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Before the U.S. Department of Transportation 

Federal Aviation Administration 

RECEIVED 

MAY -3 2012 

HEARING DOCKET 

In the matter of 

M & R HELICOPTER 

Docket No. CPIOSOOOll 

FAA Case No. 200980950434 _._ 

) 

) 

) 

) 

) 

= -. Judge Richard C Goodwin 1 

) Hearing Date: January 26-27, 20 J 2 .c 

----------~---------) 1J 

COMPLAINANT'S POST -HEARING REBUTTAL RRJEF 

Pursuant to the June 30) 2011 Amended Procedural Order and the February 21, 20 I 2 

Scheduling Order, Complainant files this Post-Hearing Rebuttal Brief. 

At the threshold, it is critical to note that Respondent only pres~:nted one witness, 

Mr. Baker, and seven exhibits were admitted into evidence. Although Respondent provided a 

lengthy opening statement that was fittered with unsupported arguments, he never took the stand 

at the hearing, thereby eliminating any opportunity for cross-examination. 

L Respondent Had an Active Part 119 Certificate With Operations Specifications 

Authorizing Part 135 Operations. 

Respondent is, and at the time oft.hc violations was, the holder of Air Carrier Certificate 

No.JV1R3A020K, issued under 14 C.F.R. part 119 and authorized to conduct operations under 

14 C.F.R. part 135 ofthe FARs. (Ex.h. A-1; Tr: 164-5: 18-5; 165: 21-22; 168: 9-15; 333-4: 14-

20). Respondent claims that it was non-operational at the time of the violations and had not been 

in operation up through the date of his filing ofhis reply brief. (Rcp't's Reply Br. at 6-7). To 

support this, Respondent states that "the operational specifications and compliance statements 

required updating, current with confirmatory signatures," yet he provides no reference to any 

regulation, statute, teStimony or evidence in the record to support that proposition. ld. 

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Additionally, the evidence in Lhe record establishes that Respondent retained its part 119 

certificate authorizing it to operate under part 135. (Tr. 331: 5-20; 334; 4-20). 

Respondent also asserts that the company "underwent a corporation and name change 

making the operations specifications invalid." Id. In support of this assertion, respondent points 

to Exhibit R-7, which is merely a Pennsylvania corporate name change document and has 

absolutely nothing to do with whether the operations specifications were active or not (Tr. 331: 

5 -16). Respondent further states that the "FDSO [sic] instructed Respondent to do no part 13 5 

flights until the Op Specs w<.:rc undated [sic] to reflect changes." ld. This statement is compktdy 

without support in the record. 

Respondent also claims the he withdrew from "all part 135 operations due to human 

factors beyond his control,'' however, the record clearly supports the fact that Respondent never 

surrendered its certificate and that Respondent still had an active certificate. (Tr. 334; I 0-20). 

The fact is, as fully supported by the record, Respondent's operations specifications were active 

at the time of the violation, at the time ofthe inspection and continued to be active as of 

November 29, 201 I. (Tr. 164-5: 1 8-5; 165: 21-22; 168: 9-15; 333-4: 14-20). 

1. FAA guidance is directly applicable to Respondent's violations. 

Respondent dismisses out of hand th~ DeJoseph Letter oflnterpretation but this 

intt:rpretation is clearly applicable to the case at hand. See FAA Letter oflnterpretarion issued by 

Rebecca MacPherson, Assistant Chief Counsel, Regulations, to Fran DeJoseph (2006 WL 

3792063 (D.O.T.)). Exh. A.:.l3. In this letter of interpretation, the FAA directly addressed the 

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

certificate with operation specifications authorizing operations under part I 35. Td. Jn this letter, 

the FAA made it clear that aircraft listed on operations specifications issued under 14 C.F.R part 

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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 is subject to the drug and alcohol 

testing requirements ofpartl21. Id. To illustrate, the FAA noted that 14 C.P.R.§ l35.25l(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. § l35.25l(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 drug-testing regulations perfonn the inspection. ld The FAA then 

made it clear that "[o]ther than in the circumstances described in section 135.25l(c), 

. maintenance by persons not tested pursuant to appendix I of part 121 is prohibited on aircraft 

operated umh.::r part 135."1 ld. 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 ofJnterpretation, citing 14 C.P.R.§ ll9.5 I. 

