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### BeforetheU.S. DepartmentofTransportation 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 Pursuantto the 

### June 30) 2011 Amended Procedural Order and

### the February 21, 20I 2 

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

### Atthethreshold, 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 CertificateWith Operations Specifications AuthorizingPart 135 

### Operations. Respondent is, 

### and at

### the time oft.hc violations was, the holder ofAir 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 ofthe violations and had not been in operation up through the date ofhis filing ofhis reply brief. (Rcp't's Reply Br. 

### at 6-7). 

### To supportthis, Respondent states that "the operational specifications and compliance statements required updating, current with confirmatory signatures," yethe provides no referenceto 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 Respondentretained its 

### part 119 certificate authorizing itto operate under part 135. (Tr. 331: 5-20; 334; 4-20). Respondent also asserts thatthe 

### company "underwent a corporation and name change 

### making the operations specifications invalid." Id. In support ofthis assertion, respondent points to Exhibit R-7, which is merely a Pennsylvania corporate name change document 

### and has absolutely nothing to do with whetherthe operations specifications were active or not (Tr. 331: 

### 5-16). Respondent further states thatthe 

### "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; I0-20). The fact is, as 

### fully supportedbythe record, Respondent's operations specifications were active atthe time ofthe violation, at the time ofthe inspection and continuedtobe active as of November

### 29, 201 I. (Tr. 164-5: 18-5; 165: 

### 21-22; 168: 9-15; 333-4: 14-20). 1. FAA 

### guidance is directly applicable to Respondent's violations. Respondent dismisses out ofhand**th~** 

### DeJoseph Letter oflnterpretation but this intt:rpretation is 

### clearly applicable to the case 

### at hand. SeeFAA 

### Letter oflnterpretarion issued by Rebecca MacPherson, 

### Assistant ChiefCounsel, Regulations, to Fran DeJoseph (2006 WL 

### 3792063 (D.O.T.)). Exh. A.:.l3. In this letter ofinterpretation, the FAA directly addressed the issue ofthe interrelationship ofthe drug and alcohol testing requirements with holding a part 119 certificate with operation specifications authorizing operations under part I35. Td. Jn this letter, the FAA made it clear that aircraft listed on operations specifications issued under 14 

### C.F.R part

2 

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### 135 must be maintained in accordance with part 135. Id. This includes having all maintenance that isperformed 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 aircraftrequires emergency maintenance and there are no maintenance providers subject to appendix I ofpart 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, 

### butthe operator would then have to notify the FAA within 10 days ofthis maintenance and also have the aircraft inspected at the next airportwhere they could have individuals who are underthe drug-testing regulations perfonn the inspection. ld The FAA then made it 

### clear that "[o]therthan in the circumstances described in section 

### 135.25l(c),

.maintenance by persons not tested pursuantto appendix I ofpart 121 is prohibited on aircraft operated umh.::r part 135." 1 

### ld. Non-emergency maintenance on an aircraft that is listed on the OPSECS ofa part 119 certificateholder 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 ofthe regulations, which could result inpenalties and require corrective actions, including the possible removal ofthe aircraft from the certificate holder's operations specifications." DeJoseph Letter ofJnterpretation, citing 14 

### C.P.R.§ ll9.5 I. 

### The DeJoseph Letter ofInterpretation 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 notoperating under part 135, 

### but under part 9L The FAA acknowledged that when conducting part 91 operations, flights maybe conducted under part 91 operating rules, but "filfan aircraft is listed onthe operation specifications ofa part 

### 135 certificate holder, certain part 135 requirements, such as compliance with approved
1 ResJ')ondent has notproduced any evidenceto support that itfalls under the exception in section 135.25I(c). 3 @003/015

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maintenance programs, apply continuouslywithout interruption." DeJoseph Letter of Interpretation. Even ifan 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 testingrequirements of 14 C.F.R. sections 135.249-135.255 and also section 135.253." ld. Any maintenance performed on an aircraftthat is listed on 

### apart 135 operator's operations specifications that is "done by 

### a mechanicthat does not meetthe 

### 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 holderofa 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 accordancewith 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 ofparts 135 and 121 regardless ofwhetherthe operator is conducting flights. (Tr. 328: 4-7; 328-30: 16- 8). Respondent is the holder ofa part 119 certificate with operations**sp~;;cifications** authori:ling operations underpart 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 thatmeets the drug and alcohol testing requiremenls ofparts 135 and 121. (Tr. 329- 30: 21-8). R<.:spondcnt had maintenance performed on its aircraft 

