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Federal Aviation 

Administration 

Regional Counsel's Office,AGL-7 

2300 East Devon Avenue 

Des Plaines. Illinois 60018 

T 847-294-

F 047-2S4-749e 

Facsimile 

RE: 'AMWMJMmUu^M^ • av/oaLa 

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Served August 29, 2011 

::^R^RTWENT OF 

•i^/^NSPORTAIiON 

^UCKETOPERATiOMG 

U.S. DEPARTMENT OF TRANSPORTION ii-!l AIJ I i P 2 bb 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

INTHEMATTHROF 

Rushroore Helicopters, Inc. 

FAA DOCKET NO. CP10GL0002 

(Civil Penalty Action) 

DMSNo. FAA-20tO-0023 

Agency's Post-Hearing Reply Bri ^ 

The Federal Aviation Admini strati on (CompiainanO, through its UT>deTsigned counsel, hereby 

submits Ihis Reply Brief in Response to Respondent's Brief on Is.sue of Law and Closing Argument 

received by the Complainant on August 23, 2011. At hearing and in its Closing Brief submitted July 6, 

2011, Complainant asserts that Respondent violated 14 C.F.R. 91.7(a) and 91.13(a) on August 7, 2009 

when Respondent operated N2268W while the aircraft's fuel filler port was covered with duct tape 

rather than the appropriate fuel cap. 

I. Respondent •^Operated"' N2268W 

Respondent's Brief argues Respondent did not operate N2268W on August 7, 2009. Respondent 

asserts that because Mr. Leffert, the pilot of the helicopter on those dates, physically manipulated the 

controls of the aircraft, he and only ho could have operated the aircraft. Although Respondent has 

quoted dictionary definitions of "operate," he has overlooked the specific definition of "operate'" 

provided by the Code of Federal Regulations. Section 1.1 states, '"Operate, with respect to aircraft, 

moans use, cause to use or authorize to use aircraft, for the purpose (except as provided in if91.I3 of this 
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chapter) of air navigation including the piloting of aircraft, with or without the right of legal control (as 

owner, lessee, or otherwise)." 14 C.F.R. § ll -

However, on April 1, 2010, Respondent admitted in its Answer the following: 

2. In its CA T operation Rushmore employed the services of a commercial pilot, Robert Leroy 

Leffert (LclTert) and operated a Bell 206 helicopter, registered as N2268W and owned by 6S 

Whiskey LLC. 

3. At all times relevant hereto Leffert acted as pilot in command and operated N226)i"W as a 

pilot of, and agent of, Rushmore in the C;AT operation. 

As indicated by Respondent's own admissions, Mr. Leffert flew N226KW as Respondent's 

agent, while employed by Respondent, for the purposes of Respondent's commercial air tour operation. 

Respondent did in fact "operate" the aircraft for the purposes of this case. 

IL N2268W was unairworthy while duct tape was placed over its fuel port rather than the 

appropriate fuel cap 

As Respondent indicated, the test for airworthiness is two-fold. '"To be aii^worthy, an aircraft 

must: (1) conform to a type design approved under a type certificate or supplemental type certificate and 

to applicable Airworthine.ss Directives; and (2) be in a condition for safe operation.'" In ihe Matter of 

Brendan AirM'ays, LLC 2010 WX 2326082 at 5 (June 7, 2010) (citing Del. Skyways LLC, FAA Order 

No. 2005-6 at 2 (Mar 8, 2005) and Cal Helifech, FAA Order No. 2000-18 at 2 n.7 (Aug 11, 20(JU)); fn 

the Matter o/H'hitley. 2008 WL 441798 at 6 (Jan. 30, 2008)(stating that to be "airworthy" an aircraft 

"must conform to its type design arid must be in a condition for safe flight). This test requires both 

conformance with type design and condition safe for flight. Although Respondent properly cites the 

test, it confuses the conjunctive nature of the test when it aigues that "[elven if the first prong had been 

established by the FAA. it slili failed to prove the second prong." Respondent's Brief, pg. 5. Because 

the test requires both conformance and safety, to find that Respondent's aircraft unairworihy> the 
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Complainant need only establish,by a preponderance of the evidence that Respondent failed either part 

of the airworthiness test. 

1. N2268W was unairworthy because it did not conform to its type certificate. 

Respondent alleges that because Complainant did not enter the aircraft's 'type design" into 

evidence, the evidence docs not show the aircraft was unairworthy. However, as discussed in 

Complainant's Brief filed on July 6, 2011, in the appeal of In the Matter of America West Airlines. FAA 

Order No, 96-3, 13 (Feb. 13, 1996), the Administrator found an aircraft unairworthy for failure to 

conform to the aircraft's type certificate and type design even where the Agency had not intrtMiuced the 

type design into evidence. In that case, inspectors testified that the aircraft was no longer in its original 

or properly altered conditions. Id. Without introducing evidence of type design or type certificate, the 

Administrator found that the aircraft was not airworthy because it failed to conform to its type design. 

