RECEIVED 

Before the U.S. Department of Transportation MAY 3 \ 2011 

i DK-A*[ V , Federal Aviation Administration LJ ^ A I-^IK.. ^ 

! HEARING DOCKET 

M & R HELICOPTER 

Docket No. CPlOSOOOll 

FAA Case No. 2009SO950434 

Chief Judge Ronnie A. Yoder 

COMPLAINANT'S PRE-HEARING BRIEF 

Complainant files this Pre-Hearing Brief in compliance with the Chief 

Administrative Law Judge's order given during the March 25, 2011, pre-hearing 

conference. During that pre-hearing conference, the Chief Administrative Law Judge 

directed the Complainant to submit a pre-hearing brief regarding the following issues: 

1. The applicability of moonlighting to this matter and the amendments to 

Appendix I without an amendment to Appendix J; 

2. The applicability of FAA v. David E. Everson, d/b/a, North Valley 

Helicopters, FAA Docket No. CP99WA0002 (2000); 

3. Complainant's position with respect to providing an un-redacted 

Enforcement Investigative Report; and 

4. The calculation of the civil penalty and whether the amount of the penalty 

should be reduced based on the financial documents M & R Helicopters, 

LLC C'M & R Helicopters") provided to the FAA. 
DISCUSSION 

1. The moonlighting loophole is not applicable in this case because the 

moonlighting loophole in the drug testing regulations did not exist at the time of 

M & R Helicopters' violations and never existed in the alcohol testing regulations. 

Prior to 2004, a moonlighting loophole existed in 14 C.F.R., part 121, Appendix I 

of the drug testing regulations that allowed employers to use individuals to perform 

safety-sensitive functions while being included in the drug program of another employer.' 

The language cited for this moonlighting loophole was contained in 14 C.F.R. part 121, 

Appendix I, § 11 (2003) prior to the revisions enacted in 2004, and was as follows: 

Employer h a paii 121 certificate holder, a part 135 certificate holder, an 

operator as defined in § 135.1(c) of this chapter, or an air traffic control 

facility not operated by the FAA or by or under contract to the U.S. 

military. Provided, however, that an employer may use a person who is 

not included under that employer's drug program to perform a safetysensitive function, if that person is subject to the requirements of another 

employer's FAA-approved antidrug program. 

This language created a situation wherein, 

[ujnder the moonlighting loophole, when an employee was covered under 

an employer's drug testing program (Employer A), another employer 

(Employer B) could have used that employee to perform safety-sensitive 

functions even when the work was unrelated to the work with Employer 

A. 

Antidrug and Alcohol Misuse Prevention Programs for Persormel Engaged in Specified 

Aviation Activities; Final Rule, 69 Fed. Reg. 1840, 1843 (Jan. 12, 2004). 

This arrangement, however, created significant safety issues in that employers 

could be unaware of its employee's activities for the other employer. Id, For example, if 

an employee was terminated by the employer under whose drug testing program he was 

' Effective July 13, 2009, the FAA's drug and alcohol regulations in 14 C.F.R. part 121, Appendices I and J 

were recodified and are now found in 14 C.F.R, part 120, subparts E and F. See Final Rule, 74 Fed. Reg. 

22649 (May 14, 2009). The Final Rule is also available at the following internet address: 

http://www.faa. gov/about/officeorg/headquartersoffices/avs/offices/aam/drug^alcohol/testing/ 
covered, the other employer may never find out and would then allow the individual to 

perform safety-sensitive work without being covered by the FAA-mandated drug testing 

program. Id. The FAA changed the language of 14 C.F.R. part 121, Appendix I, § II in 

2004, 

to make it clear that no employer can use a contract employee to perform a 

safety-sensitive function unless the contract employee: is included under 

that employer's FAA-mandated antidrug program; or is included imder the 

contractor's FAA-mandated antidrug program and is performing a safetysensitive flection on behalf of the contractor. 

/^a t 1842-43. 

With this revision, the FAA made it clear that "employers will only be permitted to rely 

on companies with whom they have contractual relationships to cover testing of their 

employees." Id. at 1843. The revised language of 14 C.F.R. part 121, Appendix I, § II 

(2005) was as follows: 

Employer is a part 121 certificate holder, a part 135 certificate holder, an 

operator as defined in § 135.1(c) of this chapter, or an air traffic control 

facility not operated by the FAA or by or imder contract to the U.S. 

military. An employer may use a contract employee who is not included 

imder that employer's FAA-mandated antidrug program to perform a 

safety-sensitive function only if that contract employee is included under 

the contractor's FAA-mandated antidrug program and is performing a 

safety-sensitive function on behalf of that contractor {i.e., within the scope 

of employment with the contractor). 

With regard to the alcohol testing regulations contained in 14 C.F.R. part 121, 

Appendix J, the same moonlighting loophole did not exist prior to 2004 and therefore, did 

not require closing during the revisions made in 2004. Specifically, the language in 14 

C.F.R. part 121, Appendix J, § I.D (2003) stated the following: '^Employer means apart 

121 certificate holder; a part 135 certificate holder; an air traffic control facility not 

operated by the FAA or by or imder contract to the U.S. military; an operator as defined 
in 14 C.F.R. 135.1(c)." After the revisions made in 2004, the language in 14 C.F.R. part 

121, Appendix J, § I.D was unchanged. 

The moonhghting loophole that was contained in 14 C.F.R. part 121, Appendix I 

created many safety concerns that led to the closing of the loophole in 2004. The same 

moonlighting loophole was never in existence within 14 C.F.R. part 121, Appendix J, and 

therefore did not need to be addressed through the amendments made in 2004. 

Accordingly, there was no moonlighting loophole in either the drug or alcohol testing 

regulations that pertained to M & R Helicopter's regulatory violations in 2007 and 2008. 

The moonlighting loophole that existed in the drug testing regulations prior to 2004 was 

no longer in existence at the time of M & R Helicopters' regulatory violations. In 

addition, there never was a moonlighting loophole in the alcohol testing regulations and 

there was certainly no such loophole in existence at the time of M & R Helicopters' 

regulatory violations. Therefore, contract employees who performed safety-sensitive 

functions for M & R Helicopters were required to either be included in M & R 

Helicopters' drug and alcohol testing programs or be included in the drug and alcohol 

testing programs of a company with whom M & R Helicopters contracted to provide such 

safety-sensitive functions. In this case, Mr. Baker was not under M & R Helicopters' 

drug and alcohol testing programs or under the drug and alcohol testing programs of a 

company that was contracted with M & R Helicopters to provide safety-sensitive 

functions. 
2. The holding in Everson is not applicable in this case because at the time of 

the regulatory violations, M & R Helicopters had an active part 119 certificate with 

operations specifications authorizing it to conduct operations under part 135 that 

required compliance with FAA drug and alcohol testing regulations. 

At the time of the violation, M & R Helicopters had an active 14 C.F.R. part 119 

certificate with operations specifications authorizing it to conduct operations under part 

135 that required its compliance with the FAA Drug and Alcohol Testing Regulations 

found in Appendices I and J of 14 C.F.R. part 121. 

a. M & R Helicopters Had Commenced Operating Under Part 135 

In Everson, Judge Koiko found that the "Respondent was not obligated to create 

or implement an antidrug program or an AMPP prior to the carrier's actual submission of 

such plans to the FAA." Everson at 2. In that case, the 14 C.F.R. part 119 certificate 

holder with operations specifications authorizing it to conduct operations under part 135 

was cited for numerous violations including failing to implement drug and alcohol testing 

programs and to perform such testing on its safely-sensitive employees. Id. However, 

the Respondent in Everson had never commenced part 135 operations. 

In Everson, the company was not required to follow an antidrug program because 

it did not have to submit an antidrug program plan to the FAA and obtain approval prior 

to beginning part 135 operations. See 14 C.F.R. part 121, Appendix I, § IX.2(a) (1996). 

The drug testing program needed to be implemented "no later than the date of inception 

of operations." Id. In that case, the company had not commenced part 135 operations 

and therefore did not need to implement its drug testing program. This requirement was 

amended in 2004 such that 14 C.F.R. part 121, Appendix I, § IX.B.l (2004) required that 

a company applying to conduct operations under part 135 must "[i]mplement an FAA 

^ The Everson case is not precedent for the purposes of this matter. The FAA chose not to appeal Judge 

Kolko's initial decision and the FAA Decisionmaker did not make a finding as to Judge Kolko's decision. 
antidrug program no later than the date you start operations, and meet the requirements of 

this appendix." 