The DeJoseph Letter of Interpretation also addressed the issues surrounding what 

regulations must be adhered to when a part 11? certificate holder with operations specifications 

authorizing it to conduct operations under part 135 is not operating under part 135, but under part 

9L The FAA acknowledged that when conducting part 91 operations, flights may be conducted 

under part 91 operating rules, but "filf an aircraft is listed on the operation specifications of a 

part 135 certificate holder, certain part 135 requirements, such as compliance with approved 

1 ResJ')ondent has not produced any evidence to support that it falls under the exception in section 135.25I(c). 

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maintenance programs, apply continuously without interruption." DeJoseph Letter of 

Interpretation. Even if an aircraft listed on a part 135 certificate holder's operations 

specifications 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 

1 35.253." ld. Any maintenance performed on an aircraft that is listed on apart 135 operator's 

operations specifications that is "done by a mechanic that does not meet the drug and alcohol 

requirements ofF AR 135 and 121" is a violation, and such "violation would occur at the time 

such maintenance is performed." J.4. Jn 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 pan 135 is required to maintain the aircraft listed in the holder's operations specifications 

in accordance with part 135. (Tr. 327-8: 18-3). 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. (Tr. 328: 4-7; 328-30: 16-

8). Respondent is the holder of a part 119 certificate with operations sp~;;cifications authori:ling 

operations under part 135 ami is therefore required to maintain its aircraft in accordance with 

part 135. (.Rxh. A-1; Tr. 328: 16-20). Therefore, Respondent was required.to have any 

maintenance performed on an aircraft listed in its operations specifications be done by an 

individual that meets the drug and alcohol testing requiremenls of parts 135 and 121. (Tr. 329-

30: 21-8). R<.:spondcnt had maintenance performed on its aircraft by an individual that did not 

meet those requirements. 

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2, FAA v. David E. Everson. d/b/a/, North Valley Helicopters is not applicable in 

this matter. 2 

Respondent raises the issue ofwhether or not he had an active part 119 certificate with 

operations specifications authorizing it to conduct operations under part 135, citing Everson for 

the proposition that Respondent's certificate wa<> not active. (Resp't's Post-Hearing Br. at 7). 

Respondent errs in citing this case because the holding in Everson is not applicable here. 

a. Respondent Had Commenced Operating Under Part 135. 

In Everson, Judge Kolko 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. "

3 Everson at 2. In that case, the 14 C.F .R. part 119 certificate holder with 

operations specifications authorizing ii to conduct opt:rations under part 135 was cited for 

numerous violations including failing to implement drug and alcohol testing programs and to 

perform such testing on its safety-sensitive employees. Id. However, the Respondent in Everson 

had never commenced part 135 operations. 

In Everson, the company was not required to t'ollow 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 cotnmenced part 135 operations and therefore did not need to 

implement its drug testing prO!,'l"am. 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 

2 FAA v. David E. Eve..r:sQo. d/bt~h~Ortb Valley Helicopters, FAA Docket No. CP99WA0002 (2000). 3 The Ev<.'TSon case is not precedent fDr the purrose~ of this maner. The FAA chose: not to appeal Judge Kolko"s 

initial decision and the FA A Decisionmaker did not make a finding as to Judge Kolko's decision. As the inilial 

decision of the ALI was not appealed to the fAA Decisionmak~:r, it is not considered precedent in this matter under 

14 C.f'.R. § 13.2320)(3). 

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under part 135 must "[i]mplement an FAA antidrug program no later than the date you start 

operations, and meet the requirements of this appendix." 

Tn this case, Respondent commenced 14 C.F.R. part 135 operations in or prior to 2005 

and continues to have an active 14 CF.R. part 119 certificate with operations specifications 

authorizing it to conduct operations under part 135. (Exh. A-5). Respondent certified in its 

operations specifications 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." (Exh. A-2). Respondcnl, as a part 14 C.F.R. part 1 I 9 certificate holder 

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

under 14 C.F .R. purl 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 LIn addition, under 14 

C.F.R. part 121, Appendix J, § VII.B.l, Respondent was required to implement an Al\1PP 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 preventi-ve maintenance 

duties. See 14 C.F.R. part 121, Appendix I,§ V.B (2006), 14 C.P.R. part121, Appendix J, 

§ JILC (2006). 