### by an individual that didnot 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 theproposition that Respondent's certificate wa<> not active. (Resp't's Post-HearingBr. at 7). Respondent errs in citing this case because the holding in Everson is not applicable here.
a. RespondentHad Commenced Operating Under Part 135. In Everson, Judge Kolko found that the "Respondent was not obligatedto create or implement an antidrug program or an AMPPpriorto the carrier's actual submission ofsuch plans to the FAA."3 Everson at 2. In that case, the 14 C.F

### .R. part 119 certificate holder with operations specifications authorizing 

### iito 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 commencedpart 135 operations. 

### In Everson, the companywas not required to t'ollow an antidrug program because it did nothave 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 neededtobe implemented "no laterthan the date ofinception ofoperations.'' Id. In that case, the company had not cotnmenced part 135 operations andtherefore 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 DocketNo. CP99WA0002 (2000). 3The Ev<.'TSon case is not precedent fDr the**purrose~** ofthis maner. The FAA chose: notto appeal Judge Kolko"s initial decision and the FAA Decisionmaker did not make a finding as to Judge Kolko's decision. As the inilial decision oftheALIwas not appealed tothe fAA**Decisionmak~:r,** it is notconsidered precedent in this matter under 14 C.f'.R. § 13.2320)(3). 5 

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underpart 135 must "[i]mplement an FAA antidrug program no laterthan the date you start operations, and meet the requirements ofthis appendix." Tn this case, Respondent commenced 14 C.F.R. part 135 operations in orprior 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). Respondentcertified in its operations specifications that, "the certificate holder who operates underTitle 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 CFRPart40 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 conductoperations underpart 135, was required under 14 C.F.R. purl 121, Appendix I, § IX.B.l to implement an antidrug program no laterthan the date it started operations and to meetthe requirements ofAppendix LIn addition, under 14 C.F.R. part 121, Appendix

### J, § VII.B.l, Respondent was required 

### to implement an Al\1PP no later thanthe date it started operations andto meetthe requirements ofAppendixJ. The requirements in Appendices I and J included the random testing ofsafety-sensitive employees, which includedindividuals 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 triggeredthe requirementto comply with the FAA drug and alcohol testing regulations. Respondent also certified that it would comply with the drug and alcohol testing regulations when itreceived its operations· specifications. Appendices I and J bothrequiredthat Respondent perform random dmg and alcohol testingon its safety-sensitive employees. 

### Mr. Bakerperformed aircraftmaintenance

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and/orpreventive maintenance on Respondent's aircraft for Respondent and therefore should have been included in Respondent's random drug and alcohol testingpools or in the random 

### drug and alcohol testing pools of

### a company contracted by Respondent to perfonn aircraft maintenance and/or preventive maintenance onRespondent'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 thatthe respondent, who had yetto 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 crcwmemberrequirements for operations underthis subpart."Everson at 2. Ofnote is that 14 C.F.R. § 135.24I said that

### tl1c subpart appliedto 

### flighT
crewmembers (emphasis added) who are conducting operations under Subpart E. lt is true that i:l

4 Jn the EAJA caseheld aficr the ruling in Everson, the FAA Decisionmaker didnotmake a determination

## as to whetherJudge Kolko's decision wa<> appropriate
..**s~~** IntheMatter of: DavidE. Everson. dlb/a North Valley**!._kliC()P.~Th** Inc.,FAA OrderNo. 2004·5, Docket No. CPOOWAOOOI (EAJA) (Scp. 22, 2004). However, the FAA Dccisionmaker didfind there: wc:n:**n:~unablc** BTgumcnts madethatthe regulations in question were applicable, noting thattheregulations citicd in**~verson** did refer to "each certificateholder" and therefore C()u]d be interpreted to applyto any cenifica1e holder regardless ofthe operations flown. Jd. In addition, the FAA Deeisionmaker noted that language in the preamble to the final rule for alcohol testingpromulgated in 2004 stated that "the: rule would include ''ess¢ntially the same classes ofemployers as are**oov~rod** by the anti-drug rule: 14 C.F.R. part Ul certificateholders, 14 CFRpart 135 certificate holders
...."' lp. (citjryg 59 Fed. Reg. 7380, 7381 (February 15_, 1994). TheFAA**Dcci~ionmaker** also notes that th¢ "FAA's guidelines for implementing anti-drug programs stated that: "LEJvery single-person aviation business [under Part I35J
... mustbe pan of

### a drug program approved by the FAA.'" Id. (citi.ug Office ofAviationMedicine, Drug Abatement Branch, "Guidelines for Single-Person Aviation Businesses: Implementing the f<'AA Ami-DrugProgram," p. 3 (Feb. 1990). 7 @007/015

