### U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASIDNGTON,D. C.

IN THE MATTER OF: DOCKETNO. FAA-2011-1125 ELITEAIR, INC. FAA CASENO. 2010S0150236 Respondent Judge J.E. Sulli'fi. 

# JUL i G

# 2IIil 

# D

COMPLAINANT'S RESPONSE TO**RESPON~A·~** 

### . "'
. .. MOTIONFORSUMMARY

# JUDGMEN~¥;::JNG 

# DOCKET The Complainant, by and through his undersigned attorney, hereby responds to Respondent's motion for summary judgment. In the motion, Respondent asserts that Complainantcannotestablishthat Respondent failed to conductpre-flightinspections or failed to
use its General Opercations Manual. Respondent further asserts that at most Complainant can establishthat Respondent failed to properly complete flight manifests as requiredbythe General Operations Manual. Additionally, Respondent maintains that Complainant abused its discretioJ£ byproposing a civilpenaltyfor the Federal AviationRegulations (FAR) violationbecause a civil penaltyviolatesFAA Order 8900.1. STATEMENT OF THE FACTS Respondent's General OperationsManualprovidesthat, as partofthe preflight duties, the Pilot-in-Command "shall" enter the inspection due dates and times in the appropriate blocks of Form EAI-301. (Exhibit 1, Paragraph 1). 

### Respondent's General Operations Manual also provides an example Form EAI-301 and instructions for completing each required block. (Exhibit 2). Respondent's operations specifications issued by the Administrator provide that Respondenthas operational control ofall aircraft operations, including the actions orinactions of 1

### all direct employees or agents ofthe Respondent. (Exhibit 3, Paragraphs (b)(l), (d)(l)(a)). At the time ofthe violations alleged in the Complaint, Respondent utilized more than one pilot. (Exhibits 6-8) (showingtwo pilotsper flight). On April 12, Aviation Safety Inspector (ASI) William Meenan, the Principle Maintenance Inspector for Respondent at the time, conducted an inspection of N444CW. (Exhibit4). N444CWis operatedbyRespondent on Part 135 flights. (Exhibit 5). As a result of the inspection, ASI Meenan requested and obtained from Elite Air representatives copies of Form EAI-301 for N444CW flights between June 15, 2010, and August 12, 2010. (Exhibits 6- 8). The three Forms EAI-301 provided byElite Air showthat Respondent did not comply with its General Operations Manual on seven Part 135 flights because the Pilot-in-Command did not complete all required information on Form EAI-301. Id. Prior to the instant case, Respondent received an administrative warning letter in December 2008 because of FAR 135.21(a) violations related to Respondent's personnel not properly completing Form EAI-301. (Exhibit 9). As part ofthe administrative action, Respondent conductedpilottraining in the completion ofFormEAI-301. (Id.). Based on the information discovered by ASI Meenan, Complainant issued a complaint alleging ofRespondentthat (1) its General Operations Manual requires the Pilot-in-Command to enterthe inspectiondue dates and times in

### the AircraftFlightManifest (FormEAI-301), (2) prior to seven Part 135 flights between June 15, 2010, and August 12, 2010, the Pilot-in-Command failed to entertheinspectiondue dates andtimes onFormEAI-301, and (3) Respondent's failure to comply with its General Operations Manual was a violation of 14 C.P.R. § 135.21(a). (Complaint).

2

### ARGUMENT Respondent is not entitled to summaryjudgment because the undisputed facts establish thatRespondent violated FAR 135.2l(a) when it did not complete Form EAI-301 as required by its General Operations Manual. Additionally, Complainant did not violate any Orders by seeking acivil penaltyfor Respondent's violation ofF AR 135.21(a). I. 

### SUMMARYJUDGMENTFORRESPONDENTIS INAPPROPRIATE A party may file a motion for summaryjudgment where the pleadings and supporting documents establish that no factual issues exist, and that the party is entitled to judgment as a matter oflaw. 14 C.P.R. § 

### 13.218(f)(5); In the Matter of: pacific Aviation International, Inc. D/B/A Inter-Island Helicopters, FAA Order No. 97-8 at *4 (Feb. 20, 1997) (stating that the Federal Rule of Civil Procedure governing summary judgment is analogous to motions for a decision under FAA Rules ofPractice). Federal Rules ofCivil Procedure 56(a) provides that summary judgment shall be entered when the evidence and pleadings show that "there is no genuine issue as to any material fact and the movant is entitled tojudgment as a matter oflaw." Fed.R.Civ.P. 56(a). A. NO GENUINE ISSUE OF MATERIAL FACT EXIST THAT RESPONDENT VIOLATED FAR 135.21(a) As a preliminary matter, the Complaint does not allege, and Complainant does not have to establish, that Respondent failed to conduct a pre-flight inspection. See Complaint. Instead, the Complaint alleges thatRespondentviolatedFAR 135.21(a) whenits flight personnel failedto complete Form EAI-301 as instructed in Respondent's General Operation Manual. See id. Therefore, it is irrelevant whether ornot apre-flight inspectionwas conductedbyRespondent, as therelevantinquire is whether Respondent failed to comply with its General OperationManual's requirements for completingFormEAI-301.
3

### Respondent admits that its General Operations Manual requires a Pilot-in-Command to enter the inspection due dates and times in the Form EAI-301. See Answer; Exhibits 1-2. A review ofthe Forms EAI-301 at issue in this matter reveals that Respondent did not enter the inspection due dates and times. See Exhibits 6-8. Specifically, Form EAI-301 for June 15, 2010, N444CW flights shows that Elite Air operated two Part 135 flights on that date. See Exhibit 6. However, the Pilot-in-Command failed to enter (1) the beginuing and ending APU Hours, (2) the time for theNextTime Limited item due, and (3) thenumber ofcycles oftheNext Cycle Limiteditemdue. See id.; Exhibit2. Form EAI-301 for N444CW flights onJuly 20, 2010, and July 22, 2010, shows that Elite Air operated one Part 135 flight on each ofthose dates. See Exhibit 7. The Pilot-in-Command failed to enter (1) the ending APU Hours, (2) the number ofcycles ofthe Next Cycle Limited item due, and (3) the date for theNextDate Limited Item due. See id.; Exhibit 2. Further, Form EAI-301 for N444CW flights on August 11, 2010, and August 12, 2010, shows that Elite Air operated two Part 135 flights on August 11th and one Part 135 flight onAugust 12. See Exhibit 8. The Pilot-in-Command failed to enter (1) the ending APU Hours, (2) the time for the Next Time Limited item due, (3) the number ofcycles oftheNext Cycle Limiteditem due, and (4) the date for the NextDate Limited Item due. See id.; Exhibit 2. Accordingly, there is no genuine issue with regard to the material facts that Respondent failed to comply with its General Operations Manual on seven Part 135 flights whenits Pilot-inCommand failed to enterthe inspectiondue dates and times inthe Form EAI-301. See Exhibit 3 (making Respondent responsible for the inactions of its employees or agents in failing to completeFormEAI-301).



### 4

### B. COMPLAINANT, NOT RESPONDENT, IS ENTITLED TO JUDGMENT AS A MATTER OF LAW The Federal Aviation Regulations provided that an air 

### carrier certificate holder who uses
morethan one pilot "shallprepare and keep current amanual setting forth the certificate holder's procedures and policies acceptable to the Administrator. This manual must be used by the certificate holder's flight, ground, and maintenance personnel in conducting its operations." 14 C.F.R. § 

### 135.2l(a). Here, it is undisputedthatRespondentutilizes more than one pilot.**See~** 

### Exhibits 6-8 (listing two pilots on each flight). Additionally, it is undisputed that Respondent's personnel failed to follow the General Operations Manual's provisions related to completing Form EAI-301. See Exhibit 1, Paragraph 1; Exhibit 2; Exhibits 6-8. It 

### is therefore undisputed that Respondent's flight personnel failed to "use" the General Operations Manual by not following its provisions. See 14 C.F.R. § 

### 135.21(a); see also Initial Decision ofAdministrative Law Judge Goodwin In the Matter of American Air Network, Inc., FAA Docket No. CP04WP0013 at *4-5 (July 27, 2005), aff'd In the Matter ofAmerican Air Network, Inc., FAA Order No. 2008-10 (October 7, 2008) (finding Respondent violated FAR 135.21(a) when its maintenance personnel did not follow the procedures of Respondent's maintenance manual); Initial Decision ofAdministrative Law Judge Kolko In the Matter ofAir Sunshine, Inc., FAA DocketNo. CP03S00040 at *3-4 (December 20, 2004) (fmding that Respondent violated FAR 135.21(a) when its maintenance personnel did not follow the procedures of the maintenance manual). 1 

### Accordingly, Complainant and not Respondent is entitled tojudgment as a matter of lawregarding the fact thatRespondentviolatedFAR 135.21(a).

1 

### Copies ofthe two Administrative Law Judge decisions and the FAA Administrator decision cited inthis paragraph are attached for convenience. · 

### 5

### C. COMPLAINANTDID NOTVIOLATE FAA ORDER 8900.1 FAA Order 8900.1 provides direction and policy for the FAA Flight Standards Service, the FAA division in which aviation safety inspectors work. FAA Order 8900.1, Volume 14, Chapter 1, Section 8 (hereinafter "FAA Order 8900.1) provides policy to help aviation safety inspectors determine the appropriate actionto take for noncompliance withthe FARs. See FAA Order 8900.1, Subsection 14-140.2 

### It establishes what factors an aviation safety inspector should consider when determining whether administrative or legal action should be taken for a FAR violation. See generallyFAA Order 8900.1. Respondent maintains in its motion that FAA Order 8900.1 Subsection 14-143(A)(3)(a) requires administrative action inthis case. See Respondent's Motion for Summary Judgment at 4. The Subsectionprovides: "Enforcementpersonnel take administrative action orinformal actionfor low-risk violations corrected on the spot. For example, inspection findings of an incomplete field on an otherwise satisfactorily completed (and required) record or form, or a missing logbook entry for work-in-progress are usually low risk violations. Placement of information by the alleged violator in the incomplete field, or completing the required logbook entry might suffice as an on-the-spot correctionfor these kinds oflowriskcases. Whena certificate holder corrects low riskviolations onthe spot, itis acceptableto use administrative actionor informal action (oral or writtencounseling) afterthe correctionto closethese violations." FAA Order 8900.1, Subsection 14-143(A)(3)(a) (emphasis added). In arguing that the Subsection requires administrative action, Respondent is mistaken as to how the Subsection relates to the facts of this case. First, the Subsection clearly applies to situations where a certificate holder corrects a violation "on the spot" when the violation is discovered. See id. Here, Respondenthas presentedno evidence that it correctedthe FAR 135.2l(a) violation onthe spot by accurately completingthe missing informationinthe Relevant FormEAI-301 whenASI Meenan discovered the violation, nor could have Respondent corrected the violation because it

2 

### The complete FAA Order 8900.1, Volume 14, Chapter I, Section 8is attached for convenience. 

### 6

### operated N444CW on additional flights after the violations occurred. See Exhibits 6-8. Therefore, the Subsection is inapplicable given the facts ofthis case. See FAA Order 8900.1, Subsection 14-143(A)(3)(a). Second, even if the Subsection was applicable, the Subsection merely states that "it is acceptable to use administrative action;" it does not require administrative action. See id. A review ofFAA Order 8900.1, read in its entirety, permits Complainant to impose a civil penalty for the violation. Subsection C sets forth an abbreviated criteria for taking administrative or informal action, with a complete discussion of the criteria in FAA Order 2150.3B. See FAA Order 8900.1, Subsection (C)(4). One oftherequirements for administrative actionis thatthe violation does not indicate atrend ofnoncompliance. Id. Subsection (C)(4)(h). "A trend of noncompliance is indicated by a violation history that can include legal enforcement action(s), administrative action(s) and/or informal action(s). If the violations resulted from the same repeated misconductby an individual, orby the same department, section or group ofa small entity's organization, then the subsequent violation might suggest a disregard for the regulations and the beginning of a trend of noncompliance. In this case, administrative action or informal action is not appropriate." Id. Prior to the instant violation, Respondent previously received an administrative warning letter related to violations ofFAR 135.21(a) in December 2008. See Exhibit 9. At that time, Respondent conducted additional pilot training on completing Form EAI-301. Id. Despite the prior administrative action and remedial pilot training on completing Form EAI-301, Elite Air continued to violate FAR 135.21(a) by failing to properly complete Form EAI-301 on flights betweenJune 15, 2010, and August 12,2010. See Exhibits 6-8. These continuedviolations after prior administrative action suggests thebeginning ofatrend ofnoncompliance. See FAA Order 8900.1, Subsection (C)(4). Therefore, Order 8900.1 permits legal action, and the Complainant did notviolate any Orderby seeking a civilpenalty.

7

### CONCLUSION No genuine issue ofmaterial fact exists that Respondent violated its General Operations Manual whenit did not enterthe inspection due dates and times onFormEAI-301 on sevenPart 135 flights between June 15, 2010, and August 12, 2010. Therefore, the undisputed facts show that Complainant, notRespondent, is entitledto summaryjudgmentregardingthe FAR 135.21(a) violations alleged in the Complaint. Furthermore, the Complainant did not violate any Order by seeking a civil penalty for the FAR 135.2l(a) violations, as FAA Order 8900.1 permits the Complainant to seek a civil penalty in this matter Accordingly, Respondent's motion for sunnnaryjudgmentshouldbe denied. Respectfully submittedthis 28thday ofJune, 2012.

# ~»\-~ R AN M. LANDERS Attorney Office ofthe Regional Counsel

8

### CERTIFICATE OF SERVICE 

### I hereby certify that the Complainant's Response to Respondent's Motion For Summary Judgmenthas beenmailedthis date viaregular and certifiedmailto: FederalAviationAdministration (original andone copy) 800 IndependenceAvenue, S.W. Washington, D.C. 20591 Attention: HearingDocket Clerk, AGC-430 Wilbur WrightBuilding- Suite 2Wl000
The Honorable J.E. Sullivan Administrative LawJudge Office ofHearings, M-20, RoomEl2-320 U.S. DepartmentofTransportation 1200NewJersey Avenue, SE EastBuilding Ground Floor Washington, DC 20590
B. Gray Gibbs, Esq. 100 SecondAvenue South Suite 101-S St. Petersburg, FL 33701

# ~~AroEq)TAJf~y~ Legal Assistant Office ofthe Regional Counsel 

## JUN 2 8 Dated (one copy)

(one copy)

9ELITE AIR, INC. GENERAL OPERATIONS MANUAL
AIRWORTHINESS INFORMATION [135.23(e)] ELITE AIR, INC. STATUS SHEET (EAJ-106) E-1/R-43/29-Jan-2009



# I 

# D2012

In order to advise the flight crews of the maintenance status of

# tht'llfrt:~i~.l,itlJ(bf}~(ET Maintenance will publish EAI-106 Status Sheet, which Will be mainta1ned 1n the Aircraft Flight Log Book. The Director of Maintenance will be responsible for the creation and publication of this status sheet, but he may delegate that responsibility to other maintenance personnel. REVIEW OF THE STATUS SHEET (EAI-106) BY THE PILOT-IN-COMMAND As part of the preflight duties, the assigned Pilot-in-Command (PIC) will: 1. Note the dale and the aircraft time and compare them with the inspection due dates and times listed in the Elite Air, Inc. Status Sheet (EAI-1 06) which IS maintained in the Aircraft Flight Log Book These inspection due dates and times shall be entered by the PIC in the appropriate blocks on the Aircraft Flight Manifest (EAI-301). 2 Determine whether the flight or series of flights can be completed without any required inspection coming due before the aircraft returns to home base. The applicable inspections are listed below along with when they must have been previously accomplished. A. Any applicable inspection; B. Transponder, encoder, pitoVstatic system, and altimeter inspections and calibrations within the preceding 24 calendar months; C. ELT battery replaced on or before the date listed by the manufacturer or after one hour ofcumulative use, whichever comes**f~rst;** and D. Multi-engined aircraft weighing, and current empty weight and center of gravity calculation within the preceding 36 calendar months. 3. If the scheduled flight(s) cannot be completed without one of the aforementioned inspections becoming overdue, the PIC will immediately contact the Director of Operations (or designee) for instructions. Under no conditions will a PIC commence a flight if any required inspection time has been exceeded 4. Determine that for deferred and corrected mechanical irregularities the aircraft has been certified approved for return to service by an Airframe and Powerplant Mechanic or by the Director of Maintenance. · This certification will appear on the Aircraft Maintenance Log (See SectionS, Page S-7, Form EAI-AML).