Respondent had commenced part 135 operations, which triggered the requirement to 

comply with the FAA drug and alcohol testing regulations. Respondent also certified that it 

would comply with the drug and alcohol testing regulations when it received its operations· 

specifications. Appendices I and J both required that Respondent perform random dmg and 

alcohol testing on its safety-sensitive employees. Mr. Baker performed aircraft maintenance 

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and/or preventive maintenance on Respondent's aircraft for Respondent and therefore should 

have been included in Respondent's random drug and alcohol testing pools or in the random 

drug and alcohol testing pools of a company contracted by Respondent to perfonn aircraft 

maintenance and/or preventive maintenance on Respondent's aircraft. 

b. 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 E...Y.erson, Judge Kolko found that the respondent, who had yet to commence operating 

as a part 135 certificate bolder, had no obligation to adhere to the drug testing requirements 

found in 14 C.f.R. parts 135 and 121. Everson at2. Judge Kolko based his decision in large part 

on language found in 14 C.F.R. § 135.241 that limits lhe applicability ofboth 14 C.F:R. 

§§ 135.251 and 135.255. However, the language found in 14 C.F.R. §§ 135.251 and 135.255 

shows thatthe applicability of 14 C.P.R.§§ 135.251 and 135.255 was contained within the 

sections themselves.4 

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

subpart [Subpart E] prescribes ibc.: flight crcwmember requirements for operations under this 

subpart." Everson at 2. Of note is that 14 C.F.R. § 135.24 I said that tl1c subpart applied to flighT 

crew members (emphasis added) who are conducting operations under Subpart E. lt is true that i:l 

4 Jn the EAJA case held aficr the ruling in Everson, the FAA Decisionmaker did not make a determination as to 

whether Judge Kolko's decision wa<> appropriate .. s~~ In the Matter of: David E. Everson. dlb/a North Valley 

!._kliC()P.~Th Inc., FAA Order No. 2004·5, Docket No. CPOOWAOOOI (EAJA) (Scp. 22, 2004). However, the FAA 

Dccisionmaker did find there: wc:n: n:~unablc BTgumcnts made that the regulations in question were applicable, 

noting that the regulations citicd in ~verson did refer to "each certificate holder" and therefore C()u]d be interpreted 

to apply to any cenifica1e holder regardless of the operations flown. Jd. In addition, the FAA Deeisionmaker noted 

that language in the preamble to the final rule for alcohol testing promulgated in 2004 stated that "the: rule would 

include ''ess¢ntially the same classes of employers as are oov~rod by the anti-drug rule: 14 C.F.R. part Ul 

certificate holders, 14 CFR part 135 certificate holders .... "' lp. (citjryg 59 Fed. Reg. 7380, 7381 (February 15_, 

1994). The FAA Dcci~ionmaker also notes that th¢ "FAA's guidelines for implementing anti-drug programs stated 

that: "LEJvery single-person aviation business [under Part I35J ... must be pan of a drug program approved by the 

FAA.'" I d. ( citi.ug Office of Aviation Medicine, Drug Abatement Branch, "Guidelines for Single-Person Aviation 

Businesses: Implementing the f<'AA Ami-Drug Program," p. 3 (Feb. 1990). 

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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.P.R. 

§§ 135.251 and 135.255 fell within Subpart Eat the time of Respondent's violations, the 

language in these sections indicated that they cov~.:rcd more than flight crewmembers. The plain 

language of§ I 35.251 stated that "[ e ]ach certificate holder or operator shall test each of it<; 

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

with that appendix.',s 14 C.F.R. § 135.251 (1997) (emphasis added). The functions listed in 

appendix 1 included flight crewrnembcr 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 control duties. 14 C.P.R. part 121, 

Appendix I, III (1997). With regard to alcohol testing, 14 C.F.R. § 135.255 stated that, 

[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.P.R. § 135.255 (1997) (emphasis added). 