In this case, M & R Helicopters commenced 14 C.F.R. part 135 operations in or 

prior to 2005 and continues to have an active 14 C.F.R. part 119 certificate with 

operations specifications authorizing it to conduct operations under part 135."^ M & R 

Helicopters certified in its Operations Specifications ("OPSPECS") that, "the certificate 

holder who operates under Title 14 Code of Federal Regulations (CFR) Part 135 certifies 

that it will comply with the requirements of 14 C.F.R. Part 121 Appendices I and J and 49 

CFR Part 40 for its Antidrug and Alcohol Misuse Prevention Program." OPSPECS 

A449.a.'' The OPSPECS "remain in effect as long as the certificate holder continues to 

meet the requirements of Part 119 as specified for certification." OPSPECS AOOl .b.^ 

M & R Helicopters, as a part 14 C.F.R. part 119 certificate holder with operations 

specifications authorizing it to conduct operations under part 135, was required under 14 

C.F.R. part 121, Appendix I, § IX.B.l to implement an antidrug program no later than the 

date it started operations and to meet the requirements of Appendix I. In addition, under 

14 C.F.R. part 121, Appendix J, § VII.B.1,M & R Helicopters was required to implement 

an alcohol misuse prevention program no later than the date it started operations and to 

meet the requirements of Appendix J. The requirements in Appendices I and J included 

the random testing of safety-sensitive employees, which included individuals performing 

aircraft maintenance and/or preventive maintenance duties. See 14 C.F.R. part 121, 

Appendix I, § V.B (2006), 14 C.F.R. part 121, Appendix J, § III.C (2006). 

^ M & R Helicopters' flight logs contain records of part 135 operations starting in 2005. 

* Attachment A. 

' Attachment B. 
M & R Helicopters had commenced part 135 operations, which triggered the 

requirement to comply with the FAA drug and alcohol testing regulations. M & R 

Helicopters also certified that it would comply with the drug and alcohol testing 

regulations when it received its OPSPECS. Appendices I and J both required that M & R 

Helicopters perform random drug and alcohol testing on its safety-sensitive employees. 

Mr. Edward Baker performed aircraft maintenance and/or preventive maintenance on 

M & R Helicopters' aircraft for M & R Helicopters and therefore should have been 

included in M & R Helicopters' random drug and alcohol testing pools or in the random 

drug and alcohol testing pools of a company contracted by M & R Helicopters to perform 

aircraft maintenance and/or preventive maintenance on M & R Helicopters' aircraft. 

b. Part 135 Required Adherence to the Drug and Alcohol Testing Regulations Found 

in 14 C.F.R. Part 121, Appendices 1 and J 

14 C.F.R. § 135.25(a) (2006) states that "[e]xcept as provided in paragraph (d) of 

this section, no certificate holder may operate an aucraft under this part unless that 

aircraft - (2) [i]s in an airworthy condition and meets the applicable airworthiness 

requirements of this chapter, including those relating to identification and equipment." 

14 C.F.R. § 135.25(b) (2006) states that "[e]ach certificate holder must have the 

exclusive use of at least one aircraft that meets the requirements for at least one kind of 

operation authorized in the certificate holder's operations specifications." In this case, a 

Bell-206-B, Registration No. N98CM, is listed m section D085 of the OPSPECS as the 

sole aircraft operated under M & R Helicopters' 14 C.F.R. part 119 certificate with 

operating specifications authorizing it to conduct operations under part 135 and is 

therefore required to meet the requhements for part 135 operations as authorized under 
M & R Helicopters' OPSPECS.^ Again, under 14 C.F.R. part 121, Appendix I, § V.B 

and 14 C.F.R. part 121, Appendix J, § III.C, M & R Helicopters was required to conduct 

random drug and alcohol testing on its employees who perform safety-sensitive functions 

such as aircraft maintenance and/or preventive maintenance for a company engaged in 

part 135 operafions. 

In a letter of interpretation, the FAA directly addressed the issue of the 

interrelationship of the drug and alcohol testing requirements with holding a part 119 

certificate with operation specifications authorizing operations under part 135. See FAA 

Letter of Interpretation issued by Rebecca MacPherson, Assistant Chief Counsel, 

Regulafions, to Fran DeJoseph (2006 WL 3792063 (D.O.T.)) J In this letter, the FAA 

made it clear that aircraft listed on OPSPECS issued under 14 C.F.R. part 135 must be 

maintained in accordance with part 135. Id. This includes having all maintenance that is 

performed on the aircraft to be done by a mechanic who meets the drug and alcohol 

testing requirements of part 121. Id. To illustrate, the FAA noted that 

14 C.F.R. § 135.251(c) "contemplates a situation in which an aircraft requires emergency 

maintenance and there are no maintenance providers subject to appendix I of part 121 at 

the airport." Id. In these cases, 14 C.F.R. § 135.251(c) would allow for maintenance to 

be performed by an individual not subject to Appendix I, but the operator would then 

have to notify the FAA within 10 days of this maintenance and also have the aircraft 

inspected at the next airport where they could have individuals who are under the drugtesting regulations perform the inspecfion. Id. The FAA then made it clear that "[ojther 

than in the circumstances described in section 135.251(c), maintenance by persons not 

Attachment C. 

^ Attachment D. 
tested pursuant to appendix I of part 121 is prohibited on aircraft operated under part 

135." Id. Non-emergency maintenance on an aircraft that is listed on the OPSECS of a 

part 119 certificate holder with operations specifications authorizing it to conduct 

operations under part 135 by a person not under the drug and alcohol testing requirements 

"would be a violation of the regulations, which could result in penalties and require 

corrective actions, including the possible removal of the aircraft from the certificate 

holder's operations specifications." DeJoseph Letter of Interpretation, citing 

14C.F.R. § 119.51. 

The DeJoseph Letter of Interpretation also addressed the issues surrounding what 

regulations must be adhered to when a part 119 certificate holder with operations 

specifications authorizing it to conduct operations under part 135 is not operating under 

part 135, but under part 91. The FAA acknowledged that when conducting part 91 

operations, flights may be conducted under part 91 operating rules, but "[i]f an aircraft is 

listed on the operation specifications of a part 135 certificate holder, certain part 135 

requirements, such as compliance with approved maintenance programs, apply 

continuously without interruption." DeJoseph Letter of Interpretation. Even if an aircraft 

listed on a part 135 certificate holder's OPSPECS is operated under part 91, the operator 

"would be required to comply with the drug and alcohol testing requirements of 

14 C.F.R. sections 135.249-135.255 and also section 135.253." Id. Any maintenance 

performed on an aircraft that is listed on a part 135 operator's OPSECS that is "done by a 

mechanic that does not meet the drug and alcohol requirements of FAR 135 and 121" is a 

violation, and such "violation would occur at the time such maintenance is performed." 

Id. In these situations, "[w]hether the aircraft is flown is not relevant." Id. 
The holder of a part 119 certificate with operations specifications authorizing 

operations under part 135 is required to maintain the aircraft listed in the holder's 

OPSPECS in accordance with part 135. This includes having any maintenance 

performed on such aircraft be done by an individual that meets the drug and alcohol 

requirements of parts 135 and 121 regardless of whether the operator is conducting 

flights. M & R Helicopters is the holder of a part 119 certificate with operations 

specifications authorizing operations under part 135 and is therefore required to maintain 

its aircraft in accordance with part 135. Therefore, M & R Helicopters was required to 

have any maintenance performed on an aircraft listed in its OPSPECS be done by an 

individual that meets the drug and alcohol testing requirements of parts 135 and 121. 

M & R Helicopters had maintenance performed on its aircraft by an individual that did 

not meet those requirements. 

c. The Applicability Language Found In 14 C.F.R. § 135.241 Did Not Apply to 

14 C.F.R. $$ 135.251 and 135.255 

In Everson, Judge Kolko found that the respondent, who had yet to commence 

operating as a part 135 certificate holder, had no obligation to adhere to the drug testing 

requirements found in 14 C.F.R. parts 135 and 121. Everson at 2. Judge Kolko based his 

decision in large part on language found in 14 C.F.R. § 135.241 that limits the 

applicability of both 14 C.F.R. §§ 135,251 and 135.255. However, the language found in 

14C.F.R.§§ 135.251 and 135.255 shows that the applicability of 14 C.F.R. §§ 135.251 

and 135.255 was contained within the sections themselves. 

^ In the EAJA case held after the ruling in Everson, the FAA Decisionmaker did not make a determination 

as to whether Judge Kolko's decision was appropriate. See In the Matter of: David E. Everson, d/b/a North 

Valley Helicopters, Inc., FAA Order No. 2004-5, Docket No. CPOOWAOOOl (EAJA) (Sep. 22, 2004). 