### GOVERNMENT EXHIBIT 

# 'M-1EAI-301 Aircraft Flight Manifest Dates:(1) 

# Tail No. N(2)

G) ll...tdf.Jldlll 01811dlUft: I I"'+) 

### 0

## ~iii 

## :r:a 

## ' -z 

# ,**~**

# s:**"'~m** 

## z '"I 

### Rev. 12 

## 1**rov'~'** 

## 1No. XX-0000

## 1 Engine No. 

## I APU Hours

2C:Y<:les (10) (11)

Next Time Limited (43) Next Cycle Limited (44) Next Date Limited (45) VOR Check Due: (46)**~uy.,vv)** 

## G'· " 

## 0 

# 0 0**~** 

# m 4**I~~** Cl> 

# "' = ;:;;; G>m 

### mr 

## z- 

# mri1 :JJ;r:. ):>- r:JJ 

### 0:_ 

## .,z mO ;JJ.

# ~ 0 .Z (}) 

## s: ):> 

## z c

### ~



# :0 (})



# ...**~** ;JJ (,_, 

### '22**~** -:-,,, ,1i 

# '" 6 ;}**'=~** ,:._, 

# < 0 0 m 

# m 0ELITE AIR, INCc S-5/ R-42/15-May-2008 GENERAL OPERATIONS MANUAL 

### INSTRUCTIONS FOR COMPLETION OF EAI-301 1. Enter the date(s) offlights. 

### 2. Enter the tail numberof aircraft. 

### 3. Enterthe designated PIC for flight by indicating the first initial and last name. 4. Enter the designated SIC for flight by indicating the first initial and last name. If none is designated, then enter N/A. 5. Enter the total hours on airframe prior to flights from the previous flight log. Time is entered in hours and tenths. 6. Enter the total landings on airframe prior to flights from the previous flight log. 

### 7. Enter the total hours on Engine No. 

### 1 prior to flights from the previous flight log. Time is entered in hours and tenths. 

### 8. Enterthe total cycles on Engine No. 

### 1 prior to flights from the previous flight log. 9. Enter the total hours on Engine No. 2 prior to flights from the previous flight log. Time is entered in hours and tenths. 

### 10. Enter the total cycles on Engine No. 

### 2 prior to flights from the previous flight log. 

### 11. Enter the total hours and cycles for this series of flights. Time is entered in hours and tenths. Landings and Cycles are entered in whole numbers. 12. Enterthe beginning APU hours priorto flights. Time is entered in hours and tenths. Ifthe aircraft does not have an APU, enter N/A. 13. Enter the ending APU hours after this series of flights. Time is entered in hours and tenths. Ifthe aircraft does not have an APU, enter N/A. 14. Enterthe total of hours and cycles after this series offlights. 15. If necessary, enter the corrected hours and cycles (to be performed by maintenance or pilots at the direction of the Director of Maintenance). Time is entered in hours and tenths. Landings and Cycles are entered in whole numbers. 16. Indicate particular operating rules for that leg by circling either 91 or 135 

### 17. Enterthe date that particularflight began. 

### 18. Enter the time in Zulu that duty day began for that series of legs. Pilots need not fill this segment ifthe leg is preceded by other flights conducted during the same duty day. 19. Enterthe airport of original for that particular leg. 

### 20. Enterthe destination airport for that particular leg. 21. Enterthe time in Zulu that the aircraft begins taxiing. 

### 22. Enterthe time in Zulu thatthe aircraft takes off. 23. Enter the time in Zulu that the aircraft lands. 24. Enterthe time in Zulu that the aircraft stops taxiing. 

### 25. Enter the total hours of flight time for that leg. Enter the time in hours and minutes (e.g. 2+26). 26. Enter the total minutes of flight time for that leg. Enter the time in hours and minutes (e.g. 2+26). 27. Enter the total hours of block time for that leg. Enter the time in hours and minutes (e.g. 2+38) 28. Enter the total minutes of block time for that leg. Enter the time in hours and minutes (e.g. 2+38. 29. Indicate the pilot flying that particular leg by circling either PIC orSIC. 30. Enter the total instrument time forthat leg in tenths of hours. 31. Enter the type of instrument approach, i.e. ILS, VOR, NDB, RNAV. Visual approaches may be entered by the symbol "V." 32. Enter the time in Zulu that duty day ended forthat series of legs. Pilots need not fill this segment if the leg is followed by other flights conducted during the same duty day.ELITE AIR, INC. S..fi/ R-42/15-May-2008 GENERAL OPERATIONS MANUAL 

### 33. Last name of the lead passenger for that particular leg. If no passengers or freight is on-board during this fiight. the pilot should indicate by writing none or by indicating otherwise that it is an empty leg. 34. Number of passengers on-board. 35. Enter the maximum gross take 

### offweight for this leg., taking into consideration all limitations, including such limitations as temperature, airport elevation, runway length, landing weight at destination airport. 36. Enter the actual take 

### offweight for this leg if a Part 135 leg. Enter N/A ifthe leg is Part 91 leg 37. If the leg is a Part 135 leg, enter the actual computed center of gravity for the leg. Enter N/A ifthe leg is a Part 91 leg. 38. If the leg is a Part 135 leg, enter the actual forward center of gravity for the leg. Enter N/A ifthe leg is a Part 91 leg. 39. If the leg is a Part 135 leg, enter the actual aft center of gravity for the leg. Enter N/A ifthe leg is a Part 91 leg. 40. Enterthe fuel (in pounds) on board at engine start. 41. Enterthe fuel (in pounds) on board at engine shutdown. 42. Enterthe fuel burn (in pounds) for the leg. 43. Enter the time in hours and tenths for the Next Time Lirnited Item due from the Status Sheet (EAI-106). 44. Enter the number of cycles in whole numbers for the Next Cycle Limited Item due from the Status Sheet (EAI-106). 45. Enter the date for the Next Date Limited Item due from the Status Sheet (EAI-106). 46. Enter the date that the VOR check is next due. 47. Enterthe facility used to conduct the VOR ops check ifchecked. 48. Enterthe frequency ofthe facility used to conduct the VOR ops check ifchecked. 49. Enter the bearing to orfrom the facility forVOR Receiver#1. 50. Enterthe bearing to or from the facility forVOR Receiver#2. 51. Enterthe difference between VOR Receiver #1 and VOR Receiver #2. 52. Enter the due date for the next VOR ops check, i.e. thirty calendar days from the date ofthe check.U.S. Department ofTransportation Federa! Aviation Administration
A008
. Operational Control Operations Specifications
HQ Control: 10/19/2009 HQ Revision: 030



### a. The system described or referenced below shall be used by the certificate holder that conducts operations under 14 CFR Part 135 to provide operational control for its flight operations.

### Th&~W**t·''~ih** elements ofoperational control described in subparagraph d. below must be included or

### descr!b·~~ ilt.A:bi.,.,"i' system.**T~e** system ofoperational control is described in Section A ofthe General Operations**Manu~~~EJite:l!** ,, Air. Inc. 

### t:l\, 

## d

b. Certificate Holder Responsibilities: (I) The certificate holder retains all responsibility for the operational control ofaircraft operations, and thus the safety ofeach f1ight conducted under this certificate and operations specification, including the actions or inactions ofall direct employees and agents ofthe certificate holder. (2) This responsibility is not transferable to any other person or entity. (3) The certificate holder's responsibility for operational control supersedes any agreement, contract, understanding or arrangement, either oral or written, expressed or implied, between any persons or entities.

c. The certificate holder may not engage in any ofthe following practices and shall not: (l) Franchise or share the certificate holder's authority for the conduct ofoperations under its certificate and operations specifications to or with another person or entity. (2) Use a "Doing Business As,. (DBA) name in any way that represents an entity that does not hold an air canier or operating certificate and operations specifications as having such a certificate and operations specifications. (3) Engage 

### in a Wet Lease Contrary to 14 CFR Section 119.53. In accordance with Section ll9.53(b), the certificate holder may not wet lease from orenter into any wet leasing arrangement with any person not authorized by the FAA to engage in common carriage operations under 14 CFR Parts 121 or 135 (as appropriate), whereby that other person provides an aircraft and at least one crewmemberto the certificate holder. A lease, or other business- arrangement with a lease, is considered a wet lease ifany ofthe following conditions exists: (a) The certificate holder and the aircraft owner/lessor agree that the certiftcate holder is required to use the aircraft owner's/lessor's pilot in Part 135 operations, (b) The aircraft owner/lessor is obligated to furnish pilots to the certificate holder to operate the aircraft, or, (c) The aircraft owner/lessor has the power to veto who the certificate holder will use to pilot the aircraft in Part 135 operations, so as to limit the certificate holder to using only the owner/lessor's Print Date: 1/5/2010 Certificate No.: EOYA592J 

# 11l 2012

A008-l Elite Air, Inc. 

# ....

# -.... GOVERNMENT EXHIBIT 

# FM·'IU.S. Department ofTransportation FederalAviation Administration pilots. Operations Specifications

(4) Transfer, surrender, abrogate, or share operational control responsibility with any party. (5) Engage in any arrangement with an aircraft owner, lessor or any other person or entity, such as an aircraft management entity, which allows the use ofan aircraft for operations under these operations specifications without a complete, effective and sustainable transfer ofoperational control to the certificate holder for all Part 135 operations conducted under these operations specifications. d. Elements ofOperational Control. The following items are essential elements ofoperational control and are required to be components ofthe operational control system, used by the certificate holder, and as described or referenced in subparagraph a. above: (I) Crewmember Requirements. The certificate holder may not conduct any operation under Part 135, unless each ofthe certificate holder's crewmembers is: (a) The certificate holder's direct employee or agent during every aspect ofthe Part !35 operations, including those aspects related to any pre-flight and post-flight duties. The certificate holder is accountable for the actions and inactions ofthese persons during all its aircraft operations. (b) Currently trained and/or tested, qualified, and holds the appropriate airman and medical certificates to conduct flights for the certificate holder under Part I35, and is otherwise qualified to accept the specific flight assignment, considering flight and rest requirements, airspace qualification and the type ofoperation intended in the assignment. Each pilot must be specifically listed by name and airman certificate number on a list ofpilots maintained by the certificate holder at its main base of operations or listed in operations specification A039 orA040, ifapplicable. This information must be available for inspection by the Administrator as specified in Section I35.63. (2) Aircraft Requirements. The certificate holder may not conduct any operation under Part 135 unless each aircraft used in its Part 135 operations is: (a) Owned by the certificate holder and remains, without interruption in the certificate holder's legal and actual possession (directly or through the certificate holder's employees and agents) during all ofits Part 135 flights; or (b) Leased by the certificate holder or otherwise in the legal custody ofthe certificate holder and remains in the certificate holder's exclusive possession or custody during all ofits Part 135 flights. (c) Foreach aircraft which the certificate holder uses under these operations specifications, the aircraft owner or otherlessee ofthe aircraft may operate the aircraft under Part 91, under the control and responsibility (including potential liability for an unsafe operation) ofthe owner or other lessee, as long as the following condition is met**~The** certificate holder ensures that the maintenance ofthe aircraft continues to adhere to the certificate holder's maintenance program at all tjmes or,

- When the aircraft is returned to the certificate holder but before the aircraft is operated under Part 135 again by the certificate holder, that aircraft undergoes an appropriate airworthiness conformity validation check. (3) Exclusive Aircraft Use Requirements for Part 135 Operations. At least one aircraft that meets Print Date: 1/5/2010 AOOS-2 Elite Air, Inc. Certificate No.: EOYA592J

## Inspector Statement On September I2, 20I0 Iperformed a ramp inspection on CessnaCitation N444CW at Sanford FL. During the course ofthis inspection I 

## observed that Elite Air was operating N444CW andnot following the procedure set forth in the General Operations Manual (GOM) pertaining to the determination ofaircraft airworthiness inspections priorto flight. The GOM requires the Director ofMaintenanceto issue a maintenance inspection status sheet form (EAI- I

## 06) and for the Pilot in Command to review the aircraft status and transferthe inspection due times to the flight manifest form (EAI-30I). 

## This procedure was not being followed by Elite Air personnel. N444CW was operated on a series of7 

## flights underFAR I

## 35 between 6/15/20 I

## 0 and 8/12/20I

## 0. When Iquestioned the Maintenance ManagerMr. Paul Becktal about why this procedure was not being followed he stated he was unaware ofthe Elite AirGOMrequirement for this procedure and used a different method ofchecking the status ofinspections, specifically the Cescom aircraft status report. He stated he wouldtake the matter up with the Elite Air DirectorofMaintenance.

# fo/~~- William D. Meenan PMI

GOVERNMENT 

### EXHIBIT 

# EM-'tU.S. Department ofTransportation Federal Aviation Administration

D085
. Aircraft Listing Operations Specifications

HQ Control: 02/0611998 HQ Revision: 02a

a. The certificate holder is authorized to conduct operations under 14 CFR Part 135 using the aircraft identified on this operations specification. Registration No. N789LB N!OIUD N50DS N458HC N444CW N383MB N994GP N6GD N3210N N761XP N773HR N288FF N929JH N996JS NI73DS N42LG

Print Date: 7/14/2010 Serial No. Aircraft M/M/S 258248 20220 9140 RJ 058 64 5568 105 14500983 HB-10 25876t 258836 3IA-108 3lA-132 31A-119 45-2092 RB-259 BAE-125-800A BD-100-IAIO BD-700-IAII BE-400-400 CE-650-CITAT!ON Ill CL-600-2816 DASSAULT-FALCON-2000EX EMB-135-BJ HAWKER-750 HAWKER-850XP HAWKER-850XP LR-3 1-A LR-31-A LR-31-A LR-45-45 RA-390-390

0085-1 Elite Air, Inc. Certificate No.: EOY 

### GOVERNMENT EXHIBIT 

# FM-sI:.LII 1:. ( ', IN(.;. 

### GENER:. -OPERATIONS MANUAL S-4/R-36/15-SEP-20{
-
•o; 

# TF>1c ;:Cus. I No.: CW-00105 SIC**1~0-A-£:** lZtve, k" I---
---**---~**

Dates 0 / 1

# s[r

# o 

# ITail No. N444CW



# --------- I**-···~···y**

# _I ·Er:igtn-e No. Engfl-le 

# No. APU Hours Hours 

## I Landinas No.1 Hours 2 Hours 2

# t----•· ToDate:

## -~=(1\Q__._\__ 

# I ( 9

### Z.4-l 

# I 70]75? 

# I**(,2~5;** _\_(,l'tJ ") 

# I G11:Z. 

### Th1s Page: 

# --r-)_. :s 4- :< ' 1

### t- 1 

### ;,z ' 

### 4- I

### otal: 

# I lll l 

### .'-t

## ~--&"-~-~-~ 1 1oiL 1 

# I lo..JJU 

## I & -7'1 s 

### '6 

# I (o 

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# FM·aU.S, Department ofTransportation Federal Aviation Administration 

### December 17, 2008 North Florida FSD0-15 Flight Standards District Office Citadel Jntemational, Suite 500 5950 Hazeltine National Drive Orlando, Florida 32822 (407) 812-7700 Fax: (407) 812-7710

# ~
CERTIFIED MAIL- RETURN RECEIPT REQUESTED File No.: 

### 200850150300 Mr. B. Gray Gibbs President Elite Air, Inc. 100 Second Avenue South, Suite 101S St. Petersburg, Florida 33701 Dear Mr. Gibbs: 

### An aircraft records review conducted by this office on September2, 2008, revealed that aircraft model EMB-135-BJ, registration number N6GD, serial number 14500983, was Part 91 and Part 135 operations from August 11, 2008 through August 26, 2008 while the**!-.:,__.!;......~** 

### flight manifests indicated that atime-limited inspection item was overdue This inspection, Service Hydraulic System Reservoir- Replenishment, Task 12-13-01-61 001-AOO, was actually accomplished early. A total of 18.6flight hoursaccumulated**hF>t'nr.,J,-~-~­** 

### flight manifestwas updated with the correct next-due time. The flight crews initiated a with information that an inspection could be overflown and then continued the flights information that an inspection had been over flown, contraryto 14 CFR 

### § 135.21(a). This is to confirm ourdiscussions with you from September 30, 2008, atwhich time

# correc:~Foo;.-;;,;;;­ action was begun. You conducted pilottraining in the completion ofyourAircraft Flight Manifest (EAI-301) and you revised,your manual to clarify procedures and responsibilities the Status Sheet (EAI-106). The Elite Air, Inc. General Operations Manual, revision 43**dat~;;:,;;:-;;,:;"oo::;,­** 

### November 15, 2008, was submitted on November20, 2008. In closing this case, we have given consideration to all available facts and concluded that matterdoes notwarrant legal enforcement action. In lieu ofsuch action, we are issuing**thif,.----~** 

### letterwhich will be made a made a matter of record. Sincerely,

.