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

person who performs, either directly or by contract, a satety·sensitive function listed in section IT 

of this appendix for an employer .... " The functions listed in section II of Appendix J included 

flight cr~.:wmember duties, flight attendant duties, flight instruction duties, aircraft dispatcher 

duties, aircraft maintenance or preventive maintenance dulks, 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.P.R. §§ 135.251 and 135.255 were contained within Subpart E, the 

> 14 C.F.R. §§ 251 uml25S, as well as 14 C.P.R. part 121, Appendix I,§ III, 14 C.f.R. part 17.1, Appendix J, § I.D, 

md 14 C.F.R. part 121, Aprendix J, §II remsined unchanged until the drug and alcohol regulations were recodified 

to 14 C.F .R. part 120 in 2009. 

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applicability of these sections covered a greater scope of individuals than the flight 

crewmembers contemplated in 14 C.P.R.§ 135.241. Thus the applicability of 14 C.P.R. 

§§ 135.251 and 135.255 was found within these regulations themselves and not within 14 C.P.R. 

§ 135.241. 

3_ in the Matter ofHelicopter Flite, Tnc_, is not applicable in this matter.6 

Respondent cites the Helicopter Flite case for the proposition that if a company does not 

have exclusive use of an aircraft than it cannot be cited for a violation of 14 C.P.R.§ 135.25(b) 

unless it conducts operations during the period where it had no exclusive use. (Resp't's PostHearing Br. at 9). Respondent appears to want to stretch this holding to say that a certificate 

holder can only be cited for regulatory violalions during a period when he is conducting 

operations. ld. This significantly misses the mark as Respondent completely ignores In the 

MatterofHelicoptcrFlitc. Inc., FAA Order No. 2011-11,2011 WL 6262276, at "'2 (Nov. 22, 

2011), which modified the previous order to hold that "[a] finding that a certificate holder is not 

in compliance with Section 135.25(b) does not require proof that the certificate holder operated 

any aircraft during the time period in which it lacked an exclusive usc aircraft ... " Therefore, 

Respondent's argument is meritless. 

II. Mr. Baker Was and Employee Under 14 C.F.R. Part 121. 

Respondent fails to acknowledge that Mr. Baker was an employee of Respondent 

according to the definition of"employee" found in 14 C.F.R. part 121. (Resp't's Reply Dr. at 20-

22). Respondent also fails to acknowledge that ''moonlighting'' is not permitted under the 

regulations and has not been since 2004. I d. As discussed in Complainant's Post-Hearing Brief, 

Mr. Baker clearly fell under lht:: d~;;finition of"cmployee" tound in part 121. See Compl't's Post-

"In the Matter of Helicopter Flite, Inc .. FAA Order No. 201 I -6, 2011 WL 2S60783 (Jun. 13, 20 11). 

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Hearing Br_ at 6-7. ln addition, the loophole that allowed "moonlighting" was closed in 2004 and 

the regulations now explicitly forbid thf; practice_ See Compl't's Post-Hearing Br_ at 7-8. 

III. The Regulation~ Were Properly Promulgated In Accordance Wi1h tbe 

Administrative Procedures Ad. 

As discussed in Complainant's Post-Hearing Brief, the regulations cited in in the Final 

Notice of Proposed Civil Penalty were properly promulgated in accordance with the 

Administrative Procedures Act. (Compl't's Post-Hearing Br. at 10)- In addition, it is the 

responsibility ofthe certificate holder to know the regulations that pertain to its exercise ofthe 

privileges authorized by the certificate it holds_ ld_ at I 0-11. Respondent attempts to dislort the 

record in order to support its position that the onus is on the FAA to keep Respondent abreast of 

any regulatory changes_ Respondent provides several arguments in an attempt to support its 

theory that there was a failure to notify him ofthc regulations and that should eliminate its 

responsibility_ Respondent's arguments are all without merit. 

