug and alcohol tes6ng, it cites to nothing in the record to support that claim. As for changing the manager training from
a lecture format to an electronic fonnat, that

## 1s hardly a substantial change. Althm1gh Pinnacle states that some ofits employees like the new format, the change is not significant 

### enough to merit any reduction inthe civil penaltythat**wa~** assessed. Regarding Pjnnacle's two-tiered audit system, whereby it now audits 

### both 

### its own compliance and that M.its third-party contractor, se]f
...monitoring is a changethat Pinna.cJc should have realized 

### it

### n~e-ded when its 

### violations began

### year~:; ago. i\s the A

### LJ stated, 

### itis difficult to 1507/18/2012 13:55 FAX 2024835142 FAA + OMS 

### laJ 018/023
knowwhether Pinnacle's actions represent a real change or an effort simply to pacify the F.Ai\., to create "smoke and 

### mirmrs." (Initial Decision at 12.) Regarding the 

### new procedures for 

### ensuri11g that

### safety~sen!iitive employeeshave received verified negative DOT 

### dn1g test restllts before tra1n1ng, this involved :>imply checking to see that the class roster includes only 

### individual!:; who 

### have received negative drug tests and that 

### only individuals onthe

### ro~Ler 

### are 

### il1 the class. (Tr. 252-253.) It is unclear why 

### Pinnade 

### was not doing these simplethings 

### trom the start. They do not 

### wan-ant a reduction in the civil·pcnalty
_ But more importantly> the primary issue in 

### this case is n()t whether 

### 11egative drug test rl:sults
were in hand before training commenced, but ratherwhetherindividuals were hi.red or 

### transferred before the 

### receipt of

### test results
.



### . , Finally, regarding Pi1macle's implementation ofa new Human Resources computer system, which Pinnacle states was intended to allow bl.:ttcr tracking ofemployees' drug

### tc~Ling, 

### hiri11g, nnd training 

### dates, the A.LJ stated that it

### was a re]atively C<'IS)' step. He questioned why zm airlineofPinnacle's size and 

### resources would continue 

### to .depend 

### or1 a computer program 

### that its
own staffdescribed as old and antiquated. He further stated that acquisition ofnew 

### software wou1d not 

### correct theproblem without a change in .Pilu1aclc's 

### laissez-faire approach to preemployment drug testing
.. (Initial Decision at 12.) Whetherthis

### wa~ a relatively easy step, as the 

### ALJ fbund, 

### cannot 

## be detennincd on this 

### record. However, as the 

### ALJ found, Pinnacle's 

### rcpl,tcement ofan old and antiquated 

### system does 

### not

### justify a 

### redtJction ofthe civil penalty

### asscsst~d 

### in this case because Pinnacle should not have been using an inf.ldcquatt'l system to ' monitor compliance with the FAA's dmg and alcohol testing regulations. The burden of persuasion was 

### on Pinnacle, and 

### it failed to iritroducc evidence that waJTanted mitigation.



### 1607/18/2012 13:55 FAX 2024835142 FAA 

### -. OMS**~** 020/023


### G. PriorVioJadons Pinnacle argues thatthe ALJ relied oninadequate evidence ofprior violations anJ therefore the sanction of$200,000 is excessive. At the hearing, Complainant called 

### Amy frankel, FAA Field Operations l3ranch Manager, to introduce the following repo11 summaries from the FAA's Enforcement Infonnation System (ElS\ which is ''an automated management infom1ation systemthat tracks the FAA's enforcement actions 

### on a nationwide basis." (PAA Order 2150.3B, 9-1 (2)(a).) The EIS "is the FAA'sprimary database for tracking 

### infom1ation ahout enforcement actions for statutory or regulatory violations." (.!d.)· Ms. Frankel personally reviewed Complainant's 

### computer records 

### containing informati()n about Pinnacle's violation history, and 

### she found the following entries: 1. ORD [ORDER] ASSESSING CP [CIVIL PENALTY] $5,000 (2000) (Exhibit. A-8.) 2. ORD**AS~rESSfNG** CP $11,000 (2000) 

### (Exhibit A-9.) 

### 3. CIVIL PENALTY $27>000 (2005) 

### (Exhibit A"lO.) 4. ORD ASSESSING CP $10,000 (2006) (Exhibit A-11.) 5. ORD ASSESSING CP $10,000 (2007) (ExhjbitA-12.) 

### The doctlmentation sh()wed 

### that these civil penalties were assessed for noncompliance withthe drug and alcohol testing regulations. (Tr. 161.) Pinnacle's counsel admitted during 

### opening argument at the hearing thatthere were prior violations. (Tr. 78.) However, on appeal, Pinnacle argues 

### that Complainant's proofofprior violations was inadequate. According

# to Pinnacle, Complainant should have providedthe actual orders assessing 

### civil penalty because the summaries contained**abbrcviatt~d** 

### langtlage and limited information.
1707/19/2012 13:55 FAX 2024935142 FAA "' OMS 141021/023**Pinnacl~** failed to make**thi~** objection at the hearing and to preserve this argument for appeal. In 

### any event, 

### any abbreviations were 

### explained (Tr. 165) and there 

### was sufficient infonnatioil- disposition, amount, types ofvioJations, year. There was no 

### need to lmow 

### specifica.lly what 

### happened to 

### cause these**prc~cmployment** violations or

### the exact number of ' violations in each civil penalty case. Pinnacle also argues that the report summaries may have actually rp11ected compromise orders with findings ofno violations under 14 C.