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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 SubpartEatthetime ofRespondent's violations, the language in these sections indicated thatthey**cov~.:rcd** more than flight crewmembers. The plain language of§ I35.251 stated that "[ e]ach 

### certificate holder oroperator shall testeach ofit<; employees who performs a function listed in appendix 

### I to part 121 ofthis chapter in accordance with that appendix.',s 14 C.F.R. § 135.251 (1997) (emphasis added). The functions listed in appendix 

### 1included flight crewrnembcrduties, flight attendant duties, flight instruction duties, aircraft dispatcher duties, aircraftmaintenance orpreventive maintenance duties, ground security coordinator duties, aviation screening duties, and airtraffic 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 oroperator 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 ofappendix 

### 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 ofthis appendix for an employer
...." Thefunctions listed in section II ofAppendix J included flight**cr~.:wmember** duties, flight attendant duties, flight instruction duties, aircraft dispatcher duties, aircraft maintenance orpreventive 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 containedwithin 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 ofthese sections covered a greater scope ofindividuals 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 theMatter ofHelicopterFlite, Tnc_, is not applicable in this matter. 6 Respondent citesthe Helicopter Flite case for the proposition that ifa company does not have exclusive use ofan 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 exclusiveuse. (Resp't's PostHearing Br. at 9). Respondent appears to want to stretch this holding to saythat a certificate holdercan onlybe 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 OrderNo. 2011-11,2011 WL 6262276, at "'2 (Nov. 22, 2011), which modified the previous orderto hold that "[a] finding that a certificate holder is not in compliance with Section 135.25(b) does not require proofthat 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. BakerWas and Employee Under 14 C.F.R. Part 121. Respondent fails to acknowledge that

### Mr. Baker was an employee ofRespondent according to the definition of"employee" found in 14 C.F.R. part 121. (Resp't's Reply Dr. at20- 22). Respondent also fails to acknowledge that ''moonlighting'' is notpermitted under the regulations and hasnotbeen since 2004. Id. As discussed in Complainant's Post-Hearing Brief, Mr. Bakerclearly fell under lht::**d~;;finition** of"cmployee" tound in part 121. SeeCompl't's Post-

"IntheMatter ofHelicopterFlite, Inc
.. FAA OrderNo. 201 I-6, 2011 WL 2S60783 (Jun. 13, 20 11). 9 @ 008/01505/04/2012 13:42 FAX 2024935142 FAA + OMS

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'sPost-Hearing Br_ at 7-8. 

### III. The**Regulation~** 

### Were Properly Promulgated In AccordanceWi1h tbe 

### AdministrativeProcedures Ad. As discussed in Complainant's Post-Hearing Brief, the regulations cited in in the Final Notice ofProposed 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 holderto know the regulations that pertain to its exercise ofthe privileges authorized by the certificate itholds_ ld_ at I0-11. Respondent attempts to dislort the record 

### in orderto support its position thatthe onus is on the FAAto keep Respondent abreast of any regulatory changes_ Respondentprovides several arguments in an attempt to support its theorythattherewas a failure to notify him ofthc regulations and that should eliminate its responsibility_ Respondent's arguments are all without merit. H

..espondentargues thatthe regulations cited in theComplaint "were not clearly referenced or disclosed 

### in the signed operations spccificationll-" (Resp't'sReply Br_ at 10, 13)_ This could not be farther from the truth_ Resp,')ndent's operations specifications clearly reference the exact set ofregulations 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 Complainantwas required to provide an internet address 

### in the operations specifications that would point Respondent to a website containing the regulations_ (Resp't'sReply Br
.. at 11)- However, Respondent provides no evidence ortestimony ofa requirement for Complainantto do so_ Instead, Reo:spondent pointstothe establishment of

# a website unassocialcd with the FAA's Drug Abatementprogram as a line ofdemarcation ofwhen

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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 tothe establishment ofthe DrugAbatement office's website containingthe 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-HearingBr. at IO-Il). 

### In addition, therulemaking documents themselves contained several references to methods for ohtaining the 

### docume::nls including websitereferences. 

### (Tr. 31 8: 16- 

### 12). Respondent also attempts to argue 

### that because Ms. Lozada and Ms. Frankel did 

### not definethe term "methods ofcompliance" that this somehow wasrelevant to the case at hand. (Resp't's ReplyBr. at 12). In tact, Respondent never provided any evidence ortestimony ofwhat the term "methodsofcompliance" means and how it is relevant to this case. Respondentthen argues 

### thatthere was no 

### grace period for compliance and that should somehow obviate 

### the need 

### tor its 

### compliance withthe regulations. ld. at 

### 12. Infact, the record 

### is clearthat 

### on February 28, 2002, theFAA published a Notice ofProposed Rulcmaking in the Federal Register that outlined the elimination ofthe "moonlighting" loophole. (Tr. 195: 10-17). 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 

### fornearlytwo years

### before it became effective and the final rule was published for nearly a month before it became effective. During thosetimes, certificate holders had ample opportunity to bring their 

### drug abatement programs into 

### compliance. Respondent's violations did not occuruntil 2008, four years after the final rule was published andbecame effective. 