# ORIGINAL 

# S:!GNED BY Thomas W. Gross Principal

### Mai~tenance Inspector Q:\TYPING\UNIT2\GROSS\Eiite\N6GD\n6gdltrcorr.do•rn D Return Receipt Fee**~** (Endorsement Required)

FAA Form 1360-14.1 (6-89) OFFICIAL FILE COPY Rastrlcterl DenVS!Y- Fee

### f------J D (Endorsement Required) 

### rn 

### f---------1**~** 

## MR':'"W!"<>UitA.T

### 1/14/10 8900.1 CHG 83
VOLUME 14 COMPLIANCEAND

# ENFORCE~E 

# r tvE0 CHAPTER 1 INTRODUCTIONTOINVESTIGATIONAND COMPLIANCERELATED TASKS 

# l tJ 

# 2012 Section 8 EnforcementDecisionProcess 14-140 GENERAL. This section establishespolicyfor theFlight

# Stan~~J;f/~~~~~ii~},.~fJCKET replacingthe EnforcementDecisionTool (EDT) withtheEnforcementDecision Process (EDP). EDP corrects deficiencies in the EDTpolicy andworksheetthatwereidentified during a nationwide evaluation ofhowAFS enforcement personnel applied theEDT. Thispolicyprovides an eight-step electronictemplate/worksheet, theElectronicEDP (E-EDP) (Figure 14-11), for enforcementpersonnelto use to determinethe appropriate action (legal, administrative, informal) totakefor noncompliancewithregulatory requirements. The change simplifies the EDP,reduces redundancies, andprovides examplesto facilitate completionoftheE-EDP worksheet. Thispolicy andworksheet conform totheFAAEDPguidelinesin FederalAviation Administration (FAA) Order2150.3, Compliance andEnforcementProgramAppendixF, current edition. This policy applies to all AFS personnel involved in compliance and enforcementtasks. 14-141 TASKPREREQUISITESAND SIGNIFICANTINTERFACES. Aviation safety inspectors (ASI) musthaveknowledge oftherequirements ofTitle 49 ofthe United States Code (49 U.S.C.); Title 14 ofthe Code ofFederalRegulations (14 CFR); and AFS policies. A. SignificantInterfaces. Thisprocessrequires coordination and/or interface withthe following:

• Field officemanagementteam; • Flight StandardsDivision; • Office ofRegional Counsel; • EnforcementInformation System (EIS); • CivilAviationRegistry; • AccidentIncidentDataSubsystem (AIDS); • SafetyPerformanceAnalysis System (SPAS); and • ProgramTracking andReporting Subsystem (PTRS). B. References (currenteditions). This process requires access to:
• Title 14 CFRparts I through 193, • FAA Order2150.3, • FAA Order 8900.1, Flight Standards InformationManagement System (FSIMS), • PTRSProceduresManual (PPM), • Title49 U.S.C. Chapter447, andChapter463. C. Forms.None. D. JobAids.This process requires accesstotheE-EDPworksheet. 

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### 1/14/10 8900.1 CHG 83
E. Additional Guidance. 

### Authorization and additional guidance for thisprocess is in FAAOrder 2150.3. 

### F. PTRS Activity Code.

### This processrequirestheuse ofthe following PTRS activity codes as appropriate: 1) TaskActivity Codes-1734/3734/5734 (INVESTG/ENFRCMNT/lNFORMAL ACTION).2) TaskActivity Codes-1733/3732/5732 (INVESTG/ENFRCMNT/ADMIN ACTION). 3) TaskActivity Codes-1732/373115731 (INVESTG/ENFRCMNT/LEGAL ACTION).4) On-the-jobtraining (OJT) InstructorActivity Code--!024/3024/5024 5) OJTTrainee Activity Code---1023/3023/5023. 14-142 DEFINITIONS. A. Act. An

### overt action and includesthefailure totake an action. B. 

### AdequateDeterrent. 

### The AFS action is reasonably likelyto discourage the alleged violator and others similarly situatedfrom committingthe same orvery similar conductfor the foreseeable future. C. AdministrativeAction. 

### A letterofcorrection or a warningnotice. D. ConstructiveAttitude.

### The allegedviolatoracts in a positivemannertoward regulatory requirements, cooperateswith AFS investigativepersonnelto achieve compliance, and willinglytakes actions necessaryto come into and maintain compliance. 

### E. Inadvertent. An 

### actthatis theresult ofboth inattention and lackofpurposeful choice. A violation is inadvertent when itdoes notresult from analleged violator's conscious decisiontotake, or nottake any actionthat could have prevented the apparent violation. F. InformalAction. 

### Oral orwritten counseling ofindividuals or entities for regulatory noncompliance, documentedinPTRS. G. Hazard.

### A condition that could leadto injury orproperty damage. H. LackofQualification. 

### A certificateholder lacksthe skills and competency, or care, judgment, and responsibilitynecessary to hold that certificate. Where a certificateholder commits a violation indicating a lackofqualifications to holdthecertificate, the FAAtakes legal actionto revokethe violator's certificate.

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### 1114110 8900.1 CHG 83


### I. Likelihood. Theprobability (frequent, occasional, orremote) ofthe worsttype of injury or damagerealistically (andpotentially) occurring, consideringthe actual facts specificto eachcase. 

### J. 

### LegalAction. Enforcement action otherthan administrative action or informal action. K. 

### On-the-Spot. Corrective action for a low-riskviolation is completed on-the-spot when aviolation(s) is identifiedby the FAAandcommunicatedto anindividual or company. 

### L. Remedial Training. A program authorized in Order2150.3, Chapter 5that AFS inspectors use for certificated airmen whenremedialtraining is the appropriate action totakefor a violation. 

### M. SafetyRisk. The level (high, moderate, or low) ofpotentialinjury orproperty damage from a hazard createdbyan act, consideringthehazard severity andthe likelihood that the potential severitywill be realized. 

### N. Severity. The worsttype ofinjury ordamage (catastrophic,**critica~** 

### marginal, or negligible) thatcouldrealistically (andpotentially) occurfrom a generic violation ofthe type involved in the subjectviolation. A generic violationrefersto thebasic act or failure to act, absent any specific facts or circumstances. 

### 0. SubstantialDisregard for Safety or Security. 1) In

### the case ofa certificate holder, thatthe actwas a substantial deviation from the degree ofcare,judgment, and responsibility normally expected ofapersonholdingthat certificatewiththattype, quality, and level ofexperience, knowledge, andproficiency. 2) Inthe case ofa violatorwho is not a certificateholder, substantial disregard meansthe actwas a substantial deviation from the degree ofcare and diligence expected ofa reasonable person in those circumstances.

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### 1/14/10 8900.1 CHG 83 

### Figure 14-10,Process Flowchart-AFSEnforcementDecision Process

No 

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# or-~**'------~/**



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## ·---

A. Application oftheE-EDPWorksheet. AFS investigativepersonneluse the E-EDP afterthey have gathered sufficientevidence and otherrelevant informationto analyzethe facts andcircumstances ofthe apparentviolation underthe administrative action criteria and, if necessary, categorize its safetyrisk. 1) To applytheEDP,AFS enforcementpersonnel usethe AFS E-EDPworksheetto analyzethefacts and circumstances (appropriateto each step) disclosedbyan investigation or identifiedduring an inspection. 4 UNCONTROLLEDCOPYWHENDOWNLOADED Checkwith

### FSTMS to verifY current versionbeforeusing

### 1/14/10 8900.1 CHG 83 2) AFS enforcementpersonnel documenttheir completion ofthe E-EDP inPTRS usingthe code appropriate for the enforcement action taken. 3) Inspectors must complete the AFS E-EDP worksheet for all violations, except: a) Enforcementpersonneltake administrative action or informal actionfor low-riskviolations corrected onthe spot. Forexample, inspection findings ofan incomplete field onan otherwise satisfactorily completed (and required) record or form, or a missing logbook entry for work-in-progress areusually low-riskviolations. Placement ofinformationbythe alleged violator inthe incomplete field, orcompletingthe requiredlogbookentrymight suffice as an on-the-spotcorrection forthese kinds oflow-riskcases. When a certificateholder corrects low-riskviolations onthe spot, it is acceptable to use administrative action orinformal action (oral orwritten counseling) afterthe correctionto close these violations. NOTE: Completion andretention ofanE-EDP worksheet is notrequired for low-riskviolations corrected onthe spot; however, ifinspectors accept an on-the-spotcorrection they mustperform an E-EDPrisk analysis before closing the caseto confirmthattheviolationwas low risk. (Referto stepsthree, four, and five ofthe E-EDP worksheet.) b) Casesthat are accepted and closedundertheAviation SafetyAction Program (ASAP) with administrative action or informal action. NOTE: Although completion ofthe E-EDP worksheet is notrequired for violations accepted underASAP, before 

### informalaction canbeusedto close an ASAP case, an affirmative response is required to E-EDPworksheet step two, criterionnumberthree-the 

### apparentviolationdoes notindicate a lackof qualification. In addition, the violation

### mustbe 

### low risk, determined byapplying E-EDPworksheet steps three, four, and five. B. 

### DetermineWhetherthe Caseis CategoricallyExcluded From theE-EDP. AFS investigativepersonuel determine ifthe apparentviolation involves any ofthematters described in subparagraphs I)through 7) below. Iftheviolation involves any ofthese matters, the case is categorically excludedfrom the EDP. NOTE: Ifthe excluded case warrants legal enforcement action, enforcement personuel complete steps one andeightofan E-EDP worksheet for inclusion in sectionB ofthe EnforcementInvestigationReport (EIR) indicatingthatthe subject case was categorically excluded. I) Apparent violations that are disclosed under andmeetthe criteria oftheVoluntary Disclosure ReportingProgram (VDRP) are handledperVDRP guidance. 2) A case involving a substantiated lack ofqualification, orquestionable qualification. Forexample: a) Positive drug andalcohol testresults. 5 

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### 1/14/10 8900.1 CHG 83 b) Failingto successfully complete a reexamination. c) Failingto possessthe skills and competencyrequired for the certificateheld. d) Refusingtopermit and/or submitto an inspection,reexamination, or a drug or alcohol test. e) Intentionally falsifying arecord or application. f) 

### Cheating on awritten examination. 3) Criminal activity, such as narcotics convictions. 4) Special-emphasis enforcementprograms, such as temporary flightrestriction violations. 5) Operating withouthavingbeenissued a requiredcertificate, rating, orother required andvalidauthorization, suchas a 14 CFRpart61, § 61.58 pilotin commandproficiency check. 6) Apparentviolation(s) byamilitarypilotthat are referred tothe Departmentof Defense. 7) Apparentviolation(s) by a foreign pilotthat are referredtotheDepartmentof State. 

### C. DetermineifAll Criteria for Taking Administrative or InformalAction Have BeenMet. Ifa case is not categoricallyexcludedfrom the E-EDP, thenAFS investigative personnel determinewhetherthe apparent violation meets the criteriafor taking administrative action orinformal action. Beforetaking either administrative action or informal action for an apparentviolation, AFS investigative personnelmust determine ifall ofthe criteriahavebeen met. NOTE: Criteriafor informal action andadministrative action arethe same. 1) IfAFS investigativepersonnel determinethatan apparent violation does notmeet all criteria, thentheymustrecommendthe appropriate legal enforcement action forthe violation(s), unless division managementapproves a deviation in accordance with subparagraph 14-143F. 2) AFS investigativepersonnel indicate onthe AFS E-EDPworksheetwhetherall criteriafortaking administrative action or informal actionhave been met. 3) lfany ofthe criteriahavenotbeenmet, AFS investigativepersonnelindicate whichcriteria werenotmetandexplain why onthe E-EDP worksheet. 4) Belowis an abbreviated list ofthe criteriafor taking administrative action or informal action; a complete discussion ofthese criteriais Order2150.3, Chapter 5. 6 

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### 1/14/10 8900.1 CHG 83 a) Legal enforcement action is notrequiredby law. Forexample, 49 U.S.C., section44710 mandates thatthe FAArevokethecertificate ofany airmanwhois convicted ofa drug-relatedoffense wherethe underlying offense involves theuse ofan aircraft. Forthese cases, the FAAmaynottake administrative action, oreven pursue legal enforcement actionto suspend the airman's certificate, but insteadmustpursue legal enforcement actionto revoke the violator's airman certificate. b) Administrative action would deter future violations. c) The apparent violation does not indicate a lack ofqualification. d) The apparentviolationmusthavebeeninadvertent. A violation is inadvertent whenitdoes notresult from an alleged violator's conscious decisiontotake ornottake any action thatcouldhavepreventedthe violation. For instance: I. 

### (Airworthiness): A mechanic improperlyperformsmaintenancebecause he or shemisreads an instructioninthe maintenance manual has acted inadvertently. 2. 

### An aircarrierwhooperates an aircraft with animproperly deferred componentbecause ofgenuinemiscommunicationwith maintenance control has acted inadvertently (e.g., themaintenance controllermisheardthe discrepancyreported). 3. 

### (Operations): A pilotmisses a checklist item because ofan airtraffic controlcommunication. 

### 4. Unruly or intoxicatedpassengers, orpassengers who smoke aboard an aircraft, actpurposefully, andtherefore, have notacted inadvertently. e) The apparentviolation does notinvolve a substantial disregard for safety or security. Substantial disregardfor safety or securitymeans in the case ofa certificateholder, that the actwas a substantial deviation from the degree ofcare,judgment, andresponsibility normally expected ofa personholdingthatcertificate withthattype, quality, and level ofexperience, knowledge, andproficiency. Inthe case ofa violatorwhois not a certificateholder, substantial disregard means the act was a substantial deviation from the degree ofcare and diligence expected ofa reasonable personinthose circumstances.Forinstance: 

### I. (Airworthiness): Failingto consultthe maintenancemanual andthen conducting an incomplete orimproper inspection ofa criticalrequired inspection item. 2. 

### (Operations): A Commercial-ratedpilottaking offat a busy controlled airportwithouthaving receivedtakeoffclearance. 3. 

### (Airworthiness, no certificateheld): A maintenance controllerinstructs a line mechanic to defer a discrepancy using a specific minimum equipmentlist item number with knowledgethatthe system orcomponent deferred is not inoperative. 4. 