However, the FAA Decisionmaker did find there were reasonable arguments made that the regulations in 

question were applicable, noting that the regulations citied in Everson did refer to "each certificate holder" 

10 
The decision in Everson, relied on language in 14 C.F.R. § 135.241 that stated, 

"this subpart [Subpart E] prescribes the flight crewmember requirements for operations 

under this subpart." Everson at 2. Of note is that 14 C.F.R. § 135.241 said that the 

subpart applied io flight crewmembers (emphasis added) who are conducting operations 

under Subpart E. It is true that a flight crewmember can conduct flights that are covered 

by 14 C.F.R. part 135, for which the drug testing requirements apply, or 14 C.F.R. part 

91, for which they don't. Although 14 C.F.R. §§ 135.251 and 135.255 fell within 

Subpart E at the time of M & R Helicopters' violations, the language in these sections 

indicated that they covered more than flight crewmembers. The plain language of 

§ 135.251 stated that "[e]ach certificate holder or operator shall test each of its 

employees who performs a fijnction listed in appendix I to part 121 of this chapter in 

accordance with that appendix."^ 14 C.F.R. § 135.251 (1997) (emphasis added). The 

functions listed in appendix I included flight crewmember duties, flight attendant duties, 

flight instruction duties, aircraft dispatcher duties, aircraft maintenance or preventive 

maintenance duties, ground security coordinator dufies, aviation screening duties, and air 

traffic control duties. 14 C.F.R. part 121, Appendix I, III (1997). With regard to alcohol 

testing, 14 C.F.R. § 135.255 stated that. 

and therefore could be interpreted to apply to any certificate holder regardless of the operations flown. Id. 

In addition, the FAA Decisionmaker noted that language in the preamble to the final rule for alcohol testing 

promulgated in 2004 stated that "the rule would include "essentially the same classes of employers as are 

covered by the anti-drug rule: 14 C.F.R. part 121 certificate holders, 14 CFR part 135 certificate holders . . . 

."' Id. {citing 59 Fed. Reg. 7380, 7381 (February 15, 1994). The FAA Decisionmaker also notes that the 

"FAA'S guidelines for implementing anti-drug programs stated that: "[EJvery single-person aviation 

business [under Part 135] .. . must be part of a drug program approved by the FAA.'" Id. (citing Office of 

Aviation Medicme, Drug Abatement Branch, ''Guidelines for Single-Person Aviation Businesses: 

Implementing the FAA Anti-Drug Program," p. 3 (Feb. 1990). 

^ 14 C.F.R. §§251 and 255, as well as 14 C.F.R. part 121, Appendbt 1, §111, 14 C.F.R. part 121, Appendix 

J, § I.D, and 14 C.F.R. part 121, Appendix J, § II remained unchanged until the drug and alcohol 

regulations were recodified to 14 C.F.R. part 120 in 2009. 

11 
[n]o certificate holder or operator shall use any person who meets the 

definition of "covered employee" in appendix J to part 121 to perform a 

safety-sensitive function listed in that appendix unless such person is 

subject to testing for alcohol misuse in accordance with the provisions of 

appendix J. 

14 C.F.R. § 135.255 (1997) (emphasis added). 

A "covered employee" was defined in 14 C.F.R. part 121, Appendix J, § I.D (1997) as "a 

person who performs, either directly or by contract, a safety-sensitive fijnction listed in 

section II of this appendix for an employer . . . ." The fiinctions listed in section II of 

Appendix J included flight crevymember duties, flight attendant duties, flight instruction 

duties, aircraft dispatcher duties, aircraft maintenance or preventive maintenance duties, 

ground security coordinator duties, aviation screening duties, and air traffic duties. 

14 C.F.R. part 121, Appendix J, § II (1997). Therefore, while 14 C.F.R. §§ 135.251 and 

135.255 were contained within Subpart E, the applicability of these sections covered a 

greater scope of individuals than the flight crewmembers contemplated in 14 C.F.R. 

§ 135.241. Thustheapplicability of 14C.F.R. §§ 135.251 and 135.255 was found within 

these regulations themselves and not within 14 C.F.R. § 135.241. 

3. Redaction of the Enforcement Investigative Report was proper. 

On October 21, 2010, Complainant provided a copy of the Enforcement 

Investigative Report ("EIR") to Respondent with a letter stating as follows: 

Enclosed you will find a copy of the Federal Aviation Administration's 

enforcement investigative report (EIR) in the above-referenced case. The 

enclosed EIR includes all releasable documents upon which the FAA 

relied in preparing and initiating the above-referenced enforcement action. 

The portions of the EIR that have not been released are withheld as 

privileged because they contain the investigator's analysis, 

recommendations, and opinions. They are privileged because they are 

deliberative, pre-decisional materials, rendered by agency staff members 

in the course of reaching a final determination or position on a particular 

matter under agency consideration. 

12 
See, e.g., Jordan v. Department of Justice, 591 F.2d 753, 774 (D.C. Cir. 1978) (en 

banc). 

The redactions made were consistent with the FAA's practices for releasing EIRs 

in enforcement cases. ^^ All EIRs contain three sections labeled A, B, and C. See FAA 

Order 2150.3B, Chapter 8, Subparagraphs 3(a) (b) and (c). Section A is FAA Form 

2150-5, Secfion B is the Statement of Case and Factors Affecting Sanction, and Section C 

is the Items of Proof. Id. 

Section A 

FAA Form 2150-5, contained in Section A, contains various fields of 

information." Among other things, it allows the investigating field office to make a 

recommendation regarding the sanction type and amount and indicate the regulations it 

believes were violated. This is merely a recommendation, however; it is not final. There 

is then a section where, after reviewing the case, the regional division (generally a team 

coordinator or regional manager) makes a recommendation regarding the sanction type 

and amount and indicates the regulations it believes have been violated. These internal 

recommendafions and communications, contained on FAA Form 2150-5, are later 

reviewed by the Drug Abatement Division at FAA Headquarters and the Office of Chief 

Counsel before any final agency determination is made with regard to the regulations that 

have been violated, the type of action that will be taken, or the sanction that will be 

sought. They may or may not be adopted. Because these recommendations and 

impressions are not final agency decisions, but rather are the inspector's, team 

'** Sections A and B of the EIR are provided in Attachment E. We are submitting a redacted copy of the 

E[R that clarifies where the redactions occurred. We have also included the headings in the document to 

illustrate the deliberative nature of these secfions of the EIR. 

'' Attachment F. 

13 
coordinator's, or regional manager's recommendations, interpretations, opinions, or 

analyses, the fields of FAA Form 2150-5 that reflect the recommended sanction, amount, 

and regulations believed violated, are routinely redacted from FAA Form 2150-5 in 

Section A of the EIR before it is released in any FAA enforcement case. 

Section B 

Section B of the EIR contains the inspector's Statement of Case and Factors 

Affecting Sanction. This is a statement of the facts and alleged statutory or regulatory 

violations found during the investigation, the investigator's evaluation of the case, and 

opinions about the case. The investigator sets forth the regulations believed violated, sets 

forth their recommendations on sanction, and analyzes the factors affecting sanction. 

Since this section is a combinafion of facts, opinions, and analysis, it typically requires 

redaction upon release. Section B of the EIR in this matter also contained an Enforcement 

Decision Process (EDP) Worksheet that was completed by the inspector and the Drug 

Abatement Division of the FAA. This worksheet aids the inspector in determining the 

appropriate type of enforcement action on a case-by-case basis. The EIR released to 

Respondent is typical of those provided in enforcement cases; Section B is provided, with 

factual statements from the inspector released, but opinions, analysis, recommendations, 

deliberative process withheld. 

Section C 

Section C contains a numerical index of the Items of Proof and the originals or 

certified copies of each piece of evidence obtained to prove the apparent violations. Id. 

In most cases, and the present case is no exception, the evidence contained in Section C 

forms the basis for Complainant's case. Since the evidence itself is factual, very little is 

14 
generally withheld under a deliberative process exception. In this case, nothing was 

redacted or withheld from the entire Section C or Items of Proof released to Respondent 

in this case. Every piece of evidence was produced to respondent in its original, imredacted form. 

The Redacted Portions of the EIR Were Properly Withheld Deliberative, PreDecisional Materials 

Because the actual evidence that forms the basis for Complainant's allegations 

was produced to Respondent in its entirety (un-redacted) in Section C, the only items at 

issue are the portions of the inspector's statement in Secfion B, and FAA Form 2150-5 in 

Section A, which were appropriately redacted to withhold the inspector's analysis, 

recommendations, and opinions. 

The redacted portions of the EIR were properly withheld imder 5 U.S.C. 