H ..espondent argues that the regulations cited in the Complaint "were not clearly 

referenced or disclosed in the signed operations spccificationll-" (Resp't's Reply Br_ at 10, 13)_ 

This could not be farther from the truth_ Resp,')ndent's operations specifications clearly reference 

the exact set of regulations that Respondent certified it would comply with_ (Exh_ A-2; Tr. 116: 

3-19; 182: 17-19; 271-2: 224; 316: 7-19). 

Respondent also argues that Complainant was required to provide an internet address in 

the operations specifications that would point Respondent to a website containing the 

regulations_ (Resp't's Reply Br .. at 11)- However, Respondent provides no evidence or testimony 

of a requirement for Complainant to do so_ Instead, Reo:spondent points to the establishment of a 

website unassocialcd with the FAA's Drug Abatement program as a line of demarcation of when 

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he _could reasonably be expected to adhere to the drug testing regulations.7 Td. Following 

Respondent's logic, no certificate holder would have been required to adhere to the drug testing 

regulations prior to the establishment of the Drug Abatement office's website containing the 

drug testing regulations. This line ofrt;asoning simply has no basis in fact. The regulations were 

properly promulgated by notice and comment and posted to the Federal Register. (Compl't's 

Post-Hearing Br. at I O-Il). In addition, the rulemaking documents themselves contained several 

references to methods for ohtaining the docume::nls including website references. (Tr. 31 8: 16-

12). 

Respondent also attempts to argue that because Ms. Lozada and Ms. Frankel did not 

define the term "methods of compliance" that this somehow was relevant to the case at hand. 

(Resp't's Reply Br. at 12). In tact, Respondent never provided any evidence or testimony of what 

the term "methods of compliance" means and how it is relevant to this case. 

Respondent then argues thatthere was no grace period for compliance and that should 

somehow obviate the need tor its compliance with the regulations. ld. at 12. In fact, the record is 

clear that on February 28, 2002, the FAA published a Notice of Proposed Rulcmaking in the 

Federal Register that outlined the elimination of the "moonlighting" loophole. (Tr. 195: 1 0-17). 

The final rule was published in the Federal Register on January 12, 2004. (fr. 196: 10-12). The 

rule became effective February 11, 2004. (Tr. 196: 19-20). Th~ proposed rule was published fornearly two years before it became effective and the final rule was published for nearly a month 

before it became effective. During those times, certificate holders had ample opportunity to bring 

their drug abatement programs into compliance. Respondent's violations did not occur until 

2008, four years after the final rule was published and became effective. (Tr. 318: 5-8; 319-20: 

7 Respondent cites Order 8900.1 which is a Flight Standards document and not 1:1 document associated with the Drug 

Abatement office. 

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21-6). Respondent's argument is completely without merit in thai proper notice and comment 

was provided during the rulemaking process and regardless, Respondent's violations occurred 

years after the rules became final. 

Next, Respondent argues that he was not notified of the changes by anyone at the 

Allentown FSDO. (Resp't's Reply Br. at 14). This is irrelevant. Respondent provides no basis as 

to why an yon~;; al the FSDO would be responsible for informing him of a change in the 

regulations. Instead, the record clearly states that the drug testing regulations do not come under 

the purview of the PSDO and inskad arc a program overseen by the Drug Abatement office. (Tr. 

137: 18-22). Just as a drug abatement inspector would not provide infonnation about proper 

maintenance procedures, so to would a FSDO employee not provide drug abatement regulation 

information. 

Respondent then claims that 14 C.F.R. §§ 135.251 and 135.255 do "not inherently state 

that MRH must directly test each.employee who performs a safety sensitive function rather states 

empirically that any person conducting safdy sensitive functions must be covered by an FAA 

approv~d drug and alcohol testing program_,, (Resp't's Reply Br. at 15). These regulations 

cannot be read in a vacuum; rather, they must b..: read in conjunction with the regulations that 

delineate what is and what is not an FAA approved drug testing program. Clearly, as discussed in 

Complainant's Post-Hearing Brief Mr. Baker was not covered under an FAA approved drug 

testing program for the purposes of his '\1/0rk for Respondent. (Compl't's Post-Hearing Br. at 7-

8). 

Finally, Respondent attempts to argue that because the regulations contained in 14 C.F .R. 