Similarly, at the hearing in this ca.se, Complainant's witnesses testified that after duct tape was 

placed over the aircraft's fuel port, the aircraft no longer met its type design. The .Agency Inspectors 

were Inspector James Bad Horse—an A&P Mechanic who maintained Army helicopters as a contractor, 

worked on the "Huey" (Bell 206 and 205), and currently is a Maintenance Airworthiness Inspector-—and 

Inspector Gary Kwasniewski-—a certificated Helicopter Pilot with an A&P Certificate and Inspection 

Authorization rating who maintained helicopters in the military for over seven years. HTpp. 14-15, 89-

92. Inspector Bad Horse Stated: "[T]he aircraft is manufactured and it came out of the factory, with, 

obviously, in tliis case, a fuel cap, so that in part of type design for the type certificate." HT pg 95, lines 

15-19. Inspector Bad Horse continued, "[The fticl cap] not being on the aircraft, it is not airworthy."' 

IITpg. 96, lines U-12. Additionally: Inspector Kwasniewski testified, "S[o], if it's not configured with 

that fuel cap, or properiy altered with an SDC or -iust that alone would make it unworthy." ILTpg. 46. 

lines 4-6. Moreover, the Complainant introduced an email from a Bell Helicopter Engineer which 
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specifically stated, "The fuel filler cap assembly is an essential (as opposed to optional) component 

linked to the Bell Helicopter model 206 engineering lop drawing." Agency Hearing Exhibit 7. In other 

words, a Bell Engineer explained that the fuel filler cap is part of the aircraft drawings, its design, which 

it must conform to in order to meet the definition of airworthy. In this case, when the aircraft was 

operated on August 8, 2009, the aircraft had duct tape over its fuel port rather than the fuel filler cap; 

therefore, the aircraft did not conform to the aircraft design and failed the first prong of the airworthiness 

definition. 

Respondent again attempts to argue that the aircraft was in conformance with its type certificate 

because a Bell Representative allegedly told Respondent's President that the fuel cap is not a structural 

component of the aircraft. Respondent's Brief, pg. 5. As previously di.scussed In the Agency's Brief, 

the Agency is not claiming N2268W was in danger of breaking apart in mid-air because of a structural 

failure. Whether or not the fuel cap is a "structural componenf" of the aircraft is not relevant to the issue 

at hand. What is important is that without the fuel cap the aircraft does not conform to its type 

certificate and, therefore, the aircraft was not airworthy. 

2. N2268W was unairworthy because was not in a condition safe for flight. 

In addition to not conforming to its type certificate when it had duct tape covering its fuel port, 

N2268W was also not airworthy because it failed the second part of the airworthiness test—it was not in 

a condition safe for flight. Respondent argues thai because its pilot did not, at the time, feel thai there 

was a safety concern with flying the aircraft with duct tape over the fuel port, that automatically requires 

the conclusion that N2268W was in a condition safe for flight. However, significant credible evidence 

was admitted at hearing leading to the opposite conclusion. Inspector Kwasniewski testified that the 

aircraft, wiih duct tape over the fuel filler port, was at risk of fuel contamination, which in turn could 

cause fuel siarvalion. IlTpg- 46. lines 18-22. Moreover, Inspector Kwasniewski explained that if there 
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was any accident, such as a roll over, there was a high risk of a fire where the aircraft has duct tape 

covering its fuel port rather than the approved fuel cap. HTpg. 47, lines 14-19. Inspector Bad Horse, an 

A&P Mechanic and current Maintenance Airworthiness Inspector, similarly testified as lo the unsafe 

condition of the aircraft. UTpp. 89-92. Inspector Bad Horse specifically explained thai "if the aircraft 

had gone down for any reason, and it had landed on iis side...now we have a chance of the fiael spilling 

out and possibly causing a fire." HT pg. 97. lines 4-H. Not only did the Agency present the above 

credible testimony, it also submitted an email from Bell Engineering whereby BelTs Engineer put in 

writing that "Bell Helicopter believes that if Highv operations are perfonmed when vhe Helicopters docs 

not have an approved fuel filler cap installed, the safety of the helicopter and it occupants is 

compromised and we consider the Helicopter is an unairworthy condition." Agency Hearing Exhibit 7. 

As Respondent pointed out in its brief, the Respondent's aircraft did not have extensive damage; 

however, that does not negate the fact that Respondent's aircraft was not only not in conformance with 

its type certificate, but also not in a condition safe for flight. N2268W was unairworthy on each flight 

operated by Respondent on August 8, 2009. 

in.Rcspondent violated 14 C.F:R. § 9M 3 

Pursuant to FAA Order 2150.3B, "When a person operates an aircraft in violation of a specific 

regulation other than U C.F.R. § 91.13, ... that violation constitutes a careless or reckless operation in 

and of itself In these cases, the misconduct may also result in a violation of 14 C.F.R. § 91.13 if it 

actually or potentially endangers the lives or property of others." Re.spondent's violation of 14 C.F.R. § 

91.7(a), operating an unairworthy aircraft on at least 10 separate passenger carrying flights, con.'Jtitutes 

careless operation in and of itself under 14 C.F.R. § 9L13(a). HT pg. 40 lines 17-21, pp. 73-77; pg. 