§ 552(b)(5) which contains the exemptions from the Freedom of Information Act that 

include "matters that are inter-agency or intra-agency memorandums or letters which 

would not be available by law to a party other than an agency in litigation with the 

agency." The purpose of the exempfion contained in 5 U.S.C. § 552(b)(5) is "to 

encourage the 'frank discussion of legal and policy issues.'" Wolfe v. Department of 

Health and Human Services, 839 F.2d 768, 773 (C.A.D.C. 1988) {citing S.Rep. no. 813, 

89*^ Cong., 1'^ Sess. 9 (1965)). See also Jordan v. Department of Justice, 591 F.2d 753, 

772 (D.C. Cir. 1978) (en banc) (stating that the deliberative process exemption "protects 

the 'consultative fiinctions' of government by maintaining the confidentiality of 'advisory 

opinions, recommendations and deliberations compromising part of a process by which 

'^ In a letter dated April 6, 2011, Dr. Selig referred to several documents he claims were "dedacted" from 

the EIR. He attached several documents to that letter. The documents attached were not m the agency's 

EIR, were not considered by the agency in this enforcement matter, and do not appear relevant to this case. 

15 
governmental decisions and policies are formulated'"). This includes "protecting the 

'decisionmaking processes of government agencies.'" Wolfe at 773 {citing NLRB v. 

Sears, Roebuck & Co., 421 U.S. 132, 150,95S.Ct. 1504, 1516, 44 L.Ed.2d 29 (1975)). 

See also Jordan at 772-3 (stating that the exemption itself is intended to protect the 

agency decision-making process and encourage candid communication between agency 

officials during the decision-making process). This exemption "attaches to inter- and 

intra-agency communications that are part of the deliberative process." Jordan at 772. 

"Thus, the Supreme Court has limited the deliberative process privilege to materials 

which are both predecisional and deliberative." Wolfe at 773 {citing EPA v. Mink, 410 

U.S. 73, 88, 93 S.Ct. 827, 836, 35 L.Ed.2d 119 (1973)). 

The basis for the redacfion of the EIR was the FAA's assertion of the 5 U.S.C. 

§ 552(b)(5) exemption because the withheld materials were deliberative, pre-decisional 

materials, rendered by agency staff members in the course of reaching a final 

determination or position on a particular matter under agency consideration. The FAA 

releases EIRs to companies involved in civil penalty actions without a formal Freedom of 

Information Act ("FOIA") request, as it did in this case.'^ However, the FAA performs 

an analysis undeir FOIA to determine what is releasable prior to releasing any EIR. The 

redacted portions of the EIR constituted pre-decisional deliberative communications 

between agency employees regarding the regulations believed violated, possible agency 

'•' During the informal conference m this case. Dr. Selig inquired about the evidence compiled. The agency 

attorney handling the matter at the time, Laura Ponto, sent a copy of the file to Dr. Selig on October 21, 

2010, before the Complaint in this matter was filed. Dr. Selig has never requested the documents in the EIR 

through discovery. 

16 
actions, and other non-final steps in the agency's process. This falls squarely within the 

deliberative process exemption. ^^ 

4. The civil penalty imposed in this case is proper under FAA guidance and 

M & R Helicopters has provided limited information which might demonstrate an 

inability to pay the proposed penalty. 

The civil penalty in this matter was assessed in accordance with FAA Order 

2150.3B, .specifically, Appendix B - Table of Sancfions.'^ M & R Helicopters is 

classified as a Group IV air carrier or operator. Under 49 U.S.C. § 46301(a)(5)(A), 

M & R Helicopters is subject to a civil penalty not to exceed $ 11,000. FAA Order 

2150.3B delineates penalty ranges for different types of violations by different types of 

enfifies. In this case, FAA Order 2150.3B sets forth the following penalty ranges: 

Maximum - $4,400-$! 1,000; Moderate - $2,200-$4,399; and Minimum - $550-$2,199. 

Id. at B-4. For the Federal Aviation Regulations violated by M & R Helicopters,' FAA 

Order 2150.3B, Figure B-5-b(l) provides guidance that a maximum penalty should be 

levied. Id. atB-31. FAA Order 2150.3B states "that the middle of each recommended 

sanction range would be for a single violation without aggravating or mitigating factors." 

Id. at B-2. The middle of the maximum range for a Group IV air carrier or operator is 

$7,700 per violation. In this case, because M & R Helicopters' violations stem from the 

same omission, the FAA determined that based on the totality of the facts and 

'* While not precedent, in the case of/«the Matter ofMalco Products. Inc. Judge Yoder found that 

redacted portions of an EIR may be protected by the deliberative process exemption unless a party 

demonstrates a particularized need for the information that has been redacted. In the Matter ofMalco 

Products. Inc., FAA Docket No. CP02SO0015, at 3 (Apr. 24, 2003) (citing Bachman Pawn & Gun, FAA 

Docket No. CP94WP0166 (Order issued December 6, 1994)). 

'^ The relevant portions of Order 2150.3B have been provided m Attachment G. 

'^ The Complaint alleges violations of the following regulations: 14 C.F.R. § 135.251(a) and 14 C.F.R. § 

135.255(b). 

17 
circumstances a reduction of the penalty from a suggested amount of $15,400 to $5,400 

was warranted. 

Based on the limited financial documentation submitted by M & R Helicopters, 

Complainant finds that M & R Helicopters has evidenced some minimal indication of 

inability to pay the sanction as levied in the Complaint and may warrant some reduction 

1 % 

in the civil penalty amount. If M & R Helicopters provided more complete financial 

information, specifically its federal income tax returns including all schedules, M & R 

Helicopters' ability to absorb the civil penalty amount could be more fully explored. In 

any event, the record supports that M & R Helicopters committed the regulatory 

violations alleged in the Complaint and a finding of violation is warranted. 

[Signature Page Follows] 

" The Complaint was amended on December 10, 2010, to delete stale allegations and an appropriate 

adjustment to the penalty amount was made at that time bringing it down to the current $4,400 civil 

penalty. 

M & R Helicopters provided Permsylvania state income tax returns. M & R Helicopters has not provided 

any of its federal income tax returns or any of the associated schedules. 

18 
Respectfully submitted, 

Peter Lynch 

Assistant Chief Counsel 

for Enforcement 

By: _ 

Charles Raley, Attorney 

Enforcement Division, AGC-300 

Office of the Chief Counsel 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, DC 20591 

Phone: (202)267-3357 

Facsimile: (202)267-5106 

Email: charles.raley@faa.gov 

Dated: May 27, 2011 

19 
ATTACHMENT A 

[OPSECS A449] 
U.S. Department 

of Transportation 

Federal Aviation 

Administration 

Operations Specifications 

A449. AntidruE and AJcohoI Misuse Prevention Program 

b. 

HQ Control: 

HQ Revision: 

01/22/04 

000 

The certificate holder who operates under Title 14 Code of Federal Regulations (CFR) Part 135 

certifies that it will comply with the requirements of 14 CFR Part 121 Appendices I and J and 

49 CFR part 40 for its Antidrug and Alcohol Misuse Prevention Program. 

Antidrug and Alcohol Misuse Prevention Program records are maintained and available for inspection 

by the FAA's Drug Abatement Compliance and Enforcement Inspectors at the location listed in Table 1 

below; 

Address: 

Address: 

City: 

State: 

Zip code: 

Table 1 

Location of Antidrug and Alcohol Misuse 

Prevention Program Records: 

2045 Westgate Drive 

Bethlehem 

PA 

18017 

Telephone Number: 

(610)769-7000 

c. Limitations and Provisions. 

(1) Antidrug and Alcohol Misuse Prevention Program inspections and enforcement activity will be 

conducted exclusively by the Drug Abatement Division. All questions regarding this program 

should be directed to the Drug Abatement Division. 

(2) The certificate holder must implement its Antidrug and Alcohol Misuse Prevention Programs flilly 

in accordance with 14 CFR Part 121, Appendices I and J, and 49 CFR Part 40. 

(3) The certificate holder is responsible for ensuring that its contractors who perform safety-sensitive 

work for the certificate holder are subject to Antidrug and Alcohol Misuse Prevention Programs. 

(4) The certificate holder is responsible for updating this operations specification when any changes 

occur in the following: ' :' / • •• . _. ,, 

(a) Location or phone number where the Antidrug and Alcohol Misuse Prevention Records are 

kept (as listed in Table I above). • .. 

(b) If the certificate holder's number-of safety--sensitiYe employees goes to 50 and above, or falls 

below 50 safety-sensitive employees. " •'•'^' ^. . '• [' ". .."• 

(5) The certificate holder with 50 or more employees performing a safety-sensitive fimction on 

January 1 of the calendar year must submit an annual report to the Drug Abatement Division of the 

FAA. The certificate holder with fewer than 50 employees performing a safety-sensitive fimction 

on January 1 of any calendar year must submit an annual report upon request of the Administrator, 

as specified in the regulations. 

The certificate holder has fewer than 50 safety-sensitive employees. 