### (Operations, no certificateheld): An uncertificated flight school operates its aircraftwithout conducting an annual inspection for 3years. 7 

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### 1/14/10 8900.1 CHG 83 f) The circumstances ofthe apparentviolation were not aggravated. Aggravated circumstances arethose thatmake or couldmaketheviolationworse, more serious or the potential outcome more severe. Forinstance: 1. In

### a case involving an intentionalviolation withpassengers on board, both the intentional misconduct, andthe fact thatpassengerswere onboard are aggravating circumstances. 2. 

### (Airworthiness): Fora mechanic who performs an annual inspection improperly, the circumstances are more aggravated iftheFAA later identifies 30 separate discrepancies, than whentheFAA finds only 2. 3. 

### (Operations): For apilot who operates an aircraftthat is not inan airworthy condition, the circumstances are more aggravatedwherethe unairworthy condition presents a safety-of-flightissue, thanwherethe condition is a technical nonconformityto the aircraft'stype design. g) The alleged violatorhas a constructive attitude toward compliance. Constructive attitudemeans thatthe alleged violator acts in a positive mannertowardregulatory requirements, cooperateswillinglywithFAApersonnel to achieve compliance, andwillingly takes actionsnecessaryto come into andmaintain compliance. h) The apparentviolation doesnotindicate a trend ofnoncompliance. A trend of noncomplianceis indicatedbyaviolation historythat caninclude legal enforcementaction(s), administrative action(s) and/or informal action(s). Tfthe violationsresulted from the same repeatedmisconductbyan individual, orbythe samedepartment, section or group ofa small entity'sorganization,thenthe subsequent violationmight suggest a disregard for the regulations andthe beginning ofatrend ofnoncompliance. Inthis case, administrative action orinformal action is not appropriate. 

### D. AnalyzingRisk. AFS investigative personnel analyzethe riskofanapparent violation only ifall criteriafor administrative action orinformal actionhavebeenmet. 1) To determine the level ofrisk, AFS investigativepersonnelfirst categorizethe potential severity and aetna! likelihood ofthe hazard, that is, the dangerous condition, created by the apparent violation(s). 2) Theuse ofthe term severity inassessing risk always means the worsttype of injury or damagethatcouldrealistically (andpotentially) occurfrom anyhazardous condition. It 

### is notbasedon the actual outcome ofany act orviolationbut, as previously stated, must reflect the worsttype ofoutcome that could realistically (and potentially) occur. Forthis reason, AFS investigativepersonnel consider onlythe potential outcome, notthe actual outcomeresulting from the act(s) orfailure to actrelevantto the subject violationwhen categorizing severity. 3) Determining Severity. Basedontheexplanation stated above severity is the worst type ofinjury or damage that couldrealistically (and potentially) occurfrom a generic violation. A generic violation referstothe basic act orfailure to actwithout considering any specific facts 

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### 1/14/10 8900.1 CHG 83

or circumstances. Forexample, an altitude deviation, a runway excursion, improperlyperformed maintenance, flight and duty recordkeeping, etc. The following guidelines applytothe determination ofseverity: a) To determine severity, AFS enforcementpersonnel do not considerthe specific facts ofthe case; the specific facts ofthe case are considered only when determining likelihood. b) Severity and likelihoodare determined separately, and severity mustbe determinedwithout consideringthe likelihood ofthat severity (or outcome) being realized. For example, ifa plausible argument canbe made that a hazard couldunder some circumstances result indeath or severe damage, thepotential severity is catastrophic, in spite ofthe fact that such an outcome from the hazardmightbe extremelyrare, orwould not (realistically) occur. c) The most commonerror in determining severityis prematurely considering the facts and circumstances ofa case. d) Severity canbe one ofthe following:

o 

### Catastrophic (deathor severe damage);
o 

### Critical (severe injury or substantial damage); • Marginal (moderate injury ordamage); and • Negligible (minor orno injury or damage). e) When determining the potential severity ofanapparentviolation, the existence offortuitous circumstances is notconsidered. The following is an example of fortuitous (by chance) circumstances andthe determination ofseverity: An altitude deviation from an ATC clearancehas the same potential outcome (catastrophic, dueto a mid-aircollision) regardless ofwhetherthere was anotheraircraftthat cameinto conflict ornot. For any altitude deviation violation, AFS enforcementpersonnelmust consider what istheworsttype ofinjury or damagethatcouldrealistically happen ifan aircraft deviates from its assigned altitudewithout consideringtheweather, obstructions, othertraffic in the area, thetime ofday, or other similar circumstances. The absence ofanother aircraft coming into conflictis a fortuitous circumstance. f) 

### Other examplesrelevantto the categorization ofseverity: 1. 

### A fuel exhaustion occurrencehasthe same potential outcome (catastrophic) irrespective ofwhether an actual accidentresulted. 

### 2. A pilotwho operates afterhis orhermedical certificate expires has the same potential outcome (catastrophic), irrespective ofwhetherhe or she has anactual medical condition. · 3. 

### Failingto maintain accurate and currentflight- and duty-time records has the same potential outcome (catastrophic) irrespective ofwhetherthe pilot were actually fatigued atthetime oftheir operation.
9 

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### 1/14/10 8900.1 CHG 83


### 4. The operation ofan aircraftpastthe time limit for conducting arequired inspection has the same potential outcome (catastrophic) irrespective ofwhether an actual airworthiness conditionwas not corrected onthe aircraft as aresult ofthe missed inspection. 5. Failingto carry a load manifest onboardthe aircrafthas the same potential outcome (negligible) irrespective ofany other factors becausethe failure to do so doesnotcreate a safety-of-flight condition. 6. 

### Operating an aircraftwith an antennathatwas improperlyrepairedwith speedtape has the same potential outcome (catastrophic) irrespective ofwhetherthe speedtape interferedwith its operationorrenderedthe antennainoperative. 7. Failingto make an entryinthe aircraftmaintenance logbook after installation ofa repaired componenthas the same potential outcome (negligible) irrespective of other factors. 4) DeterminingLikelihood. Likelihood is the probability ofthe worsttype ofinjury ordamage realistically occurring, consideringthe specific facts ofthecase. In other words, AFS investigativepersonnel determinehowlikely it isthatthe potential severity would actually be realized, giventhe facts andcircumstances involved. a) Likelihood can be one ofthe following: 1. 

### Frequent (likely to occur often). 

### 2. Occasional (likelyto occur sometimes). 

### 3. Remote (unlikelyto occur, would seldom occur, or so unlikely, one can assume the potential severity (outcome) would not occur). b) Examples ofhowthe facts ofa case affect likelihood: 1. 

### Fora restricted airspace incursion, the likelihood becomes higherthe longerthepilotoperatedintherestricted airspace, thefarther into the airspacethepilot penetrated, andthe greaterthenumber ofother aircraft in the area. 2. 

### Foroperating an aircraftpast a required inspection, the actual likelihood becomes higher the moretime thathas passed since the inspection was due, andthe moretime betweeninspections (1

### 00-hour v. annual). Also, the actual likelihoodwill be higherwhere the aircrafthas an actual safety-of-flightairworthiness conditionthat wouldhave been corrected had the inspectionbeencompletedwhen required. 

### 3. Forfailing to maintain current flight and dutyrecords, the actual likelihoodwill behigherfor anactivepilotwhohas no flighttime records, orflies many hours pastthe flight time limitations, than for apilotwho flies a small amountoftime pastthe flight time limits, or doesnotexceed the flighttime limits.

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### 1/14/10 8900.1 CHG 83


### 4. Foroperating an aircraftwith aninoperative cargo restraintcomponent, the likelihood will be less likely wherethe cargo weightdoes not exceedthemaximum weight for operatingwith one restraintinoperative, and willbemore likely wheretheweightis excessive, or multiple restraints are inoperative. 5. 

### Foroperating without complyingwithAirworthiness Directives,the likelihoodwill be higherwhenthe aircraft is operatedmanyhours beyondthe compliance date than for an aircraftthat is operated a small amount oftimepastthe compliance date. 6. 

### For improperly performing maintenance, the likelihoodwill be more likely the more egregiousthe error andthe greaterthe impact on safety-of-flight. 7. Foroperatingan aircraftwitha very-highfrequency antennathathad been improperlyrepairedwith speedtape,the likelihood will be less likelyifthe aircrafthad three separate communication systems, andthe improperlyrepaired antennawasconnectedto only one ofthose systems. 5) Determinethe SafetyRisk andtheAppropriateEnforcementAction. TheRisk Assessmentand ActionMatrix, in Figure 14-11, E-EDP Worksheet, helps determinethe level of risk (high, moderate, orlow) for an apparent violation andthe necessary corresponding enforcement actionthe FAA shouldtake after severity and likelihood have beendetermined. 

### E. Remedial Training. AFS investigativepersonnel must address an apparentviolation by an airmanwithremedialtrainingprovided all criteriafor taking administrative action/informal action are met, the apparentviolationpresents ahigh safetyrisk, and all criteria for offeringremedial training are met. Referto Order 2150.3 Chapter 5 for a complete description oftheremedial training process. The criteriafor offeringremedialtraining are as follows: 1) Future compliance canbe reasonably ensuredthroughremedial training alone. 2) The airman exhibits a constructive attitude thatwould leadthe inspectorto believethe airman has a willingnessto comply, so noncompliance is less likelyin the future. 3) The conduct doesnot disclose a lack of, or reasonable basis to question, the airman's qualifications. 4) The airman'srecord ofenforcement actions doesnotindicatethatremedial training would be inappropriate. 5) The conductis notdeliberate, grosslynegligent, or criminalin nature. NOTE: Tfthe airmanhas not respondedtothe remedialtrainingLetter of Investigation within 10 days ofreceipt, initiate legal enforcement action. Flight Standards District Officemanagementhas latitudeto extendtheresponseperiod beyond l0days in extraordinary circumstances.
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### 1/14/10 8900.1 CHG 83
NOTE: Remedialtraining cannot be used for airmen usingtheir certificate in air transportation (aircarrier operations) atthetime ofthe violation. 

### F. Deviation From the Matrix (if

### applicable). Enforcementpersonnel may determine that a case warrants a deviationfrom the enforcementaction indicatedbythe Risk Assessment and ActionMatrix. IfAFS investigative personnel selecta type ofactionotherthanthat indicated by thematrix, then theymustprovide ajustificationand have approval ofthe division manager or equivalent. Refer to Order2150.3, Chapter 5 for more information on using administrative action whenthe required criteriaare notmet. Thefollowing are examples of where a deviation from thetype ofaction indicatedbythe matrixmight bejustified: 1) In certain cases, where abusiness commits an apparent violationthatmeetsthe criteriafor administrative/informal action, butpresents ahigh safety risk, administrative action in the form ofa letter ofcorrection maybe more appropriateto improve the operator's system for system safety benefits, even thoughthematrixdirects legal action. Forthese cases, the potential safety benefits ofa structured corrective action process that incorporates a corrective action plan mightbepreferableto respondtothehigh safety risk. 2) Administrative action maybemore appropriatewherethe criteriafor administrative/informal action are notmetbecause an individual's apparentviolationwas not inadvertent, butthere is negligible safety risk involved. Forexample, an apparentviolationbya pilotwho operates an aircraftwithout apilot certificate inhis orherpossession,butis qualified and currentto operatethe aircraft, maybemore appropriatelyaddressed with a warningnotice, asthe violation does not endangerthe aircraft or any occupants. 3) The investigating office could also recommend thatadministrative actionwould notbe appropriate andthatthe FAAshould take legal enforcementaction. 

### G. Documentation. 1) E-EDP Worksheet-Retentionrequirements. E-EDP Worksheetsrequired by this policy are maintainedin accordance with established retentionperiods for EIRs and other enforcementrecords. 2) E-EDP Worksheet-Filingrequirements for cases requiring anE-EDPworksheet. a) Legal Enforcement Actions. SectionB ofthe EIRincludesthe completed and signedE-EDP worksheet. b) Administrative Action and Informal Action Cases. AFS field officesretainthe E-EDPworksheet inthe investigating office files for cases closedwith administrative action and informal actions. I. 

### Forall administrative action cases requiring anE-EDP worksheet (including cases closed with the StreamlinedNoAction andAdministrativeActionProcess (SNAAP)) the completed E-EDP worksheet, FAAForm 2150-5, EnforcementInvestigation
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### 1114/10 8900.1 CHG 83 Report andthe administrative action letter (orthe SNAAPjob aid) is placed in an investigating office enforcementcasefile for each separate action. 2. 

### Thisrequirementdoes notapplyto acceptedASAP cases closed with administrative action orinformal action, orto other cases closed onthe spotwith informal action or administrative action. 3) Excluded Cases Warranting LegalEnforcementAction. AFS inspectors complete Step Oneand signtheE-EDP worksheet indicatingthatthe apparentviolation is categorically excluded from theE-EDP. The signedE-EDPworksheet is included in SectionB ofthe excluded caseEIR. 4) ExcludedCasesThat are ClosedWithAdministrative orInformal Action. AFS inspectors complete Step One ofa signedE-EDPworksheetindicatingthatthe violation is categorically excludedfrom the E-EDP. The signedworksheetis placed in the investigating office case file. Alternatively, anE-EDP worksheet indicating categorical exclusion is not required ifan EnforcementInformation System (EIS) code, orPTRS code orfield, or a PTRS commentindicatethatthe casewas ofatypethat is categoricallyexcluded. Forexample, VDRP cases, 49U.S.C. section44709 cases, etc. 

### H. Entryin Tracking Systems. 1) 

### Record all legal action cases and administrative action cases inEIS andPTRS. 2) Informal action cases do notrequire thepreparation ofan EIR nor a casenumber from EIS, butmustbe documented in PTRSto supportnational, regional, and local systems safety analysis, andtoidentifytrends. a) AFS investigativepersonnel must recordthe following information on informal actions inPTRS:

• Nameofthe individual orbusiness; • Certificatetype and number ofthe individual or business (as applicable); • Regulations involved (include section, paragraph and subparagraph); • Date ofcounseling; • Type ofcounseling (oral or written); • Forbusinesses, name and title ofperson counseled; and • Briefdescription ofthe apparentnoncompliance. 

### I. Review ofApplication oftheEnforcementDecision Process. 1) 

### AFS Regional Offices (RO) and field office management are responsible for reviewing eachE-EDPworksheet and determiningthatitis completed in accordancewith this section. Thepreparer and eachreviewerwillprint and sign eachE-EDPworksheet. A signature will indicate thatthe signatory concurs inthe appropriateness ofthe actionrecommended and believes the E-EDPworksheet ispreparedin accordance with all applicable policies.
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### 1114110 8900.1 CHG 83 

### 2) Copies ofthe complete administrative action casefile (for all casesrequiring completion ofanE-EDP worksheet), including evidence sufficienttoprovethe violation, must be forwardedtothe appropriate RO for review after issuance bythe investigating office. NOTE: Whilethisrequirementdoes notrequire Items ofProof, sufficient documentation must be included withthe file to showthatthe violation(s) occurred (e.g., abriefinspector statement, a copy ofaphotograph, copy ofa logbookpage). 3) Legal Concurrence. Before initiating legal enforcement action, legal counsel determines whetherthe recommendation for legal enforcement action is appropriate underthe E-EDP. Tf!egal counsel concurs withthe AFS recommendation and analysis, legal counsel signs the E-EDPworksheet and initiates the case. lflegal counsel disagrees that legal enforcement action is appropriate, or disagreeswithhowthe E-EDP was applied in a case, then legal counsel andthe appropriate AFS RO will discuss and attemptto resolve those disagreements before the legal actionis initiated. Iflegal counsel still disagreeswith taking legal enforcementaction after discussionwith theAFS RO, thenlegal counsel explains the reasons for such disagreement on theE-EDPworksheet, signs it, andreturns theETRto the AFS RO afterreviewbythe regional counsel or designate. Iflegal counsel disagreeswiththeAFS analysis undertheE-EDP, but agrees withtherecommended action, legal counsel does notreturnthe EIRto the RO. Rather, legal counsel explains thereasons forthe disagreement ontheE-EDPworksheet, signs it, and initiates the case. 