### (Tr. 318: 5-8; 319-20:

7 Respondent cites Order 8900.1 which is aFlight Standards document and not 1:1 document associated with the Drug Abatement office. 11**~011/015**05/04/2012 13:43 FAX 2024935142 FAA + OMS

21-6). Respondent's argument is completely without merit in thaiproper notice and comment
was provided duringthe rulemaking process and regardless, Respondent's violations occurred years aftertherules became final. Next, Respondent argues that he was not notified ofthe changes by anyone atthe 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 

### ofa change in the regulations. 

### Instead, the record clearly states thatthe drug testing regulations do not come under thepurview ofthe PSDO and inskad arc a program overseen by the Drug Abatement office. (Tr. 137: 18-22). Just as a drug abatement inspectorwould not provide infonnation about proper maintenance procedures, so to

### would a FSDO employee not provide drug abatement regulation information. Respondentthen claimsthat 14 C.F.R. 

### §§ 135.251 and 135.255 do "not inherently state that MRH must directlytest 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 

### testingprogram_,, (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 drugtesting program. Clearly, as discussed in Complainant's Post-Hearing BriefMr. Bakerwas not covered under an FAA approved drug testing program for the purposes ofhis 

### '\1/0rk for Respondent. (Compl't's Post-Hearing Br. at 7- 

### 8). Finally, Respondent attempts to argue that because theregulations contained in 14 C.F.R. Appendices I and Jwere moved to 14 C.P.R. part 120 in2009, this shows that the regulations
were impossible to adhereto. (Resp't's ReplyBr. at 15-17). This is patently false. Once again,

12 la]012/015

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### OMS

the recodification ofthese regulations wac; promulgated in accordance 

### with theAdministrative 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 SafetyWas 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'sReply Br. at 18- 20)_ To support its theory, Respondent argues thatbecause Respondent did not conduct any part 

### 135 flights thatthere were no possible safety consequences. 

### 1d_ The fact that no accident occurred is merely fortuitous. Therecord clearly supportsthe fact thatthere were serious safety issues involved in that Respondenthad 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 inthis 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: Respondenthas only provided incomplete federal and state taxretums. 8 (Compl't'sPost-Hearing Br. at 12-13). An a')sertion ofinability to pay is an affinnative defense and the burden is on Respondentto prove that defense. !nthe Matter ofAmerican AirNetwork. Inc., FAA Order No. 2006-5, at fu. 19 (Feb. 10, 2006). :Respondent failed to providethe federal taxreturns requested**~Respondent** provided the following documents: (1) 2007 ?A Corporate Tax Repon; (2)Z007 PA ScheduleL; (3) 2007Federal Schedule C- Profit ofLoss 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 PA Schedule**I~;** (9) 2009 PA Schedule**C~5** Schedule ofTaxes; (10) 2009 Federal Schedule C- Protit orLoss From Business 13 

### @013/01505/04/2012 13:43 FAX 2024935142 FAA**~** OMS

by Complainant in order for Complainantto assess Respondent1s assertion ofinability to pay. At the hearing, Respondentprovided no evidence or**t~stimony** to challenge the validity ofthe penalty as determined by Complainant 

### VI. Conclusion. Forthe 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, PeterLynch Assistant ChiefCounsel

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

14 141014/01505/04/2012 13:43 FAX 2024835142 FAA + OMS



### Certificate ofService I hereby certifY that on this date I have placed in the U.S. mail, postage prepaid, certified return-receipt requested, a copy ofComplainant's Post-Hearing Rebuttal Briefln the Matter of M & R Helicopter, Docket No. CPIOSOOOllO, FAA Case no. 2009$0950434, addressedto: Dr. Michael B. Selig President 

### M & 

### RHelicopters, 

### LLC 2045 Westgate Dr., Suite 205 Bethlehem, PA 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 ofthe foregoing documentto: The Honorable Richard 

### C. Goodwin Administrative Law Judge U.S. Department ofTransportation 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 oftheforegoing documentto: 

### Federal Aviation

### Administration 800 Independence Avenue, S-W. Washington, D.C. 20591 Attn: Hearing Docket Clerk, AGC-430 Wilbur WrightBuilding- Suite 2Wl000

Dated: May 3, 2012



### 15 141015/015