Print Date: 8/15/2005 A449-1 

M AND R HELICOPTERS LLC 

Certificate No.: MR3A020K 

FOR OFFICIAL USE ONLY 

Public avoilabjliiy to be determined under 5 USC 552 
U.S. Department 

of Transportation 

Federal Aviation Operations Specifications 

Administration 

1. Issued by the Federal Aviation Administration. 

2. TTiese Operations Specifications are approved by direction of the Administrator. 

ALOTTA, FRANK Principal Operations Inspector EA05 

3. Date Approval is effective: 2/4/04 Amendment Number: 0 

4. I hereby accept and receive the Operations Specifications in this paragraph. 

Selig, Michael B. Agent for Service Date: 2/4/04 

Print Date: 8/15/2005 A449-2 Certificate No.: MR3A020K 

M AND R HELICOPTERS LLC 

FOR OFFlClAi USE ONLY 

Public availability to be determined under 5 USC 552 
ATTACHMENT B 

[OPSPECS AOOl] 
U.S. Department 

erf Transportation 

Federal Aviation 

Administration 

Operations Specifications 

AODl. Issuance and Applicability HQ Control: 

HQ Revision: 

05/09/03 

02c 

These operations specifications are issued to M AND R HELICOPTERS LLC, whose principal base of 

operation is located at; 

Primary Business Address: 

2045 Westgate Drive 

Betlilchem, PA ISO!7 

Mailing Address: 

2045 Westgate Drive 

Bethlehem, PA 18107 

The holder of these operations specifications is the iiolder of Air Canier Certificate Number 

MR3A02QK and shall hereafter be referred to as the certificate holder. Tlie certificale holder is 

authorized to conduct: 

On Demand 

(135) 

operations in Common carriage pursuant lo 

Title ]4 Code of 

Federal Regulalions 

(CFR) Section 

119.25(b) - On and provided, at all times, the 

Demand HEL certificate holder has appropriate 

written economic authority issued by 

the Department of Transportation. 

The certificate holder shall conduct these kinds of operations in accordance with the specific 

authorizations, limitations, and procedures in these operations specifications and all appropriate Parts 

of the CFR. 

b. These operations specifications are effective as of [he "Date Approval is effective" listed in each 

paragraph and shall remain in effect as long as the certificate liolder continues to meet the requirements 

of Part 119 as specified for cerfification. 

c. The certificate holder is authorized to use only tlic business name which appears on tlie certificate to 

conduct tlie operarions described in subparagraph a. 

d. The certificate holder is authorized to conduct flights under 14 CFR Part 91 for crewmember training, 

maintenance tests, ferrying, re-positioning, and the carnage of company officials using the applicable 

authorizations in tliese operations specifications, witliout obtaining a Letter of Authorization, provided 

the flights are not conducted for compensation or hire and no charge of any kind is made for tlie 

conduct of the fiights. 

Print Date; 2/4/2004 AOOl-1 

M AND R HELICOPTERS LLC 

Certificate No.: MR3A020K: 
U.S. Department 

of Transportation 

Federal Aviation Operations Specifications 

Administration 

1. Issue^d by the Federal Aviation Administration. 

itions Specifications arc approved by direction of the Administrator. 

ALOTTA. FICANK Principal Operations Inspector EA05 

3. Date Approval is effective: 2/4/04 Ajnendment Number: 3 

4. I hereby accept and receive tlie Operations Specifications in this paragraph. 

Selig. Michael B. Agent for Service Date: 2/4/04 

Print Date: 2/4/2004 AODI-2 Certificate No.: MR3A020K 

M AND R HELICOPTERS LLC 
ATTACHMENT C 

[OPSPECS D085] 
U.S. Department 

of Transportation 

Federal Aviation 

Adminisbation 

Operations Specifications 

DOSS. Aircraft Listing HQ Control: 02/06/98 

HQ Revision: 02a 

a. The certificate holder is authorized to conduct operations under 14 CFR Part 135 using the aircraft 

identified on this operations specificatioa 

Registration No. Serial No. 

N98CM 4056 

Aircraft M/M/S 

BELL-206-B 

1. Issued by the Federal Aviation Administration. 

2. These Operations Specifications are approved by direction of the Administrator. 

Henninger, Gerald Principal Maintenance Inspector EA05 

3. Date Approval is effective: 12/20/04 Amendment Number: 2 

4. I hereby accept and receive the Operarions Specifications in this paragraph. 

Selig, Michael B. Agent for Service Date: 12/20/04 

Print Date: 8/15/2005 D085-1 

M AND R HELICOPTERS LLC 

FOi? OFFICIAL USE ONLY 

avGilability fo b e defeminsd under 5 USC 552 

Certificate No.: MR3A020K 
ATTACHMENT D 

[Letter of Interpretation] 
Westtaw, 

2006 WL 3792063 (D.O.T.) Page 1 

2006 WL 3792063 (D.O.T.) 

Department of Transportation (D.O.T.) 

Federal Aviation Administration 

*1 Legal Interpretation 

2006 

Fran DeJoseph 

Southern Jet Management, LLC 

1800 Airport Road 

Kennesaw, Georgia 30144 

Dear Mr. DeJoseph: 

In a letter dated October 24, 2005, you expressed disagreement with a letter of interpretation that you received 

fi-om our Drug Abatement Division and asked us three additional questions. We have noted your disagreement and 

now answer your three additional questions in the sequence you presented. 

1. If an [sic] FAR 135 au-craft had maintenance done by a mechanic that does not meet the Drug and Alcohol 

Requirements of FAR 135 and 121, what does the FAR 135 Certificate holder have to do before he can use that 

aircraft on a FAR 135 charter? 

Our answer: An aircraft that is listed on the operation specifications of a certificate holder conducting flights under 

Title 14, Code of Federal Regulations (14 CFR) Part 135 must be maintained under the certificate holder's maintenance program. That such an aircraft is owned and periodically operated under 14 CFR part 91 by a person other 

than the certificate holder does not lessen that obligation in any way. 14 CFR § 135.251(c) contemplates a situation 

in which an aircraft requires emergency maintenance and there are no maintenance providers subject to appendix I 

of part 121 at the airport. In that case, the certificate holder must provide written notification of the emergency maintenance within 10 days while retaining copies for at least two years. In addition, the certificate holder must also have 

the aircraft inspected when it is next at an airport where drug-tested persormel are available. Other than in the circumstance described in section 135.251fc). maintenance by persons not tested pursuant to appendix I of part 121 is 

prohibited on aircraft operated under part 135. 

If non-emergency maintenance was performed on the aircraft by a person not meeting the drug and alcohol testing 

requirements, it would be a violation of the regulations, which could result in penalties and require corrective actions, including the possible removal of the aircraft from the certificate holder's operations specifications. (See: 14 

CFR § ] 19.51") The primary maintenance inspector or principal operations inspector or both, as applicable, would 

determine vvhat remedial actions would be necessary in order for the airplane to return to part 135 sen'ice. Remedial 

actions may include a full conformity inspection. 

2. In the response from the Drug Abatement Division, they state, "The requirement to have an FAA-mandated 

drug and alcohol testing program applies to any individual who performs safety-sensitive fimctions on Parts 

© 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. 
2006 WL 3792063 (D.O.T.) Page 2 

121, 135, and 135.1(c) aircraft". Does that mean a pilot who flies an aircraft for an owner under FAR 91 has to 

meet the Drug and Alcohol Requirements of FAR 135 or 121 if that same aircraft is used FAR 135 charter? If 

not, why? 

Our answer. If that pilot to whom you refer also operates or is available to operate any flights under part 135 on 

behalf of the certificate holder then he or she must meet the applicable drug and alcohol testing requirements. (See: 

14 CFR $? 135.249-135.255). However, if that pilot performs no safety-sensitive ftinctions for the certificate holder 

in any capacity whatsoever then the drug and alcohol testing requirements do not apply. 

*2 We take this opportimity to point out that the term *'FAR 135 aircraft" is a misnomer as you use it above and may 

reflect a misimderstanding. We appreciate the opportunity to clarify. If an aircraft is listed on the operation specifications of a part 135 certificate holder, certain part 135 requirements, such as compliance with approved maintenance programs, apply continuously without interruption. 

On the other hand, the applicability of certain portions of part 135 regulations to a specific flight operation, such as 

those found in subparts B and D, depends upon whether a flight is conducted for compensation or hire. If a specific 

flight is not conducted for compensation or hire, (e.g. a ferry flight, positioning flight, or a flight conducted by the 

owner of the aircraft for his or her private use) then the flight may be conducted pursuant to part 91 operating rules. 

We add another clarification. If the owner of the aircraft elects to use the provisions of section 135.1(c) to operate 

imder part 91 operating rules, he or she would be required to comply with the drug and alcohol testing requirements 

of sections 135.249-135.255 and also section 135.353. 

3. If an [sic] FAR 135 aircraft had maintenance done by a mechanic that does not meet the drug and alcohol requirements of FAR 135 and 121, is that FAR 135 operator in violafion of FAR 135 and 121 if he does not fly? 