### 14-144 TASKOUTCOMES. Completion ofthe E-EDPworksheetresults in one ofthe following:
• Exclusion ofan apparent violationfrom the EDP; • Legal enforcement action; • Administrative action; • Informal action; • Remedialtraining; or • Deviationfrom the enforcement action indicatedbythe E-EDP process. 

### 14-145 FUTURE ACTIVITIES. Conduct a followup inspectionto ensure completion of corrective action(s) when aLetter ofCorrectionhas been orwillbe issued.

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### 1/l4/l0 8900.1 CHG 83 Figure 14-11, E-EDP Worksheet AFS ENFORCEMENTDECISIONPROCESS (E-EDP) WORKSHEET CaseName:

_________ _ ETRNumberfor Legal andAdministrativeActions:

____________ _ PTRS ReportNumber for Informal Actions:

__________ _ Note: Referto FAA Order 8900.1, Volume 14, Chapter 1, Section 8, Enforcement DecisionProcess for defmitions, policy explanations, and examples for each step. STEP ONE-Determineifthis case is categorically excluded. Review the listbelow to determine ifthis case should becategorically excluded from the EnforcementDecisionProcess (EDP). Ifthe case is excluded, eitherplace a checkmarkinthe boxadjacentto the type ofcase from the following list, orexplain whythis casehas been excluded. (See below.) Typesofcases that are categorically excluded from the EDP: 

# D 1. Voluntary Disclosure ReportingProgram (VDRP). Violations that are voluntarily disclosed under VDRP andthatmeet all acceptance criteriafor the program. 

# D 2. LackofQualifications.Lackof qualification means a certificate holder lacks the skills andcompetency, or care,judgment, and responsibility necessary to holdthat certificate. Forexamples, seethe listbelow:
• Drug and alcohol positives; • Failingto successfully complete areexamination; • Failingto possess the skills andcompetencyrequired forthe certificateheld; • Refusingto permit and/or submitto an inspection, reexamination, ordrug or alcoholtest; • Intentionally falsifying arecord or application; or • Cheating onawritten examination. Note: Legal enforcement action is requiredfor these cases. 

# D 3. CriminalActivity. Forexample, cases involving controlled substances. Note: Legal enforcement action is requiredfor these cases. 

# D 4. Special Emphasis EnforcementPrograms. Forexample, currently cases involvingTemporary FlightRestriction (TFR) violations. 

# D 5. Operating without having been issued a required certificate, rating or other required authorization. Note: Legal enforcementaction is requiredforthese cases. 

# D 6. Violations involving military pilots that are referred to theDepartmentof Defense (DOD).

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### 1/14/10 8900.1 CHG 83 

# D 7. 

### Violationsinvolving foreign rated airmenthatarereferredto the State Department. Is this case categoricallyexcluded? 

### Place acheckmarkin the boxadjacentto youryes

### orno 

### selection. 

# D Yes-thecase is excluded. Explain inthe space providedbelow ifyouhavenot placed a checlanark in one ofthe boxes above. Comments: Ifthe case is excluded,

# G the EDP after completing Step One and print and sign the worksheet. Then proceed in accordancewith applicable enforcement guidance. 

# D No-the case is not excluded. Proceedto Step Two. STEPTWO-AdministrativeAction andInformalAction Criteria. Review thefollowing criteria. 

### For each ofthe criteriathat have beenmet

### place a checkmarkin the appropriate box. 

# D 1.

### Legalenforcementactionis not required bylaw. For example, U.S.C. Section 44710 anddrug-related offenses. 

# D 2. Administrativeactionwould adequatelydeterfutureviolations.Adequately deter

### meansthatthe FAAaction is reasonably likely to discourage the allegedviolator and others similarly situated from committing the same or very similar conduct for the foreseeable future. 

# D 3. Theapparentviolationdoes notindicatea lackofqualification.Lackof qualification

### means acertificateholder lacks the skills andcompetency, or care, judgment, andresponsibilitynecessaryto holdthat certificate. 

# D 4. The apparentviolationwas inadvertent, (i.e., nottheresultofpurposeful conduct).Aviolation is inadvertent

### when itdoes not

### result from an alleged violator's conscious decisionto take or nottake any actionthat couldhavepreventedtheviolation. 

# D 5. Theapparentviolation does notinvolve a substantialdisregard for safety or security. Substantialdisregard forsafetyorsecurity

### means, in the case ofacertificate holder, thatthe actwas a substantial deviation from the degree ofcare,judgment, and responsibility normally expectedofaperson holdingthat certificate withthattype, quality, and levelofexperience, knowledge, and proficiency. 

# D 6. Thecircumstancesoftheapparentviolationwerenotaggravated.Aggravated circumstances 

### are those thatmake, or could make, the violation worse, more serious, or the potential outcome more severe. 

# D 7. Thealleged violatorhasa constructiveattitudetoward compliance. Constructive attitude 

### means thatthe alleged violatoracts in apositive marmertoward regulatoryrequirements, cooperateswillingly withFAAinvestigative personnelto achieve compliance, andwillinglytakes actions necessary to come into and maintain compliance.
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# 0 8. Theapparentviolation does notindicate a trend ofnoncompliance. A 

### trendof noncompliance is indicatedbyapriorviolationhistory which can include legal enforcement action(s), administrative action(s) and/or informal action(s). Have allcriteria for takingAdministrativeAction been met? Pleaseplace a checkmarkin the box adjacenttoyouryesor no selection. 

# 0 No, all ofthe criteriahave notbeenmet. Inthe space provided below, please explain whythecriteriahave notbeenmet. 

### Explanation: Please

# 0 theEDP, and after completing StepTwo, print and signtheworksheet andproceed with legalenforcement action. 

# 0 Yes, all criteriahavebeen met. 

### Proceed to Step Three. STEP THREE-Determine Severity. For severity, selectthe worsttype ofinjury/damagethat couldrealistically (and potentially) occur from ageneric violation ofthistype. 

### Note: Do notconsiderthe facts and circumstances specifictothis case when determining severity. 

### Note: A genericviolationrefersto the basic act orfailure to act absent any specific facts or circumstances. Forexample, a generic violation could includethe following: failure to complywith an ATC clearance, failure to perform maintenance in accordancewith themanufacturer'smaintenance manual, low flight overterrain, etc. 

# 0 Catastrophic (deathor severe damage) 

# D Critical (severe injury or substantialdamage) 

# 0 Marginal (moderate injury or damage) 

# 0 Negligible (minor or no injury or damage) Why did you selectthis severity level? 

### Explanation: Proceed to Step Four. STEPFOUR-DetermineLikelihood. Selectthe probability ofthe worsttype of injury/damagethat could realistically occur, consideringthe facts specificto this case. 

# D Frequent (likelyto occur often) 

# 0 Occasional (likelyto occur sometimes) 

# D Remote (unlikely to occur, orwould seldom occur, orwould not occur) Why did you selectthis likelihood? 

### Explanation:
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### Proceed to StepFive. STEPFIVE-UsetheRiskAssessment andActionMatrix. Usingyour selections for severity andlikelihood in Steps Three andFour above, determinethe level ofrisk andthe type of enforcement action to takeusingthe matrixand placeyour selectionsin the spaces provided. SEVERITY Catastrophic Critical Marginal Negligible Frequent 

### Risk: High 

### Risk: High 

### Risk: Moderate 

### Risk: Moderate Action(s): 

### Remedial Aclion(s):

### Remedial Action: Action:**~** 

### Training orLegal Training orLegal Administrative Administrative 

### 0**~----~R~~~k~:~lli~.g~h~~~-~R~~ k.~-M~o~d~IT~m~e~-~R~,=.sk~:~M~o~de=r~m~e-~R~,=s** **k=-L=o~w~~-~** 

# :il Occasional Action(s): 

### Remedial Action: Action: Action(s): i=l 

### Training orLegal Administrative Administrative Administrative or

...

# ~**~-------+~~~~~---+~~~~~---+~~~-----+T~n~fu~rm~al~----~** 1=1 

### Risk: Moderate 

### Risk: Moderate 

### Risk: Low 

### Risk: Low Remote Action: Action: Action(s): Action(s): 

### Administrative Administrative Administrative Administrative or orInformal Informal Level ofrisk selected: Type ofaction selected:

__ _ Proceed to Step Six. STEP SIX-UseofRemedialTraining. IfRemedial Training (RT) is indicatedbythe matrix, Flight StandardsInspectors must 

### offer an airman RT, providedall

### criteriafortaking administrative action and

### RT are met, andthe apparentviolation causes ahigh 

### safetyrisk. IfRT isrefused, ornot completed satisfactorily, proceedwith legal

### enforcement action. Note: All ofthe RT criteriamust

### be metbefore the FAAcan offerRTto an airman. Ifall criteriaare not

### metthen legal 

### enforcementmust

### be taken. Note: RT cannot

### be used for airmen usingtheir FAAcertificate(s) in air transportation (aircarrier operations) when the violation occurred. 

# D 1. Ifthe airman was

### using his FAAcertificationin air carrier operationswhen the violation occurred, place a checkrnarkinthis boxandproceedwith legal 

### enforcementaction. Proceedto Step Seven. 

# 0 2. 

### Ifthe airmanwas not

### using hisFAAcertificationin air carrier operations atthetimethe violation occurredplace a checkrnarkinthis box and determinewhether RTcriteriahave been met. Review each of thefollowing criteria. 

### Ifmet, place acheckmarkin the appropriate box adjacent to the criteria. 

# D 1.Futurecompliance canreasonably beensuredthroughRTalone. 

# D 2. Theairmanexhibits a constructive attitudethatwouldleadtheinspectorto believethattheairman has a willingness tocomply, so noncompliance is less likely inthe future. 18 UNCONTROLLEDCOPY WHENDOWNLOADED 

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# D 3. 

### The conductdoes not disclose a lackof, ora reasonable basis to question, the airman's qualifications. 

# D 4. Theairman's record ofenforcement actions does notindicate thatRTwould be inappropriate 

# D 5. Theconductis not deliberate, grossly negligent, orcriminal in nature. Have allcriteria for usingRTbeen met? DYes DNa D NotApplicable lfno. explain belowwhythe criteriahave not beenmet, printand signthe E-EDP worksheet and then proceedwith legalenforcementaction. Explanation: Proceedto Step Seven. STEP SEVEN-Deviation Procedures. Tn exceptional circumstances, the investigating office can recommendthat an actionbetaken otherthanthat indicatedbythematrix. For example: 1. Theinvestigating office can provide awritten explanation for why legal enforcement actionwould serveno useful purpose andthatuse ofan administrative action is otherwise in the public interest. 2. The investigating office could also recommendthat administrative action would notbe appropriate andthat legal enforcement action should be taken. 3. Ifa type ofaction is proposed otherthan that indicated bythe EnforcementDecision Process, the divisionmanager, orhis/herdesignee's approval is required. EDPProcess OutcomeRequested: Yes

# D No 

# D Tfyes, describethe actionyou propose, explainthe facts and circumstances, andjustify yourproposal: Explanation: DivisionManager/Designee Action: 

# D Approved 

# D Disapproved 

# D NotApplicable PrintName:



### ------------------------ Signature:

______________ __ Date:

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### 1/14/10 8900.1 CHG 83
Proceed to StepEightand printand sign theE-EDPworksheet. STEPEIGHT-SIGNATUREPAGE Inspector: PRINTEDNAME:

__________ _ SIGNATURE:

___**~--------** 

### DATE:

___ _ 1stLevelReviewer: PRINTEDNAME:

__________ _ SIGNATURE:

___________ _ DATE:

___ _ CMO/FSDO/IFOManager: PRINTEDNAME:

__________ _ SIGNATURE:

___________ _ DATE:

___ _ Regional OfficeReviewer: PRINTEDNAME:

__________ _ SIGNATURE:

___________ _ DATE:

___ _ Attorney (ifforwarded for legalenforcementaction): PRINTEDNAME:

__________ _ SIGNATURE:

___________ _ DATE:

___ _ Ifthe attorney finds that the proposed type ofenforcement action does not conformto the EDP process, explainwhy

### itdoes not: Explanation: RESERVED. Paragraphs 14-146 through 14-149.

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### Page 1 of 16 

# Westlaw 2005 WL 1805921 (D.O.T.) Page I

2005 WL 1805921 (D.OT) This document has NOTyetbeen evaluated for purposes ofKeyCite and may no longer be valid law. Department ofTransportation (D.OT) Office ofHearings *I FEDERAL AVIATION ADMINISTRATION, COMPLAINANT, v. AMERICAN AIRNETWORK, INC, RESPONDENT. FAA DocketNos. CP04WPOOI3, CP04WP0014. DMS Nos. 2004-17656, 2004-17657. (Civil Penalty Actions)

ServedJuly27, 2005 INITIAL DECISION OFADMINISTRATIVE LAWJUDGE RICHARD C. GOODWIN In DocketCP04WPOOl3: Found: I)Respondentviolated 14 C.F.R. §§39.7, 91.7, 135. 21( a) and l35.419(g) as charged; 2) Respondentis hereby assessed a civil penalty of$49,000. In DocketCP04WPOOI4: Found: I) Respondentviolated 14 C.F.R. §135.95(a) as charged; 2) Respondentis hereby assessed a civil penalty of$7,000. Respondent American Air Network, Inc. ("AAN," "Respondent," or "the carrier") ofChesterfield, MO, holds an air carrier operating certificate under Part 135 ofthe Federal Aviation Regulations ("FARs"), allowing it to conduct air transportation for compensation or hire (Exh. C-2 and Tr. 25, 27, 206 in Docket CP04WPOOI3 ("-0013"); Tr. 90-91, 95 in Docket CP04WPOOI4 ("-0014'')). It is a self-described "(Part] 135 management company," tracking and fulfilling maintenance and other requirements for aircraft on its certificate. AAN managed under contract about thirty aircraft in relevant time periods, and manages forty today (Tr. 358, 395-96, 400 in

- 0013; Tr. 67 in- 0014). The Federal Aviation Administration, Western-Pacific Region ("Complainant" or "agency"), brought charges against the carrier which resulted in the captioned proceedings. The actions are separate and unrelated. However, since they involve the same parties and counsel, for the sake ofconvenience I heard them seriatim on December 16 and 17, 2004, in St Louis. In each proceeding I determined that a written decision was reasonable and most appropriate under the circumstances (Tr. 407 (-0013); Tr. 106 (-0014)). The parties filed briefs and the



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### Page 2

cases are now ready for decision. The burden is on the agency to prove each case 

### by a preponderance of the reliable, probative, and substantial evidence (14 C.F.R. sl3.224). I. Docket CP04WP0013 A. Background This proceeding grew out of the agency's examination of the maintenance records of a Hawker 125, 600 series aircraft, registration number N700XJ (Exh. C-1; Tr. 34). The Hawker is a corporatejet that holds nine or fewer passengers (Tr. 27). Respondent received authorization to operate this aircraft beginning November 7, 2000 (Exhs. C-1, C-28; Tr. 34, 396-97). N700XJ 