US; Agency Hearing Exhibit 4. Agency Hearing Exhibit 5. In this case. Respondent's operation of 

N2268W was noi merely a technical violation of 14 C.F.R. 91.13(a). but the operation was a separate, 
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independent violation. Respondent's operafion was not only not in an airworthy aircraft, but it was not 

safe. Respondent placed its passengers at risk. 

IV. Sanction 

The Agency's proposed sanction is well within the guidance found in FAA Order 2150.33 for 

the above regulatory violations. Agency Hearing Exhibit 6. For a small business concern, such as 

Respondent, the Sanction Guidance Table sets out the civil penalty range for each violation as follows: 

niodcrate, $2,200 lo S4,399 and maximum, $4,400 to $11,000. Therefore, a median penalty of $6,600 

for each violating flight is suggested. However, the Agency has proposed a penally of only $2,500 for 

each of the ten flights in violation of the regulations, for a total proposed civil penalty of $25,000. 

Respondent alleges that the FAA failed to prove that Respondent operated 10 passenger-carrying 

flights on August 7, 2009. However, Inspector Kwasniewski credibly testified regarding the flight log 

provided by Respondent's employee for August 7^ 2009 which UF;ts ten passenger flights. .Agency 

Hi^aring Exhibit 4. As Inspector Kwasniewski explained, Respondent's employee at the Keystone, SD 

location, pulled that flight log from a binder and told the Inspector that it was the flight log for that date, 

August 7, 2009, and any previous flight logs had already been taken to the main facility in Custer, SD. 

HT pg. 37. Although Exhibit 4 has a dale of August 6, 2009, the uncontradicted testimony at hearing 

clarifies that that flight log, showing 10 passenger carrying flights, was for August 7, 2009. Respondent 

presented no testimony or evidence suggesting that Inspector Kwasniewski's explanilion regarding the 

flight log from August 7, 2009 is incorrect. In fact, Respondent presented no testimony or evidence at 

all to attempt to have the sanction in this case mitigated. 

I he Agency seeks a civil penalty of $2,500 for each of the ten passenger carrying flights 

operated in an unairworthy condition, lotaling $25,000. This proposed civil penalty is well within the 
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range provided for by the Sanction Guidance Table and is appropriate for ihese violations where 

Respondent operated an unairworthy aircraft on 10 passenger carrying flights. 

V. CONCLUSION 

In sum. Respondent has violated 14 C.F.R. § 91.7(a) and 14 C.F.R. § 91.13(a) by operating an 

unairworthy aircraft on 10 separate pas.senger carrying flights on August 7, 2009. The proposed civil 

penalty of $25,000 is sustainable for the cited violations and is in accordance with the Agency's 

Compliance and Enforcement Program as outlined in FAA Order 2150.3B. 

WHEREFORE. Complainant respectfully requests the Administrative Law Judge issue an 

Initial Decision finding a violation of 14 C.F.R. § 91.7(a) and 14 C.F.R. § 91.13(a) and issue a civil 

penalty in accordance with the Agency's Sanction Guidance and the Agency's Final Notice of Proposed 

Civil Penalty in the amount of $25,000. 

Respectfully submitted, 

^tL/ViA^ /l\^l>i^t-^< ^ ^ 

Driana Martino 

Auomey, Federal Aviation Administration 

Office of the Regional Counsel 

Great Lakes Region 

2300 Cast Devon Avenue 

Des Plaines. IL 60018 

(T) 847-294-7313 

(F) 847-294-7498 

briana.martino@faa.gov 
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CKkTlKICATK OF SERVICE 

I hereby certify that I have, this date, served the foregoing Agency Reply Brief by mailing copies to the 

following addresses as follows: 

Original and One Copy (Facsimile and Regular Mail) 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, DC 20591 

Attention; Hearing Docket Clerk, AGC-430 

Wilbur Wright Building, Suite 2W1000 

FAX-. 102-493-5141 

Mr. Michael Jacob 

Rushmore Helicopters, Inc. 

24564 Highway 16/385 

Cu.<;ter, SD 57730 

FAX: 605-673-2163 

Email: michacljj@goldenwest.net 

The Honorable Richard C- Goodwin 

Administrative Law Judge 

Office of Hearings, M-20 

1200 New Jersey Avenue, S.E. 

East Building Ground Floor 

RoomEU-320 

Washington, DC 20590 

FAX: 202-366-7536 

One Copy 

(Facsimile and Regular Mail) 

(Facsimile and Regular Mail) 

Dated this 29"^ day of August, 2011 

Yol^ddaQuiles 

LegW Technician