If yes, why? 

Absent the circumstances described in section 135.251(c), any such maintenance would be a violation. The violation 

would occur at the time such maintenance is performed and whether the aircraft is flown is not relevant. 

We trust that this answers your questions. Tliank you for your inquiry. 

Sincerely, 

Rebecca MacPherson 

Assistant Chief Counsel, Regulations 

2006 WL 3792063 (D.O.T.) 

END OF DOCUMENT 

2011 Thomson Reuters. No Claim to Orig. US Gov. Works. 
ATTACHMENT E 

[EIR Sections A and B] 
9/14/2009 12:40:17 PM 

ENFORCEMENT 

INVESTIGATIVE REPORT 

(Read Order 2150.3 for 

instructions) 

REPO 

NUMBER 

2009SO950434 

RELATED NUMBER 

ALLEGED VIOLATOR IDENTIFICATION 

1.NAME 

M AND R HELICOPTERS LLC 

TELEPHONE NUMBER (Include 

area code) 

610-769-7000 

5 FAA CEFfnFICATE NUMBER 

MR3A020K 

2. ADDRESS (Include zip code) 

2045 WESTGATE DRIVE, SUITE 205 , 

BETHLEHEM. PA 1 8017 

3. DATHOFBIRTH 

6. FAA CERTIFICATE TYPE 

33 

4 SEX 

MALE FEMALE 

7. AVIATION EMPLOYER 

AIRCRAFT, ENGINE, PROPELLER, COMPONENT OR APPLIANCE INVOLVED 

8. MAKE 9. MODEL 

10 IDENTIFICATION NUMBER 

11. OWNER 12. ADDRESS (Include zip code) 

ALLEGED VIOLATION 

13. DATE OCCURRED 

2007/06/08 

14. TIME 15. DAT^ KNOWN TO FAA 

2009/07/21 

16. REGION OF DISCOVERY 

EA 

17. LOCATION 

18. REGULATIONS BELIEVED VIOLATED 

RELATED DATA 

19. TYPE 

05 

20. SUB TYPE 

05 

21. CATEGORY 

22 

22. 

SOURCE 

33 

23.ACCIDEMT 

ASSOCIATED 

00 

24.SECURITY PROGRAM 

INVESTIGATING FIELD OFFICE RECOMMENDATION 

FOAM 2150-6 £A 

Fomi2150 Page 1 of 1 
SECTION B 

STATEMENT OF CASE 

Case Number: 2009SO950434 

M and R Helicopters, LLC is a Part 135 certificate holder, certificate number l\flR3A020K, 

issued on July 8, 2002. M and R Helicopters, LLC's A449 Operations Specifications 

paragraph shows an effective date of February 4, 2004. (lOP 1) 

On July 21 and 23, 2009, the Federal Aviation Administration (FAA) conducted an 

inspection of M and R Helicopters, LLC's drug and alcohol testing program. Based on 

the documentation and infomiation obtained during the inspection, a letter of 

investigation was issued on August 14, 2009, to M and R Helicopters, LLC. (lOP 2) All 

items in the letter of investigation will be closed with administration action except for a 

portion of item number 1, which is being addressed in this Enforcement Investigative 

Report, 

FOR OFFICIAL USE ONLY 

Public availability to be determined under 5 USC 552 
There were no records that Mr. Baker had been given a DOT pre-employment drug test 

such as a Federal Drug Testing Custody and Control Fonn or a verified negative drug 

test result. (lOP 11) There were no records to indicate that Mr. Baker had been placed 

in M and R Helicopters, LLC's Department of Transportation (DOT) pool of safetysensitive employees. <IOP 3) On July 21, 2009, documentation was obtained from the 

company's Third Party Administrator, NADE, which indicates that Dr. Selig is the only 

employee in M and R Helicopters, LLC's random drug and alcohol testing pool. (lOP 3) 

Mr. Baker performed maintenance duties for M and R Helicopters, LLC on November 2, 

2007, November 18, 2007, and July 24, 2008. (lOP 5) All of the work was perfomried on 

M and R Helicopters, LLC's Part 135 aircraft, number N98CM, which is listed on its 

Operations Specifications. (lOP 4) There were no records to indicate Mr. Baker's date of 

hire such as personnel records, payroll records, employee records, 1-9 forms, or 

contractual agreement 

FOR OFFICIAL USE ONLY 

Public availability to be determined under 5 USC 552 
II. Factors Affecting Sanction 

FOR OFFICIAL USE ONLY 

Public availability to be determined under 5 USC 552 
FOR OFFICIAL USE ONLY 

Public availability to be determined under 5 USC 552 
111. other Infonmation 

FOR OFFICIAL USE ONLY 

Public availability to be determined under 5 USC 552 
FOR OFFICIAL USE ONLY 

Public availability to be determined under 5 USC 552 
AAM 800-003 F5 
DRUG ABATEMENT DIVISION 

ENFORCEMENT DECISION 

AAM 800-003 F5 
DRUG ABATEMENT DIVISION 

AAM 800-003 F5 
ATTACHMENT F 

[FAA Form 2150-5] 
ENFORCEMENT INVESTIGATIVE REPORT 

(Read Order 2150.3 for instructions) 

REPORT 

NUMBER RELATED NUMBER 

ALLEGED VIOLATOR IDENTIFICATION 

1. Name 2. ADDRESS ^/nc/ude Zip codej 

TELEPHONE NUMBER (Include aree code) 3. DATE OF BIRTH •fSEX 

I—I MALE I—I FEMALE 

5 FAA CERTIFICATE NUMBER 6. FAA CERTIFICATE TYPE 7. AVIATION EMPLOYER 

AIRCRAFT, ENGINE. PROPELLER, COMPONENT OR APPLIANCE INVOLVED 

8. MAKE 9. MODEL 10 IDENTIFICATION NUMBER 

11. OWNER 12. ADDRESS (include zip code) 

ALLEGED VIOLATION 

13. DATE OCCURRED 1-1. TIME 15. DATE KNOWN TO FAA 16. REGION OF DISCOVERY 

17. LOCATION 

18. REGULATIONS BELIEVED VIOLATED 

RELATED DATA 

19. TYPE 20. SUB TYPE 21. CATEGORY 22. SOURCE 

n 

23. ACCIDENT 

ASSOCIATED 

D 

24.SECUR1TY PROGRAM 

D D In Di n Di n ni n nl n DI D DI D 

INVESTIGATING FIELD OFFICE RECOMMENDATION 

26. TYPE ACTION 26. SANCTION REPORTING INSPECTOR (Typedname) 

27. DATE 28. INVESTIGATING 

OFFICE 

CHIEF (Typed name and signature} 

REGIONAL DIVISION REVIEW 

29. REGULATIONS BELIEVED VIOLATED 30. RECOMMENDED TYPE ACTION 

31 RECOMMENDED SANCTION 

32. DATE 33. REGION TYPED NAME/TITLE/SIGNATURE OF APPROVING OFFICIAL 

FORM 2150-5 EA 

Revised 9/5/2002 
ATTACHMENT G 

[Order 2150.3B] 
10/01/07 2150.3B 

Appendix B 

Table of Sanctions 

All Enforcement Programs 

Except Hazardous Materials 

Part One - Abbreviations and Definitions 

1. Applicability. This table of sanctions applies to violations that occurred on or after 

October 1, 2007. For violations occurring before October 1, 2007, FAA enforcement personnel 

apply the sanction guidance principles in FAA Order 2150.3A using up to the statutory 

maximum sanction amount in effect at the time of the violation. 

2. Abbreviations. The following abbreviations are used in this Table: 

APIS means approved production inspection system 

^ ^ means airworthiness 

AWC means airworthiness certificate 

BTS means Under Secretary for Border and Transportation Security 

lA means inspection authorization 

LE means law enforcement 

PC means production certificate 

STC means supplemental type certificate 

TC means type certificate 

TFR means Temporary Flight Restriction 

TSA means Transportation Security Administration 

3. Definitions: 

a. A continuing violation arises when a specific violation occurs over more than one day 

or over more than one flight. It also may involve a violation that is ongoing,, for example, an 

ongoing refusal to provide required records to the FAA for inspection. Punitive sanctions are 

appropriate for continuing violations that are not currently ongoing. Sanction guidance for 

these violations is set forth in paragraphs 6 and 7 {multiple acts or multiple violations) of 

chapter 7. A combination of punitive and remedial sanctions is appropriate when continuing 

violations are ongoing. 

b. Violation committed by a small business concern. Section 503 of Vision 100—Century 

of Aviation Reauthorization Act (CARA) amended 49 U.S.C. § 46301 to change the civil 

penalty amounts the FAA may seek for violations that occur on or after December 12, 2003; 

the law sets different limits on the civil penalties the FAA may seek for violations by small 

business concerns, as opposed to violations by other entities. Vision 100 CARA gives small 

business concern the same meaning as in the Small Business Act (15 U.S.C. § 632). Section 

632 defines small business concern as an enterprise "which is independently owned and 

operated and which is not dominant in its field of operation." The Small Business 

Administration regulations implement the Small Business Act and define business concern as 

B-1 
10/01/07 2150.38 

"a business entity organized for profit, with a place of business located in the U.S., and which 

operates primarily within the U.S. or which makes a significant contribution to the U.S. 

economy through payment of taxes or use of American products, materials or labor." 13 

C.F.R. § 121.105. The SBA regulations further define small business concern in tables, 

describing each kind of entity by its economic activity or industry, and listing the limit for 

small by annual receipts or, more commonly, number of employees. (The size limits generally 

are established under the North American Industry Classification System (NAICS).) For the 

complete list, see 13 C.F.R. § 121.201 or the SBA's website at www.sba.aov. Thus, if a person 

meets the definition of business concern and has annual receipts or the number of employees 

within the applicable SBA limit, it is a small business concern, and the FAA will determine the 

civil penalty using the applicable range. Limits for common aviation entities follow (in 

numbers of employees, unless otherwise noted). 