### was maintained under an FAA-approved maintenance program known as the Approved Aircraft Inspection Program ("AA!P") (Exhs. C-2, C-3, and C-12; Tr. 37-40). The AAIP was brought into the aircraft's maintenance manual on November 5, 2000, when the aircraft became part of the carrier's operations specifications (Exhs. C-1, C-2; Tr. 41, 43, 386). Aviation safety inspectors James Magill and Gregory McDonald of the FAA's Los Angeles Flight Standards District Office ("FSDO") began a records review ofthe subject aircraft in February, 2002 (Tr. 22, 31, 86, 177, 185). They found numerous instances in which required maintenance entries did not appear (Tr. 55, 175). Inspector McDonald credibly testified that he and inspector Magill made repeated attempts to obtain all pertinent records from the carrier in order to properly and completely accomplish their records evaluation (Tr. 88, 162, 163-64). *2 Respondent exchanged views with agency representatives and turned over additional documents in meetings held in Los Angeles on February 8 and 27, 2002. After the second meeting, agency officials, following a thorough review of all records made available to them, sent a letter to AAN through the carrier's St. Louis FSDO. They invited the carrier to respond in writing through St. Louis to a list of discrepancies that they believed were still outstanding (Exh. C-7; Tr. 57, 92-93, 167, 177, 180). The carrier addressed the Los Angeles FSDO's concerns in a letter dated April 2, 2002 (Exh. C-8; Tr. 94). Subsequently the agency concluded that Respondent committedthe FAR violations forming the basis for its amended complaint. Thefollowing is a summary ofthe agency's charges: I) Respondent overflew Airworthiness Directive ("AD") 93-02-!0 and thus operated in an unairworthy condition; 2) Respondentperformed an engine inspection without following applicable inspection procedures; 3) Respondentperformed an airframe inspection without following applicable inspection procedures; 4) Respondent failedtokeep its inspection program and maintenance manual current; 5) Respondent operated the left hand airbrakejackbeyond inspection limits; 6) Respondent operatedthe left hand outboardmaxaretbeyond overhaul limits; 7) Respondent operated the lefthand aileron beyond inspection limits; 8) Respondent operated the righthand aileron beyondinspection limits; 9) Respondent operated the left hand flap vane beyond inspection limits; 1 0) Respondent operated the righthand flap vane beyond inspection limits; 11)the cabin STRNDT 53-10-106 structural inspection and x-ray was notperformed within inspection lim- its;

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12) the horizontal stabilizer structural inspection and x-ray was not overhauledwithin inspection limits; 13) the vertical stabilizer structural inspection and x-ray was not overhauled within inspection limits; 14) the left hand wing structure structural inspection was not overhauled within inspection limits; 15) the left hand lower wing stringers structural inspection was not overhauled within limits set by Respondent's inspection program andmanual; 16) the left handhorizontal stabilizer structural inspection was not overhauled within inspection limits; 17) the righthand horizontal stabilizer structural inspection was not overhauled within inspection limits; and 18)theright hand wing bottom skin/stringers structural inspection was not overhauled within inspection limits. Complainant contends that Respondent violated several different FARs. Count I asserts that AAN violated section 39.7, 14 C.F.R. §39.7 (operating a product to which an airworthiness directive applies without compliance with that AD) and section 91.7, 14 C.F.R. §91.7 (operating a civil aircraft in an unairworthy condition). Counts 2, 3, and 4 contend that Respondent violated FAR section 135. 21( a) (14 C.F.R. §135.21(a)) by failing to prepare, keep current, and use in operations its FAA-accepted maintenance manual. The remaining counts, 5-18, allege violations of section 135.419(g), 14 C.F.R. §135.419(g) (failure to have an aircraft inspected in accordance with the carrier's approved aircraft inspection program) as well as the aforementioned §135.2l(a). The agency asks for a total civil penalty of$49,000. *3 Respondent denied the charges. It offered several defenses. Primarily the carrier relied on notations in tracking programs it utilized which, it asserted, are valid maintenance records. These matters will be discussed in greater detail below. B. Discussion and Findings L Count 1 Count I is the sole charge concerning an AD. The carrier's maintenance program included AD 93-02-10. A socalled recurring or repetitive AD (Tr. 385), it required inspection ofthe battery cables in accordance with a particular service bulletin at least once a year in order to forestall a circuit from overheating and causing a fire. Nonetheless the inspection, i.e. the AD, could be terminated by modifYing the wiring installation as specified (Exh. C-4; Tr. 45). The agency charged that AAN had operated the Hawker aircraft from March 6, 2001 through January I, 2002, [FNI] a total of 582.7 hours, without complying with the AD. [FN2] As a result, the aircraft also hadbeen operated in an unairworthy condition during thattime, the complaint continues (Tr. 68-69). AAN in its defense produced a document known as a Mandatory Modification Record ("MMR"). The MMR was intended to fulfill the requirement that an operator list all AD notes and action taken thereon (Tr. 47-48). But the MMR showed no action on the AD after August 25, 1995 (Exh. C-5; Tr. 48). The carrier nonetheless claimed that the AD had.been terminated, or "very likely" had been terminated, by modification (Exh. C-8, p. 2; Tr. 58, 269, 271, 273, 390). The evidence in support, quality assurance manager William Pobanz testified, resided in Respondent's tracking programs (Tr. 269-70,273-74,328, 355; Exh. C-15, p. 69). The aircraft's prior owner had used a commercial program known as Computerized Aircraft Maintenance Program ("CAMP") to track maintenance requirements and performance. AAN repeatedly relied on CAMP to prove performance. But CAMP falls short ofregulatory requirements. It is simply a tracking system. It can be useful in noting past action and in alerting subscribers to upcoming maintenance duties (Tr. 361-62). But it does not con-

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tain the FAR requirements for the performance of maintenance. These include a description of the work performed, the mechanic's name, signature, and certificate number, and an approval for return to service (Tr. 172; 

### see Exhs. C-6, C-10, and C-28; 14 CFR §43.11). As such, the tracking notations do not record the accomplishment of maintenance. They do not prove that the work was performed (Tr. 69, 112, 124, 126, 129, 173-74, 188-89, 362). l agree with inspector McDonald of the Los Angeles FSDO, who testified that CAMP notations may not be considered regulatory documents. [FN3] They simply fail to constitute a valid maintenance entry. AAN subsequently adopted its own tracking procedures (Exh. C-9). It asserted that it placed "high confidence" in the reliability and accuracy ofboth the CAMP and its own system (Tr. 213-14; 

### see also Tr. 260-61). Entries were based on valid logbook entries, the carrier asserted (Tr. 216, 227, 229-30). But Respondent's system- as it itself acknowledged

-- did not fulfill regulatory obligations any more than did the CAMP system. As AAN maintenance data manager Joshua Pobanz (the son of William Pobanz) explained, a tracking notation constitutes no more than a starting or reference point; 

### it indicates where to look for the maintenance record entry, but it is not a maintenance record entry itself [FN4] As inspector McDonald put it, "1 have no knowledge from looking at this piece ofpaper [Exh. C-9, AAN's own tracking system] that the work was performed" (Tr. 178). 

### *4 Carrier representatives acknowledged that the MMR itself did not show that AD 93-02-10 was no longer recurring (Tr. 327). But AAN concluded nonetheless that it had been modified. It suggested that because its tracking system failed to list the AD in the system's compilation ofrepetitive AD notes, the note must have been terminatedby modification (Exh. C-9, p. 5 (top); Tr. 272-74, 355). I reject this reasoning. AAN asks that a conclusion be drawn from a record's absence. But the lack ofa record is not probative. Termination simply must be reflected in a valid entry. AAN could not point to such a record (Tr. 372). Itthus failed to show thatthe AD hadbeen terminated by modification. [FN5] Agency examiners were no more successful in locating evidence tending to show AD compliance. Inspectors found neither a maintenance record setting out AD performance after August 25, 1995 nor any entry recording AD modification (Tr. 57-59, 69, 70, 74, 77, 78, 189, 191; Exh. C-5). The agency noted that it had specifica11y requested all applicable AD notes in its February 2002 meetings with AAN (Tr. 53, 87-88). Against this background, I find the violations. The agency met its burden of showing that Respondent failed either to fulfill or to terminate the AD between March 6, 2001 and February 27, 2002. As such, I conclude that (a) Respondent overflew the AD during the named period, a violation of §39.7; and (b) operated the aircraft duringthe named period in an unairworthy condition, aviolation of§91.7. 2. Counts 2 and 3 Counts 2 and 3 a11ege that AAN failed to follow AAlP procedures when performing !50-hour engine and airframe inspections, respectively, on or about December 24, 2001. AATP inspections must be documented on a particular form called "Inspection Cover Sheet & Return to Service."The form requires the performing mechanic's name, initials, signature, certificate number, and a certification stating whether or not the aircraft was approved for return to service. The section concerning approval or non-approval of the aircraft's return to service, according to the explicitwords ofthe AAlP, "mustbe completed" (Exh. C-10). AAN's April 2, 2002 response to the agency's post-February 27 letter listing outstanding discrepancies (which is found in Exh. C-7; see LD., p. 2) referred the agency to a "log book entry" (Exh. C-8, p. 2; Tr. 102). That entry records the type and date of the inspections and the mechanic's signature. But it does not record the mechanic's certificate number or whether the aircraft was approved for return to service (Exh. C-11; Tr. 103-04). As such,

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inspector McDonald testified, the entry did not comport with AAIP requirements (Tr. 1 04-05). AAN denied the violation (Tr. 280 (Count 2), 280-81 (Count 3)). Yet quality assurance manager William Pobanz acknowledged that the entry is not a proper maintenance record entry precisely because no certificate number for the mechanic perfonning the work is recorded and because the aircraft is neither approved nor not approved for return to service (Tr. 332-33; see Exh. C-11). *5 These circumstances show that Complainant proved these charges. The facts demonstrate that AAN failed to fulfill AAlP requirements in its performance both of !50-hour engine and !50-hour airframe inspections. As such, I conclude that Respondent violated §135.21 (a) respecting both Count2 and Count3. 3. Count 4 Count 4 alleges that AAN failed to timely update a maintenance manual. The carrier had adopted, as the basis of the AAIP, Chapter 5 of the Raytheon Aircraft 125 series, 600 Aircraft Maintenance Manual ("Raytheon Manual"). At the time ofthe inspectors' examination ofAAN records in February 2002, the carrier was using Revision 3 of the Raytheon Manual. But that version was outdated, the agency asserts; Revision 4 had become effective the previous August. Thus, according to Complainant, the carrier had been using a manual revision approximately six months out ofdate (Tr. I06-09, 195; Exhs. C-12-14 and 14A). AAN denied the violation. While it admitted the facts as stated, acknowledging the manual's "inaccuracy," the carrier argued that it was not umeasonable to fail to have the revision in place in view of common lag times between issuance and approval ofmanual changes (Exh. C-8, p. 3 (Point 8); Tr. 282-84; see also Tr. 15). Quality assurance manager William Pobanz asserted in support that an operator has 60 days to obtain FSDO approval of a revisedmanual (Tr. 282). I find that Complainant carried its burden of proving the charge. It is clear on its face that Respondent violated §135.21(a) by using an outdated Raytheon Manual. The AAIP explicitly makes the carrier's director ofmaintenance responsible "for keeping this AAIP current and revised, as the inspection program changes" (Exh. C12). The carrier1s defense, moreover, fails. Assuming for the sake ofargument that its representation ofa 60-day lag time between manufacturer revision and carrier adoption is correct
- although no policy or regulation suggests that it is [FN6]

-- that hypothesis does not explain why Respondent employed an outdated version about 180 days after revision 4 had been issued (see Tr. 344). Even under a scenario most favorable to the carrier, it employed a maintenance manual at least four months out of date. AAN offered no explanation for this circumstance. Iconclude that Respondent violated§ 135.21(a) in Count4. 4. Count5 According to Count 5, the AAlP obligates Respondent to overhaul the Hawker's left hand airbrake jack component no later than every 3,000 hours time in service. The last overhaul the carrier noted (in the CAMP tracking system) took place at 7,304 hours, making the next overhaul due no later than I0,304 hours. [FN7] As ofFebruary 27, 2002, however, N700XJ had a total aircraft time of l 1,05!.5 hours, or 747.5 hours beyond limits (Exh. C-16; Exh. C- 15, p. 19; Tr. 111-14). AAN's April 2, 2002 letter in response to the agency's post-February 27 discrepancy list states "Complied with at 12-23-00 records not accounted for at this time" (Exh. C-8, p. 3 (Point 5 under "Component Requirements")). Aviation safety inspector Gregory McDonald's review of the aircraft records found no valid indication that the overhaul had been timely performed (Tr. 115, 135-36, 169-70, 172, 174, 178, 198-99). *6 AAN countered that its own tracking system showed, or might have showed, that an overhaul had been ac-

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complished at 10,837.8 hours on September 18, 2001 and therefore was not due until 13,837.8 hours (Exh. C-9, p. 7 (either of the two columns beginning "57-00-14 AlRBRAKES"); Tr. 285, 345). Since the aircraft hadjust 11,051.5 hours when FAA inspectors conducted their records evaluation, the charge, 

### it said, was meritless (Tr. 285-86). I fmd that Complainant proved the charge. Respondent could point to no bona fide maintenance entry suggesting that the overhaul had been accomplished within limits. Tracking sheets are not proper maintenance records (see LD., pp. 4-5). But even ifthey were, the various tracking notations concerning performance of maintenance for the left hand airbrake jack are inconclusive. The CAMP tracking system, upon which Complainant relied, indicates that "JACK AIRBRAKE LEFT" had last been overhauled at 7,304 hours (Exh. C-15, p. 19), while the carrier's later-adopted system noted that the "AIRBRAKES" overhaul had been last accomplished at 10,837.8 hoursa substantial difference. Moreover, Respondent's own tracking system is confusing to the point where 

### it does not enable a determination of which, if any, entry references maintenance for the component under discussion. The system contains two entries respecting airbrakes. Neither explicitly references the left hand airbrake (Tr. 346-47). This tracking system as a whole, in fact

-- as AAN witness William Pobanz acknowledged

-- does not separate left from right components (Tr. 351). So the available tracking infonnation is of little value. The only probative evidence in any event, ofcourse, would be valid log entries, and none are in evidence. I conclude that Respondent violated**~§** 135.21(a) and 135.419(g).[FN8] 5. Count6 The AAIP also obligates AAN to overhaul its left hand outboard maxaret component no later than every 3,000 landings. The carrier's CAMP tracking system
- the only available documentation

-- showed that this component had last been overhauled at 5,602 landings; thus, the next overhaul was due no later than at 8,602 landings. As of February 27, 2002, however, N700XJ totaled 8,784 landings without a subsequent overhaul. The carrier thus was 182 landings out oftime, Count 6 asserts (Exh. C-17; Exh. C-15, p. 34; Tr. 127-29). AAN's April 2, 2002 letter in response to the agency's notification states "Complied with at 03-30-00 records not accounted for at this time" (Exh. C-8, p. 3 (Point 6 under "Component Requirements"); Tr. 129-30). In its defense the carrier also noted that its tracking system showed that the overhaul had been accomplished at 6,021 cycles (landings), or within limits, since 8,784 minus 6,021 is less than 3,000 (Exh. C-9, p. 6 (next to column stating "32-00-LL GEAR MAXARET UNIT"); Tr. 287-88, 350). Inspector McDonald's review of AAN's records, however, found no indication that the overhaul had been timely performed (Tr. 130, 135-36, 169-70, 172, 174, 178, 198-99). 