Appendices I and J were moved to 14 C.P.R. part 120 in 2009, this shows that the regulations 

were impossible to adhere to. (Resp't's Reply Br. at 15-17). This is patently false. Once again, 

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the recodification of these regulations wac; promulgated in accordance with the Administrative 

Procedures Act_ (Compl't's Po~1-Hearing Br. at 10-11). Regardless, the recodification occum;d 

in 2009 while Respond~nl's violations occurred in 2008. Jd. 

IV. Aviation Safety Was lrnJ))icated. 

Respondent argues that serious safety issues were not implicated yet the record clearly 

supports the fact that safety was implicated by Respondent's actions. (Resp't's Reply Br. at 18-

20)_ To support its theory, Respondent argues that because Respondent did not conduct any part 

135 flights that there were no possible safety consequences. 1d_ The fact that no accident 

occurred is merely fortuitous. The record clearly supports the fact that there were serious safety 

issues involved in that Respondent had safety-sensitive work performed by a mechanic who was 

not covered by either Respondent's or his own FAA-approved drug testing program. (Tr. 157: 8-

.LO; 310: 10-I 1). 

V. The Sanction is Appropriate. 

As discussed in Complainant's Post-Hearing Brief, the civil penalty in this matter is 

appropriate. (Compl'l's Post-IIearing Br. at 11-13). Respondent claims the civil penalty is not 

warranted. (Resp't's Reply Br. at 22). However, Respondent's sole support for its argument is an 

unsubstantiated statement found in its brief. As discussed in Complainant's Post-Hearing Briet: 

Respondent has only provided incomplete federal and state tax retums. 8 (Compl't's Post-Hearing 

Br. at 12-13). An a')sertion of inability to pay is an affinnative defense and the burden is on 

Respondent to prove that defense. !n the Matter of American Air Network. Inc., FAA Order No. 

2006-5, at fu. 19 (Feb. 10, 2006). :Respondent failed to provide the federal tax returns requested 

~Respondent provided the following documents: (1) 2007 ?A Corporate Tax Repon; (2) Z007 PA Schedule L; (3) 

2007 Federal Schedule C- Profit of Loss From Businc:ls; ( 4) 2008 l' A Corporate Tax Report; (:5) 2008 PA Schedule 

L; ( 6) 2009 PA Corporate Tax Report; (7) 2009 Schedule C-2 P A Dividend Deduction Schc:dulc; (8) 2009 P A 

Schedule I~; (9) 2009 PA Schedule C~5 Schedule of Taxes; (10) 2009 Federal Schedule C- Protit or Loss From 

Business 

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by Complainant in order for Complainant to assess Respondent1s assertion of inability to pay. At 

the hearing, Respondent provided no evidence or t~stimony to challenge the validity of the 

penalty as determined by Complainant 

VI. Conclusion. 

For the forgoing reasons, Complainant asks that the Law Judge find that Respondent has 

violated 14 C.F.R. §§ 135.25 J (a) and 135.255(b) and issue an Order accordingly, assessing a 

civil penalty against the Respondent in the amount of$4,400. 

Respectfully submit1cd, 

Peter Lynch 

Assistant Chief Counsel 

for Enforcement 

Dy:Q2. 

Charles Raley, Attorney 

Enforcement Division, AGC-300 

Office ofthc ChiefCounseJ 

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 3, 2012 

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Certificate of Service 

I hereby certifY that on this date I have placed in the U.S. mail, postage prepaid, certified 

return-receipt requested, a copy of Complainant's Post-Hearing Rebuttal Briefln the Matter of 

M & R Helicopter, Docket No. CPIOSOOOllO, FAA Case no. 2009$0950434, addressed to: 

Dr. Michael B. Selig 

President 

M & R Helicopters, LLC 

2045 Westgate Dr., Suite 205 

Bethlehem, P A 18017 

In addition, I hereby certifY that on this date I have sent by th~ U.S. mail, postage 

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

The Honorable Richard C. Goodwin 

Administrative Law Judge 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E. 

Washington, DC 20590 

.Facsimile: 202-366-7536 

Jn addition, I hereby certify that on this date I have sent by personal delivery, 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 2Wl000 

Dated: May 3, 2012 

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