Manufacturing 

Aircraft- 1,500 employees 

Aircraft engine and part - 1,000 employees 

Other aircraft part and equipment - 1,000 employees 

Air transportation 

Scheduled passenger- 1,500 employees 

Scheduled freight- 1,500employees 

Nonscheduled passenger - 1,500 employees 

Nonscheduled offshore marine passenger - $25.5 million annual receipts 

Nonscheduled freight- 1,500 employees 

Nonscheduled offshore marine freight - $25.5 million annual receipts 

Other nonscheduled - $6.5 million annual receipts 

Support activities - $6.5 million annual receipts 

Flight Training - $23.5 million annual receipts 

Airport operations 

Airport operator, organized for profit - $6.5 million annual receipts 

Other operations, excluding air traffic control - $6.5 million annual receipts 

Note that the following guidance uses large business concern for some civil penalty ranges. 

That is not a statutory or regulatory term for purposes of FAA enforcement. It includes each 

business concern that exceeds the maximum limit for small business concern, as well as any 

other entity that does not meet the definition of "small business concern." 

c. Civil Penalty Ranges. For the purpose of this table, when civil penalty action is 

recommended and described as Minimum, Moderate, or Maximum, the penalty ranges are 

defined in subparagraphs (1) through (9) of this paragraph. Note that the middle of each 

recommended sanction range would be for a single violation without aggravating or mitigating 

factors. 

B-2 
10/01/07 2150.3B 

(1) VIOLATION COMMITTED BY U.S. AIR CARRIERS OR U.S. COMMERCIAL 

OPERATOR. 

CLASSIFICATION OF AIR CARRJER AND OPERATOR 

GROUP I - Each air carrier operating under part 121 or part 135, with an annual operating 

revenue of $100,000,000 or more. Operating revenue is determined by reference to DOT's 

"Air Carrier Industry Scheduled Service Traffic Statistics Quarterly." See 

http://ostpxweb.dot.gov/aviation/index.html, and click on "Airline Financial Review." 

GROUP II - Each air carrier or commercial operator operating under part 121 with an annual 

operating revenue of less than $100,000,000, or under part 135 with an annual operating 

revenue of less than $100,000,000, if the 135 operator has 50 or more pilots and 25 or more 

aircraft on its operations specifications. Operating revenue is determined by reference to 

DOT'S "Air Carrier Industry Scheduled Service Traffic Statistics Quarterly." 

GROUP III - Each air carrier or commercial operator operating under part 135 with 6 to 49 

pilots or 6 to 24 aircraft. 

GROUP IV - Each air carrier or commercial operator operating under part 135 with no more 

than 5 pilots and no more than 5 aircraft. 

GROUP I - large business concern 

Maximum $ 18,750-$25,000 

Moderate $ 10,000-$ 18,749 

Minimum $2,000-$9,999 

GROUP I - small business concern (for violations covered under 49 U.S.C. 

§ 46301(a)(5)(A)): 

Maximum $8,250-$l 1,000 

Moderate $4,400-$8,249 

Minimum $l,100-$4,399 

GROUP I - small business concern (for violations covered under 49 U.S.C. § 46301(a)(1)(A) 

or (B) but not under 49 U.S.C. § 46301(a)(5)(A)): 

Maximum $850-$ 1,100 

Moderate $650-$849 

Minimum $500 $649 

GROUP II - large business concern: 

B-3 
10/01/07 2150.3B 

Maximum $16,250-$25,000 

Moderate $8,750-$ 16,249 

Minimum $l,850-$8,749 

GROUP II - small business concern (for violations covered under 49 U.S.C. § 46301(a)(5)(A)): 

Maximum $8,250-$l 1,000 

Moderate $3,850-$8,249 

Minimum $935-$3,849 

GROUP II -small business concern (for violations covered under 49 U.S.C. § 46301(a)(1)(A) 

or (B) but not under 49 U.S.C. § 46301(a)(5)(A)): 

Maximum $750-$l,100 

Moderate $450-$ 749 

Minimum $250 $ 449 

GROUP III -for violations covered under 49 U.S.C. § 46301(a)(5)(A): 

Maximum $7,150-$ 11,000 

Moderate $3,300-$7,149 

Minimum $825-$3,299 

GROUP III - for violafions covered under 49 U.S.C. § 46301(a)(1)(A) or (B) but not under 49 

U.S.C. § 46301(a)(5)(A): 

Maximum $650-$ 1,100 

Moderate $400-$ 649 

Minimum $150-$ 399 

GROUP IV -for violations covered under 49 U.S.C. § 46301 (a)(5)(A): 

Maximum $4,400-$ 11,000 

Moderate $2,200-$4,399 

Minimum $550-$2,199 

GROUP IV - for violations covered under 49 U.S.C. § 46301(a)(1)(A) or (B) but not under 49 

U.S.C. § 46301(a)(5)(A): 

Maximum $500-$l,I00 

Moderate $300-$499 

B-4 
10/01/07 2150.3B 

Minimum $100-$299 

(2) VIOLATION COMMITTED BY PART 129 OPERATOR 

Maximum $18,750-$25,000 

Moderate $10,000-$ 18,749 

Minimum $2,000-$9,999 

(3) VIOLATION COMMITTED BY PART 125 OPERATOR. 

Large Business Concern: 

Maximum $ 16,250-$25,000 

Moderate $8,750-$ 16,249 

Minimum $l,850-$8,749 

Small Business Concern (for violations covered under 49 U.S.C. § 46301(a)(5)(A)): 

Maximum $8,250-$l 1,000 

Moderate $3,850-$8,249 

Minimum $935-$3,849 

Small Business Concern (for violations covered under 49 U.S.C. § 46301(a)(1)(A) or (B) but 

not under 49 U.S.C. § 46301(a)(5)(A)): 

Maximum $750-$l,100 

Moderate $450-$749 

Minimum $250 $449 

(4) VIOLATION COMMITTED BY AIR AGENCY (INCLUDING REPAIR STATION). 

Large Business Concern: 

Maximum $16,250-$25,000 

Moderate $8,750-$ 16,249 

Minimum $],850-$8,749 

Small Business Concern (for violafions covered under 49 U.S.C. § 46301(a)(5)(A)): 

Maximum $7,150-$ 11,000 

Moderate $3,850-$7,149 

Minimum $935-$3,849 

B-5 
10/01/07 2150.38 

Small Business Concern (for violafions covered under 49 U.S.C. § 46301(a)(1)(A) or (B) but 

not under 49 U.S.C. § 46301(a)(5)(A)): 

Maximum $750-$!,100 

Moderate $450-$749 

Minimum $250 $449 

(5) VIOLATION COMMITTED BY AIRPORT OPERATOR. 