### *7 I find that Complainant met its burden ofproving the charge. Respondent offered no probative evidence tending to meet the agency's assertion that it had failed to overhaul N700XJ's left hand outboard maxaret within prescribed limits. In these circumstances, l conclude that Respondent violated § §135.21(a) and 135.419(g) as allegedby Count6. 6. Counts 7 and 8 Counts 7 and 8 involve the Hawker's left hand and right hand aileron, respectively. The agency contends that a required structural inspection and x-ray must be perfonned every 2,400 hours or four years, whichever occurs frrst (Exh. C-18 (top two items); Tr. 130-31). Each component's structural inspection- again, according to the only available notation, the carrier's CAMP tracking system
-- had been last recorded at 8,340 hours on December 12, 1997. The next inspection, then, was due at 10,740 hours, or by December 12, 2001, whichever occurred

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first (Exh. C-15, p. 16; Tr. 133-34). As of February 27, 2002, however, N700XJ, with a total aircraft time of 11,051.5 hours, had recorded no further overhaul. Thus for both ailerons the structural inspection and x-ray had been overdue. Inspector McDonald's review of the aircraft records made available by AAN following the Febru

### ary 2002 meetings, further, found no indication that either structural inspection and x-ray had been timely performed (Tr. 135, 169-70, 172, 174, 178, 198-99). AAN's April 2, 2002 letter in response to the agency's notification states "Complied with at 9-18-01 records not accounted for at this time" (Exh. C-8, p. 4 (Points 1-4); Tr. 134-35). The carrier's tracking records show performance on that date, but at 10,837.8 hours, or 97.8 hours out oftime (Exh. C-9, p. 7 (next to columns stating "57-00-15 AILERONS"); Tr. 288-89). The carrier nonetheless denied that performance had been overdue (Tr. 289). I find that Complainant met its burden respecting each charge. As has been stated, since Respondent's tracking notations - its only evidence in support of its case -- do not constitute a proper maintenance record entry, 

### it failed to counter the agency's assertion that a structural inspection and x-ray of the aircraft's left hand and right hand aileron was not accomplished within limits, being overdue by 311.5 hours (11,051.5 minus 10,740). And I note that even Respondent's numbers show that the inspections had been overdue. Against this background, I find respecting Counts 7 and 8 that Respondent violated §**~** 135.21(a) and 135.419(g). 7. Counts 9 and 10 A structural inspection and x-ray for N700XJ's left hand and right hand flap vane must be undertaken under the AAIP every 2,400 hours or four years, whichever occurs first (Exh. C-18 (third item); Tr. 137). Both components' structural inspection - again, according to the only available document, the CAMP tracking system -- had been last recorded at 8,340 hours on December 12, 1997. The next inspection, then, had been due at 10,740 hours or by December 12, 2001, whichever occurred first (Exh. C-15, p. 18; Tr. 138). As of February 27, 2002, however, N700XJ, now with a total aircraft time of 11,051.5 hours, had recorded no further overhaul (Tr. 137-38). Inspector McDonald's review ofthe aircraft records found no indication that a structural inspection and x-ray for either flap vane had been timely performed (Tr. 138-39, 169-70, 172, 174, 178, 198-99). Counts 9 and I0, respectively, allege that the structural inspection and x-ray was overdue for both the left hand and right hand flap vane. *8 AAN's April 2, 2002 letter in response to the agency's notification states "Complied with at 02-01-0I records not accounted for at this time" (Exh. C-8, p. 4 (Points 12 and 13); Tr. 139). Respondent's tracking data indicates that maintenance for one flap was accomplished on February I, 2001, at 10,398.6 hours-- within limits (Exh. C9, p. 7, next to top column stating "57-00-17 FLAPS")- and performance of the other flap was undertaken on September 18, 2001, at 10,837.8 hours, or 97.8 hours outside limits (Exh. C-9, p. 7, next to bottom column stating "57-00-17 FLAPS"). William Pobanz assuredthatperformance had notbeen overdue (Tr. 289). I fmd that Complainant met its burden respecting each charge. Since Respondent's only evidence, its tracking notations, does not constitute a proper maintenance record entry, the carrier failed to counter the agency's assertion that a structural inspection and x-ray ofthe aircraft's left hand and right hand flap vane had not been accomplished within limits. I note also that, as with Counts 7 and 8, Respondent implicitly conceded that performance of one component had been overdue (though its tracking data does not permit a determination as to which one). The reliable and probative evidence shows that the inspection and x-ray ofboth flap vanes was overdue by 311.5 hours (11,051.5-l0,740). Respondent, then, violated §§ 135.21(a) and l35.419(g).

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8. Count II AAN's maintenance schedule also required, at least once every eight years, a structural inspection and x-ray of the "major frames" ofthe center fuselage section and inspection ofthe skin for cracks, corrosion, and deterioration of the protective treatment (Exh. C-19; Tr. 140). The carrier's CAMP tracking sheet notes that this inspection had been last performed on August 13, 1993; the next inspection, therefore, was due no later than August 13, 2001 (Exh. C-15, pp. 47-48; Tr. 140-41). Inspector McDonald's review of the aircraft records found no indication that the inspection and x-ray had been timely performed (Tr. 141. 169-70. 172, 174, 178). Count I 1 charges that Respondent had operated N700XJ for over four months beyond the mandatory inspection date. 

## lFN9] AAN's April 2, 2002 letter in response to the agency's post-February 27 list of discrepancies states "Complied with at 03-30-00 records not accounted for at this time" (Exh. C-8, p. 4 (Points 16 and 17); Tr. 142). The carrier's tracking data told a different story, however. It indicated that the x-ray had been accomplished on September 18, 2001, or nearly eighteen months later than the Jetter's claim-- and an acknowledgement that the x-ray was untimely by more than one month (Exh. C-9, p. 7 (first item, "ENTRY DOOR SURROUND"); Tr. 290). The carrier insisted that its tracking data showed that the rest of the performance encompassed by the allegation had been accomplished. But 

### it could not say when. More confusion ensued because the carrier's tracking notations suggested that the structural inspection was performed on either of the two aforementioned dates, one within limits and one wifhout March 30, 2000, or September 18, 2001 (Exh. C-9, p. 6 (Columns beginning 50-00-32 and 53-00-26,-27, and -28 "CENTER FUSELAGE STRUCTURE"); Tr. 291-92). *9 I find that Complainant met its burden ofproving Count I1. Respondent was unable to offer any probative evidence tending to meet the agency's assertion that the carrier had failed to perform a structural inspection and x-ray of the major frames ofthe center fuselage section and inspection ofthe skin within prescribed limits. Respondent's evidence, moreover, was inconsistent, and allowed for a conclusion that performance was overdue. In these circumstances, Iconclude that Respondent violated**~§I** 35.2I(a) and 135-4I9(g). 9. Counts 12 and l3 The AAIP obligates the Hawker's horizontal stabilizer (Count 12) and vertical stabilizer (Count 13) to undergo a structural inspection and x-ray no Jess than every eight years (Exh. C-20; Exh. C-2I, top and bottom sections (horizontal stabilizer); Exh. C-21, middle section (vertical stabilizer); Tr. 143-44, 147-48). Each component, according to the carrier's CAMP status sheet, had been overhauled on August 13, 1993; the next inspection thus was due by August 13, 2001 (Exh. C-15, p. 48 and Tr. 145-46 (horizontal); Exh. C-15, p. 49 and Tr. 148 (vertical)). Inspector McDonald's aircraft records review found no indication in either case that the inspection and x-ray had been timely performed (Tr. 147 (horizontal); Tr. 148 (vertical), 169-70, 172, 174, 178, 198-99). Counts 12 and 13 assert that Respondent operated N700XJ for over four months beyond the deadline for mandatory inspection. [FN 10] AAN's April 2, 2002 letter in response to the agency's notification states "Complied with at 03-30-00 records not accounted for at this time" (Exh. C-8, p. 4 (Points 23 and 24 (horizontal), Point 25 (vertical)); Tr. 146-47 (horizontal); Tr. 149 (vertical)). Tracking data show that the horizontal x-ray had been "most likely" referenced by a notation showing performance on March 30, 2000 (Exh. C-9, p. 6 (column beginning "53-00-11 HORIZ STAB NTD"; Tr. 292-93); Exh. C-9, p. 7 (column beginning "55-05-08 VERTICLE [sic] STAB"; Tr. 293)). I fmd that Complainant met its burden respecting each charge. As stated, Respondenfs only evidence, its tracking notations, does not constitute a proper maintenance record entry. The carrier could not even be sure,

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moreover, if its tracking system showed accomplishment of the horizontal stabilizer x-ray. AAN, in sum, failed to counter the agency's charges that a structural inspection and x-ray ofthe aircraft's horizontal and vertical stabilizer had not been accomplished within limits. I conclude that Respondent violated §**~135.2l(a)** and 135.419(g) for Counts 12 and 13. 10. Count 14 The Hawker's AAIP also requires that its left hand wing structural inspection be performed every 4,800 hours or eight years, whichever occurs first (Exh. C-22; Tr. 151). The carrier's CAMP tracking sheet indicates that the inspection had been last perfonned on August 13, 1993 at 6,775 hours; the next inspection therefore had been due on August 13, 2001, or at 11,575 hours, whichever occurred first (Exh. C-15, p. 50; Tr. 151). Inspector McDonald's review of the aircraft records failed to uncover any suggestion that the inspection had been timely performed (Tr. 153-54, 169-70, 172, 174, 178). Count 14 alleges that the inspection had not been performed for more than four months after itbad been due. [FN II] *10 AAN's April 2, 2002 letter in response to the agency's notification states "Review of current data does not justify this call out" (Exh. C-8, p. 4 (Point 28); Tr. 153). AAN tracking data shows performance on April 30, 1999 at 9,015.9 hours, or within limits (Exh. C-9, p. 7 (columns beginning "57-00-18 INTERNAL WING"); Tr. 294-95). Complainant met its burden ofproving Count 14, I find. Respondent failed to offer any probative evidence tending to meet the agency's assertion that the left hand wing structural inspection had been accomplished within limits. Against this background, 1 conclude that Respondent violated §§ 135.2l(a) and 135.419(g) respecting Count 14. 11. Count 15 The AAJP mandates that N700XJ's left hand lower wing stringers structural inspection be performed every two years (Exh. C-23; Tr. 154). N700XJ's last overhaul, according to the tracking sheets, had been on October 19, 1999; the next therefore was due on October 19, 2001 (Exh. C-15, p. 50; Tr. 154-55). Inspector McDonald's review of the aircraft records AAN had supplied failed to uncover any indication that the inspection had been timely performed (Tr. 155, 169-70, 172, 174, 178, 198-99). Count 15 asserts that AAN operated the aircraft for more than two months beyond limits. [FN 12] AAN's April 2, 2002 Jetter in response to the agency's notification states "Complied with at 02-01-0l records not accounted for at this time" (Exh. C-8, p. 4 (Point 31); Tr. 156). Tracking data shows that performance was undertaken on February 1, 2001, or within limits (Exh. C-9, p. 7 (column beginning "57-00-06 WING BOTTOM SKIN"); Tr. 295). Complainant also met its burden of proving Count 15, l find. Respondent failed to offer any probative evidence tending to meet the agency's assertion that the left hand lower wing stringers structural inspection had been accomplished within limits. Against this background, 1 conclude that Respondent violated §§ 135.2\(a) and 135.4l9(g)respectingCount 15. 12. Counts 16 and 17 Counts 16 and 17 assert that AAN failed to follow the AAIP respecting mandatory inspection intervals for the Hawker's left hand horizontal stabilizer (Count 16) and right hand horizontal stabilizer (Count 17). Each must undergo a structural inspection no less than every eight years (Exh. C-24; Tr. 157). According to the carrier's tracking sheets, each component had been last overhauled on August 13, 1993; the next overhaul therefore had

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been due by August 13, 2001 (Exh. C-15, p. 49; Tr. 157-58). Inspector McDonald's review ofthe aircraft records AAN had supplied did not uncover any indication that the inspection had been timely performed (Tr. 159, 169-70, 172, 174, 178, 198-99). Complainant asserts in each instance that the carrier operated N700XJ for at least four months beyond the mandatory inspection interval. [FN 13] AAN's April 2, 2002 letter in response to the agency's post-February 27 list of discrepancies states "Complied with at 03-30-00 records not accounted for at this time" (Exh. C-8, p. 4, Points 32 (left hand horizontal stabilizer) and 33 (right hand horizontal stabilizer); Tr. 159). Tracking data show accomplishment on March 30, 2000 (Exh. C-9, p. 7, either the column beginning "55-00-09 HORIZ STAB" or the column beginning "55-00-14 HORIZ STAB XRAY"; Tr. 296), within limits. *11 I find that Complainant met its burden respecting each charge. As stated, Respondent's only evidence, its tracking notations, does not constitute a proper maintenance record entry. Moreover, it could not address the charges even by reference to its tracking notations. Respondent could not say which tracking notation applied to which component encompassed by these charges. In sum, the carrier failed to counter the agency's charges that a structural inspection of the aircraft's left hand and right hand horizontal stabilizers had not been accomplished within limits. 1conclude that Respondent violated §§ 135.21(a) and 135.419(g)respecting Counts 16 and 17. 13. Count 18 Finally, Count 18 charges that AAN failed to timely perform a structural inspection ofN700XJ's right hand bottom skin/stringers. This component must undergo a structural inspection at least once every two years (Exh. C23; Tr. 160). According to the carrier's tracking sheets, the inspection had last been performed on October 19, 1999; the next inspection therefore had been due by October 19, 2001 (Exh. C-15, p. 51; Tr. 160-61). inspector McDonald's review of the aircraft records failed to uncover any indication that the inspection had been timely performed (Tr. 161-62, 169-70, 172, 174, 178, 198-99). Count 18 asserts that AAN operated the Hawker for overtwo months beyond AAIP's mandatory inspection time. [FN 14] AAN's April 2, 2002 letter in response to the agency's notification states "Complied with at 02-01-01 records not accounted for at this time" (Exh. C-8, p. 5 (Point 38); Tr. 161). Tracking data shows accomplishment on February 1, 2001, orwithin limits (column beginning "57-00-06 WING BOTTOM SKIN"; Tr. 297-98). Complainant also met its burden of proving Count 18, I find. Respondent failed to offer any probative evidence tending to meet the agency's assertion that the canier had failed to accomplish a structural inspection ofthe aircraft's right hand bottom skin/stringers within limits. Against this background, I conclude that Respondent violated§§ 135.21(a) and 135.419(g) respecting Count 18. C. Further Considerations Where were the maintenance records? The carrier explained that it had earlier shipped many ofthem to the aircraft's then-owner, Borer, at the maintenance facility Borer had designated in order to facilitate a procedure known as a 48-month inspection (Tr. 179, 209, 22J-24, 232, 365). But AAN apparently failed to retain copies. Nor did it maintain a list ofrecords sent (Tr. 211, 365). In fact it had "no idea" what it sent (Tr. 211). AAN may or may not have sent to Borer maintenance records pertinent to this case (Tr. 226). Joshua Pobanz stated that "therewere no specificprocedures on copying orretainingwhat we sentthem" (Tr. 210). Nor was the carrier successful in retrieving all the records, or copies ofthem, when the agency undertook its records review. Borer

-- with whom the carrier acknowledged a rocky, "adversarial" relationship

-- returned some and not others (Tr. 211, 221, 365, 366). Pleas to return the Jog books went unheeded (Tr. 365-66). After

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N700XJ's subsequent sale, the canier attempted to obtain relevant maintenance records from the aircraft's new owner. But it failed to do so (Tr. 363-64). AAN at the time ofthe hearing was unable to ascertain the location of the missing records (Tr. 219, 232). *12 Respondent offered various defenses. In addition to its claim that its tracking notations constituted legally valid or at least adequate maintenance records (see I.D., pp. 4-5), it stated that it was unaware of the need to keep copies (Tr. 234); intimated that Borer's noncooperation absolved it of responsibility (Tr. 365-66); suggested that the numerous repair stations and owners of production rights involved with this aircraft, in addition to FAA demands, led to misplaced or misfiled records (Exh. C-8, p. I; Tr. 239); and asserted that the Jog books, had they been available, would have demonstrated total compliance (Tr. 208-09, 232, 362). These defenses faiL A carrier is responsible under the FARs for ensuring that required maintenance is accomplished for all aircraft like N700XJ on its certificate. AAN had a duty to see that all maintenance responsibilities for aircraft listed in its operations specifications were carried out under the AAlP, its agency-accepted maintenance program. Carrier officials in fact acknowledged this obligation numerous times (Tr. 221, 267, 315, 400). AAN's specific responsibility for N700XJ's maintenance, additionally, was spelled out in the carrier's management contract with the aircraft's owner. The contract stated that all aircraft maintenance would be perfonned pursuantto AAN's AAIP (Exh. C-28; Tr. 399). AAN had a concomitant responsibility to retain its records and to make them available to the FAA upon request (Tr. 163; 14 C.F.R. §91.417). Maintenance records, as the Administrator has stated, are the linchpin of the agency's enforcement efforts. Agency inspectors must be able to inspect and evaluate such records in order to fulfill their responsibility to determine whether required maintenance has been performed. [FN l5] Without effective oversight the agency's Congressional mandate to ensure and promote safety in air travel would be unacceptably compromised. AAN acknowledged these responsibilities. William Pobanz agreed that all records necessary for the certificate holder to show FAR compliance