# y.R. § l3.16(n)(1 )(2007). llowever, nothing in the report so indicares. Tt 

### was up to Pinmicle to bring out, ifit could, findings ofno violations, for example 

### on. cross-examination ofComplainant's witness. Pinnacle failed to 

### rebut the evidence offered at the hearing. Although Pinnacle argues that 

### ithaclm) oppoltunityto review the report summaries before the hearing, 

### it apparently failed to ask Complainant for any repmts ofprior violations. (Tr. 156.) .t\s the ALJ :.aid, Pinnacle's counsel shoulci have known- ifhe had read the statute and the criteriathat Complainant must follow in dcterrnining the civil penalty amounts- that Pinnacle's prior history was going to he an issue inthis matter. 

### (Tt·. 158.) 

### Conclusion As discussed**above~** Pinnacle's argument regarding the ALJ's finding ofa violation involving lts failure to conduct

### pre~employment testing of

### St~wa11 and to receive negative

### dn~g test results prior to hiring him is**rc_j(;ct~d.** While there was evidencethat Sampson was not included in the pool 

### I<.>rrandom alcohol testir1g, Complainantfailed to allege a violation or 14 C.F.R. 

### § 121.459, anu, consequently, 

### it failed to allege a regulatory violation. Hence, as the ALJheld, a total of 19 violations were**pr~ven** in this case. Pinnacle

### ~:~rguccl for a reduction ofthe $200,000 dvH penalty. As discussed EJbovc, the


### 1807/19/2012 13:55 FAX 2024985142 FAA -t 

### OMS 141022/023



### FAA had 

### the authority to assess a civil penalty not 

### exceeding $25,000 per violation. 

### Hence, for 19 violations, 

### a maximum civil penalty of$475,000 col.Lld have been assessed. The $200,000 civil penally imposed by 

### the ALJ 

### is less 

### than halfof$475,000. Dntg and 

### alcohol testing violations put lives 

### in danger 

### andthus wan-ant significant civil 

### penalties. When

### the tests do not occur as they ought, employees 

### in safety-sensitive positions and potential einployt:e-s for these positicms who would have**test~d po~itive**  

### for drugs or 

### alcohol or 

### both arc not

### d~tected?**0** 

### Pinnacle's argument regarding mhigating factors, as discussed, is rejected. Turning 

### nowto 

### aggravating factors, a respondent's history ofprior violations is an aggravating factor. The FAA's**Enfor~ement** 

### Sanction Guidance Table that was in effect at the time, 

### FAA OrderNo. 2l50.3A, Appendix 4, 

### stated, «Alleged violations 

### will fall within the nOlmal 

### range only when theviolator has no prior violations." As discussed 

### above, Pinnacle had 'five prior violations. Further, 

### the existence ofsystemic violations is another aggravating factor. Ilere, 

### we do not 

### have an isolated, single violation. 

### Instead. 19 separate violations took place, and

### asthe ALJ pointed oul, 

### Pinnacle's failure 

### to bring its drug testing program into compliance 

### with the regulations inthis case lasted nearly a year.

### (lniti~l 

### Dbci.sion at 9} 1

:wDrug and alcohol testing has been proven to

### b~ an effective detection tooL 

### Aviation employers have reported t() the FAA large numbers ofpositive tests. 69 Fed. Reg. 1840, 1840 (January 12, 200tl).
. /.J This decision will be 

### considered an 

### order assessing 

### t:ivil penalty unless Pinnacle fi'les 

### a petition 

### for review within 60 

### days ofservice of

### this decision with 

### tho U.S. Cou1t 

### ofAppeals for the Pist.ric1. uf Columbia 

### Circuit or·th<.: U.S. Court 

### ofAppeals 

### torthe 

### circujt in which Pinnacle resides 

### l)r has its principal place ofbusiness. 14 C ..F.R. 

### 9§ l3.16(d)(4), J3.233(j)(2), 13.235 (2011). See 71**F~.:d.** Reg. 70465 (December5, 2006)**(regardingpcti~ions** 

### tor review of1in<1l agency decisions in 

### civil penalty 

### cases). 

### 1907/19/2012 13:55 FAX 2024935142 FAA 

### -. OMS



### Inthe absence ofany mitigating factors, and inthe presence ofcertain aggravating 

### factots, the civil penally 

### assessed by the**ALJ~OO,OOO** 

### ormed.

# ~EL~A ACTING ADMfNISTRATOR Federal Aviation Administration



### 20 141023/023