Large Business Concern: 

Maximum $18,750-525,000 

Moderate $10,000-$18,749 

Minimum $2,000-$9,999 

Small Business Concern (for violations covered under 49 U.S.C. § 46301(a)(5)(A)): 

Maximum $8,250-$ 11,000 

Moderate $4,400-$8,249 

Minimum $l,100-$4,399 

Small Business Concern (for violations covered under 49 U.S.C. § 46301(a)(1)(A) or (B) but 

not under 49 U.S.C. § 46301(a)(5)(A)): 

Maximum $850-$ 1,100 

Moderate $650-$849 

Minimum $500 $649 

(6) LARGE BUSINESS CONCERN - DOES NOT HOLD CERTIFICATE 

Maximum $I8,750-$25,000 

Moderate $ 10,000-$ 18,749 

Minimum $2,000-$9,999 

(7) SMALL BUSINESS CONCERN - DOES NOT HOLD CERTIFICATE 

For violations covered under 49 U.S.C. § 46301(a)(5)(A): 

Maximum $4,400-$ 11,000 

Moderate $2,200-$4,399 

Minimum $550-$2,199 

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For violations covered under 49 U.S.C. § 46301(a)(1)(A) or (B) but not under 49 

U.S.C. § 46301(a)(5)(A): 

Maximum $500-$ 1,100 

Moderate $300-$499 

Minimum $100-$299 

(8) VIOLATION RELATING TO THE TRANSPORTATION OF A HAZARDOUS 

MATEIUAL (14 CFR). THE REGISTRATION OR RECORDATION OF AN 

AIRCRAFT NOT USED TO PROVIDE AIR TRANSPORTATION, 

THF. LIMITATION ON THE CONSTRUCTION OR ESTABLISHMENT OF A 

LANDFILL, OR THE SAFE DISPOSAL OF A LIFE-LIMITED AIRCRAFT PART. 

Large Business Concern (if entity is not within a more specific category, for example. 

Group I Air Carrier or Operator): 

Maximum $16,250-$25,000 

Moderate $8,750-$ 16,249 

Minimum $1,850-58,749 

Small Business Concern (if not within a more specific category for example, Group II 

Air Carrier or Operator) or Individual: 

For violations covered under 49 U.S.C. § 46301(a)(5)(A): 

Maximum $4,400-$! 1,000 

Moderate $2,200-$4,399 

Minimum $550-$2,199 

For violations covered under 49 U.S.C. § 46301(a)(1)(A) or (B) but not under 49 

U.S.C. § 46301(a)(5)(A): 

Maximum $500-$l,100 

Moderate $300-$499 

Minimum $100-$299 

(9) OTHER VIOLATION COMMITTED BY AN INDIVIDUAL. 

AIRNIAN SERVING AS AN AIRMAN - INDIVIDUAL SERVING IN CAPACITY OF AN 

AIRMAN. ALL VIOLATIONS EXCEPT THOSE LISTED IN (8). 

Maximum $850-$ 1,100 

8-7 
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Moderate $650-$849 

Minimum $500-$649 

OTHER INDIVIDUAL - NOT SERVING IN CAPACITY OF AIRMAN. 

For violations covered under 49 U.S.C. § 4630Ha)(5)(A): 

Maximum $4,400-$ 11,000 

Moderate $2,200-$4,399 

Minimum $550-$2,I99 

For violations covered under 49 U.S.C. § 46301(a)(1)(A) or (B) but not under 49 

U.S.C. § 46301(a)(5)(A): 

Maximum $500-$ 1,100 

Moderate $300-$499 

Minimum $100-$299 

(10) ENGINEERING AND MANUFACTURING VIOLATIONS. 

Large Business Concern: 

Maximum $18,750-$25,000 

Moderate $ 10,000-$ 18,749 

Minimum $2,000-$9,999 

Small Business Concern or Individual (for violations covered under 49 U.S.C. § 

46301(a)(5)(A): 

Maximum $8,250-$l 1,000 

Moderate $4,400-$8,249 

Minimum $I,I00-$4,399 

Small Business Concern or Individual (for violafions covered under 49 U.S.C. § 

46301(a)(1)(A) or (B) but not under 49 U.S.C. § 46301(a)(5)(A): 

Maximum $850-$I,l00 

Moderate $650-$849 

Minimum $500 $649 

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d. Pending compliance or corrective action; iniunctive relief. For many kinds of violations, 

there may be circumstances where the FAA should not allow the offending entity to continue to 

operate or to confinue in business. Examples include a certificate holder that does not allow an 

FAA inspector to inspect the holder's operation or facilities, or an unapproved manufacturer 

that produces aircraft parts in violation of 14 C.F.R. § 21.303. In that circumstance, suspension 

of an entity's certificate or other approval, pending compliance or corrective action, or 

injunctive relief against an entity that does not hold an FAA approval, would be appropriate. 

In egregious circumstances revocation of the entity's certificate or other approval may be 

warranted. Such action or relief may be considered in addifion to the assessment of a civil 

penalty as recommended in the following tables. 

Furthermore, amendment or modification of a certificate or approval may be appropriate in the 

circumstance where a definitive part of the offending entity's operation can be safely excluded 

from the operational approval. An example is an approved aircraft parts manufacturer that 

makes multiple kinds of parts, but has quality control problems for only one kind of part. Such 

action may be considered in addition to the assessment of a civil penalty as recommended in 

the following tables. 

Part Two - Sanction Guidance Tables 

Index 

1. U.S. Air Carriers, U.S. Commercial Operators, Part 125 Operators, and Part 129 

Operators. 

Fig. B-l-a. Maintenance Manual 

Fig. B-l-b. A/W Directive 

Fig. B-l-c. Operations Specifications 

Fig. B-l-d. Facilities and Equipment 

Fig. B-l-e. Maintenance and Inspecfion Organization 

Fig. B-l-f. Training Program 

Fig. B-l-g. Maintenance or Aircraft Paperwork 

Fig. B-l-h. Performance of Maintenance 

Fig.B-I-i. SFAR36 

Fig. B-l-j. Records and Reports 

Fig. B-l-k. Dispatch and Flight Release Rules 

Fig. B-1-1. Operation of unairworthy aircraft 

Fig. B-l-m. Provisions specific to passenger-carrying 

Fig. B-l-n. Provisions specific to flight deck crew 

Fig. B-l-o. Other provisions 

Fig. B-1-p. Operations at airports requiring slots 

2. Personnel of Air Carriers, Commercial Operators, and Part 125 Operators. 

Fig. B-2-a. Maintenance, including inspection 

Fig. B-2-b. Inspection 

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Fig. B-4-C. Drug convictions - no falsification involved 

cont. 

(2) Multiple convictions for simple possession* 

(3) Conviction(s) for other than simple possession* 

Civil Penalty Certificate 

Action 

120-day 

Suspension 

to 

Revocation 

of all part 61, 

63, or 65 

certificates 

Revocation 

of all part 61, 

63,or 65 

certificates 

*It may be appropriate, in the exercise of prosecutorial discretion, not to take enforcement action when 

a conviction is several years old when discovered by the FAA and there is evidence that the certificate 

holder has been rehabilitated such that the individual can be expected to conform his or her conduct to 

safety requirements. 

5. DRUG AND ALCOHOL TESTING VIOLATIONS. 

Fig. B-5-a. Drug and Alcohol Testing Violations 

(1) Failure of an air carrier operating under part 121 or part 

135 operator to obtain an operations specification 

(2) Failure of a part 145 operator (that opts to have its own 

drug program and AMPP) to obtain an operations 

specification 

(3) Failure of a Section 135.1(c) ornon-FAA air traffic 

control facility to submit a registration to the FAA 

(4) Failure of a contractor (that opts to have its own drug and 

alcohol programs) to submit a registration to the FAA 

(5) Failure to implement or maintain continuous coverage in 

an FAA antidrug program and/or AMPP in accordance with 

Appendices i and/or J 

Civil Penalty 

Moderate 

Moderate 

Moderate 

Moderate 

Maximum 

Certificate 

Action 

Indefinite 

Suspension 

pending 

compliance 

or 

Revocation 

Fig. B-5-b. Coverage 

(1) Failure to include a safety-sensitive employee in FAA 

mandated drug and alcohol testing programs 

(2) Permitting a contractor employee to perform a function 

listed in Appendix I or J who is not covered under an FAAmandated antidrug and/or alcohol misuse prevention program 

Civil Penalty 

Maximum 

Maximum 

Certificate 

Action 

B-31 
Certificate of Service 

I hereby certify that on this date I have sent by U.S. mail, postage prepaid, 

certified return-receipt and by facsimile a copy of Complainant's Pre-Hearing Brief 7^ the 

Matter ofM&R Helicopter, Docket No. CPlOSOOOllO, FAA Case no. 2009SO950434, 

addressed to: 

The Honorable Ronnie A. Yoder 

Chief AdministraUve Law Judge 

U.S, Department of Transportation, M-20 

East Bldg. Ground Floor, Room E12-320 

1200 New Jersey Avenue, S.E. 

Washington, DC 20590 

Facsimile: 202-366-7536 

In addition, I hereby certify that on this date I have sent by the U.S. mail, postage 

prepaid, certified return-receipt one copy of the foregoing document to: 

Dr. Michael B. Selig 

President 

M & R Helicopters, LLC 

2045 Westgate Dr., Suite 205 

Bethlehem, PA 18017 

In addition, I hereby certify that on this date I have sent by the U.S. mail, postage 

prepaid, certified return-receipt, the original and one copy of the foregoing document to: 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, D.C. 20591 

Attn: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building - Suite 2W1000 

Dated: May 27, 2011