-- specifically including repair entries, records of compliance with recurring inspections, and AD notes
-- must be kept [FN 16] But Respondent-in the many instances cited urterly failed to do so (Tr. 169-70, 174, 178). D. Penalty 1 have determined to assess a civil penalty of $49,000. l find and conclude that it is warranted by the circumstances. The carrier's failure to produce or to even to account for maintenance records was extensive. Required records were lacking for several aircraft components. In some cases no record could be produced for a component whose maintenance cycle was at a point dozens or even hundreds of units (whether landings or hours) beyond acceptable limits. The carrier also was using an outdated manuaL Its tracking references, moreover, were not only deficient as proofbut often unclear. Entries were sometimes vague and confusing and, as such, unhelpfuL Further, the carrier's explanation that it was unaware ofthe need to retain either the original or a true copy ofrequired records suggests, at best, an intolerably sloppy and unprofessional environment, and at worst an atmosphere ofwillful ignorance of its obligations. Neither scenario can be condoned. The character ofthe transgressions suggests a systemic failure to abide bythe carrier'sregulatory responsibilities. *13 Recordkeeping violations are not trifling matters. Regularized record retention enables FAA oversight. Evaluation ofcarrier records is a critical component ofthe agency's system of enforcement. In the instant matter the FAA could not effectively execute this responsibility on account of Respondent's conduct. As such, AAN

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materia11y undennined the agency's mandate to ensure safety in air transportation. The violations in these circumstances warrant a substantial civil penalty. Complainant asserted that its suggested assessment of $49,000 was appropriate in the circumstances as well as "well within'' FAA guidelines (Tr. 13-14; see Exh. C-25). General manager Stephen Gilliland argued in mitigation that the proposed fine simply was too great an amount. Such an assessment, he said, would affect the company "tremendously
... it could potentially put us out of business" (Tr. 376). But other evidence suggests that this is not the case. Complainant, in exhibits proffered after the hearing, [FN 17] showed that AAN officer salaries were more than $200,000 higher in 2003 than in 2002 with the same number of officers, and that such salaries increased a further $80,000 in 2004 (Exhs. C-l0 through C-12; Complainant's Post-Hearing Brief, pp. 8-9). These circumstances demonstrate that Respondent would not be materially financially harmed by the fine. Gilliland's credibility on other matters (seen. 4, p. 5 and n. 16, p. 14) additionally suggests that his claim must be met with skepticism. For these reasons I reject the can·ier's pleas in mitigation. 1 also find that no other mitigating factors are present. Under all the circumstances l find that a civil penalty of $49,000 is appropriate. It is commensurate with the gravity and pervasive character ofthe violations. I also find that a fine in this amount will have sufficient "bite" to deter AAN and other carriers from similar violations in the future and will promote compliance with the FARs. l hereby assess a civil penalty of$49,000 against American Air Network, Inc. in Docket CP04WPOO 13 for violating §§39.7, 91.7, 135. 21 (a)and 135.4l9(g) in Counts l-18 as described herein. [FN 18] II. Docket CP04WP0014 A. Background AAN on March 14, 2002 flew a revenue passenger between Las Vegas and Los Angeles. According to Complainant, the flight's second in command, acting under his commercial pilot certificate, lacked a current secondclass medical certificate. This was a violation, the agency asserts: a second-class medical certificate is necessary to operate as a commercial pilot (Tr. 6). Section 6l.23(a)(2) of the FARs. 14 C.F.R. §6l.23(a)(2), states that a person "[m]ust hold at least a second-class medical certificate when exercising the privileges of a commercial pilotcertificate." The agency charges that Respondent violated §l35.95(a) ofthe FARs, 14 C.F.R. §l35.95(a) (Tr. 5-6). That provision bars a certificate holder from using any person as an airman unless that person "[h]olds an appropriate and currentairman certificate."The agency seeks a civil penalty under49 U.S.C. §4630l(a)(2) of$11,000 (Tr. 6-7). *14 Respondent acknowledged the truth of the allegation (see Tr. l0, 45; Reply to Complainant's Post-Hearing Brief("Reply"), p. 2). However, it argues against liability or, in the alternative, in mitigation ofthe proposed assessment. It asserts that the violation was unintentional; that Respondent has improved its procedures to prevent a reoccurrence; and that the proposed fine is excessive and will work financial hardship on the company (see Tr. 10, 12, 46; Reply, pp. 2-3). B. Discussion and Findings The evidence showed that on March 14, 2002, Respondent operated a Part 135 flight from Las Vegas to Los Angeles in a Lear LR-24-B jet. registration number N600XJ. [FN 19] At the time the aircraft's second in com-

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mand, Jeremy Ng, lacked a valid second class medical certificate as the FARs require. Captain Ng's certificate had expired 14 days prior to the flight (Tr. 17-24, 37, 39-40; Exh. C-1; Exh. C-2, p. 3). As noted, Respondent admitted these facts. These facts establish the violation alleged. Captain Ng lacked, in the words of the operative regulation, an "appropriate and current" certificate at the time that he operated as second in command on the subject flight. C. Penalty Respondent's defense centered on penalty. It offered several reasons why the agencyts proposed assessment should be reduced, ifnot eliminated altogether. AAN general manager and director ofmaintenance Stephen Gilliland, who runs the day-to-day operations ofthe company, explained that very soon after the violation Respondent materially improved its procedures for ensuring FAR compliance. It upgraded its methods from manually checking spreadsheets to implementing flight operations tracking software (Tr. 68-70, 72-73, 81, 87, 101). The new procedures have proven effective: no transgressions have occurred in the two-plus years since the incident, Gilliland said (Tr. 70-71). He pointed out also that the company did not encourage or endorse a pilot flying with an overdue medical certificate; no monetary incentive attaches to operating a particular flight, he explained, because AAN is paid a pre-negotiated management fee on a monthly basis (Tr. 74-76). Finally, AAN, having earned a net profit ofa bit more than $287,000 in 2002, argues that the agency's proposed $11,000 civil penalty, as about four percent ofnet profits, simply is too steepto bear(Tr. 80; Exh. R-2). I have determined to assess a civil penalty of $7,000. I find and conclude that it is warranted by all the circumstances surrounding the violation. The §l35.95(a) violation in this case is much more than a papenvork oversight. It is a serious and even potentially grave transgression. An aircraft whose co-pilot cannot show that he or she meets the medical requirements for flight is an aircraft operating outside established safety parameters. Flights in such an aircraft place unacceptable risks on the safety ofpassengers and crew. The situation is ofparticular concern because the degree of danger posed is unknown (Tr. 27). As a Part 135 operator, AAN is held to the highest standard ofcare (Tr. 50). The fme must appropriately reflectthe gravity ofthe offense. *15 l reject Respondent's suggestion that the proposed civil penalty would unduly harm its fmancial picture. Complainant, in exhibits proffered after the hearing (see n. 17) showed that AAN officer salaries were more than $200,000 higher in 2003 than in 2002 with the same number of officers, and that such salaries increased a further $80,000 in 2004 (Exhs. C-10 through C-12; Complainant's Post-Hearing Brief, pp. 8-9). These circumstances clearly show that Respondent would not be materially financially harmed by the fine

-- even when considered in addition to the $49,000 penalty I assessed in -0013. And while I find the testimony asserting that AAN did not encourage or later accept or approve the overdue certificate to be trustworthy (see Tr. 28), that fact does not warrant mitigation. Evidence suggesting that AAN promoted or endorsed such a course - or that the violation had been intentional -- might have been grounds for a more severe penalty, perhaps including criminal action. See Scull H. Smalling. FAA Order No. 94-31 (September 30. 1994), n. ll; Complainant's Rebuttal Brief, p. 2. Mitigation, however, is suggested by Respondent's implementation of a new and substantially upgraded recordkeeping procedure immediately following the event. The facts surrounding the institution of the new system

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constitute, as the Administrator has put it, "sufficient, specific evidence of swift or comprehensive corrective action" warranting· penalty mitigation. [FN20] The agency, I find, failed to give this factor sufficient weight in its determination ofsuggestedpenalty. Under all the circumstances I find that a civil penalty of$7,000 is appropriate. It is commensurate with the gravity ofthe offense while properly accounting for mitigating factors. I also find that a fine in this amount will have sufficient "bite" to deter AAN and other carriers from similar violations and will promote compliance with the FARs. I hereby assess a civil penalty of$7,000 against American Air Network, Inc. in Docket CP04WP0014 for violating section**~** 135.95(a) ofthe Federal Aviation Regulations as described herein. [FN21] Richard C. Goodwin Administrative Law Judge FNl. The Complaint actually states that Respondent operated the aircraft to February 27, 2002. See, e.g., Complaint, Count I,**~II.** But the parties stipulated that the aircraft had been "flown" last on January I, 2002. Tr. 62. "Flying" and "operating" in the present context mean the same thing. Tr. 60, 61. The charge has been amended to reflectthe stipulation, which does not affectthe substance ofthe allegation. FN2. Tr. 59-61, 66-67. 74, 189; Exh. C-6. See also Tr. 56; Exh. C-7, p. 2,**~2a.** The complaint elsewhere asserts that Respondent operated N700XJ beginning November 5, 2000, when the aircraft was placed on the carrier's certificate. See Count I,**~10.** But the span ofthe charge begins on the following March 6 because an allegation occurring more than two years prior to the issuance ofa notice ofproposed civil penalty ("NPCP") to a respondent is subjectto dismissal. 14 C.F.R. § 13.208(d).See Tr. 13. FN3. Tr. 112, 124. Indeed, AAN did not disagree. Quality assurance manager William Pobanz, who is also a mechanic and pilot, acknowledged that he would not rely on CAMP for compliance and airworthiness purposes respecting certification. Tr. 235-37, 331. FN4. Tr. 227-28. AAN general manager Stephen Gilliland's assertion that he believed that FAA inspectors would be satisfied with "status sheets," i.e. tracking notations, in response to their requests (Tr. 374-75) IS, m this light, rejected as incredible. FNS. Exh. C-5; Tr. 47-50, 66-67, 191. The MMR shows a different aircraft registration number for the Hawker. Exh. C-5. Aviation safety inspector James Magill explained that a prior owner had used that number. The aircraft was the same one. Tr. 51-52. FN6. Tr. 340-41, 343-44. Inspector McDonald testified that agency inspectors are obligated to follow internal guidelines which stipulate that they issue an approval or non-approval no more than 30 days after adoption by the manufacturer. Tr. 186. FN7. Why would agency officials rely on a tracking system they themselves discredited to establish a starting point in determining ifmaintenance intervals had been followed? Inspector McDonald explained that the agency thereby gave AAN the benefit of the doubt. An initial en(ry, even if doubtful, could be used to help establish a violation. Complainantrelied on such entries in several charges. SeeTr. 125-26, 129, 133, 137, 141, 146. FN8. Respondent, moreover, could not confinn when the work supposedly was accomplished. It offered Decem-

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ber 23, 2000 (Exh. C-8, p. 3 (Point 5 under "Component Requirements")), August 18, 2001 twice (Tr 286, 287), and September 18, 2001 (Exh. C-9, p. 6). This confusion or uncertainty does not square with its expression of "high confidence" in its tracking systems. See Tr. 213-14. FN9. Tr 141, 198-99. The Complaint actually asserts that Respondent operated the Hawker for over six months beyond limits, but since the parties stipulated that AAN did not fly the aircraft after January l, 2002, the Complaint is amended (without substantive change) as stated in the text Seen. l p. 4. FN\0. Seen. 9. FN II. Seen. 9. FN \2. The Complaint alleges that AAN operated the aircraft "for approximately four months" beyond limits, but since the parties stipulated that AAN did not fly the aircraft after January I, 2002, the Complainant is amended (without substantive change) as stated in the text See also n. I p. 4. FN\3. Seen. 9. FN 14. Seen. 12. FN 15. Ca/ifiwnia Helitech, FAA Order No. 2000-18 (August II, 2000), p. 16, 2000 FAA Lexis 1212;Watts Agricultural Aviation tilh/a Growers'Air Service. FAA Order No. 9!-8 (July 5. l991 ), pp. 15-16, 1991 FAA Lexis 330,reviewden. sub. nom. Watts Aghcultura!Aviation r. Busey, 977 F.2d 594 (D.C. Cir. 1992). FN \6. N700XJ was removed from AAN's operations specifications on March 19, 2002. Tr 256. The carrier's records not already turned over to the Los Angeles FSDO pursuant to the latter's investigation were then shipped out, presumably to the entity then responsible for the aircraft's maintenance. Tr. 372-73. AAN general manager Stephen Gilliland testified that at that point he had no reason to retain any more records for the FAA because he had not yet received inspector McDonald's allegations. Tr. 373-74. This disingenuous evasion is rejected. Carrier officials knew at least three weeks earlier (February 26), and in all likelihood as least as early as February 8, ofthe agency's concerus. Tr. 87-88, 212, 245, 306-07, 309, 366-67; see LD., p. 2. FN 17. 1granted Complainant's motion without objection to admit in --0014 Exhibits C-10 (AAN 2003 Profit & Loss Statement), C-11 (AAN Profit & Loss for January through December 14, 2004), and C-12 (transcript pages 377-384 in- 0014). Exhibits C-10 and 11 had been admitted as Exhibits R-1 and R-2, respectively. See Complainant's Post-Hearing Brief, p. 8. Complainant's remaining post-hearing-motions are denied. FN\8. Any appeal from this order to the Administrator must be in accordance with section 13.233 ofthe Rules ofPractice, which requires 1) that a notice of appeal be filed no later than 10 days (plus 

### 5 for mailing) from the date ofthis order and 2) that the appeal be perfected with a written briefor memorandum not later than 50 days (plus 5 for mailing) from the date ofthis order. Each is to be sent to the Appellate Docket Clerk, Room 924-A, Federal Aviation Administration, 800 Independence Avenue, Washington, DC 20591, and to agency counseL Service upon the presidingjudge is optionaL FN19. AAN did not own the aircraft. Nor did it employ the pilots. Tr. 67. However, it is the entity holding FAAissued operations specifications for N600XJ. And AAN exercised operational control over the flight As such, AAN is considered the "operator" under the F ARs and therefore is responsible for FAR infractions; more specifically, it was Respondent's obligation to see that the pilots held current medical certificates. Tr. 19-20, 22, 33,

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41-43,67-68, 100; Exhs. C-1, C-2. Respondent so conceded. Tr. 95-96. FN20. Mauna Kea Helicopters, FAA Order No. 1997-16, p. 10-11, n. 15 (May 23, 1997); Delta Air Lines, Inc. FAA Order No. 1992-5, p. 7 (January 15, 1992). It is commendable too that AAN has since hewed to the regulatory line. But that circumstance in itselfdoes not avail 

### it. A violation-free record is expected to be the nonn. It does not mitigate an otherwise reasonable assessment. See, e.g., Toyota lvlotor S'ales, USA. Inc., FAA Order No. 94-28 (September 30. 1994); TCI Corp., FAA OrderNo. 92-77 (December22, 1992). FN21. Any appeal from this order to the Administrator must be in accordance with section 13.233 of the Rules of Practice, which requires I) that a notice ofappeal be filed no later than 10 days (plus 5 for mailing) trom the date ofthis order and 2) that the appeal be perfected with a written briefor memorandum not later than 50 days (plus 5 for mailing) trom the date ofthis order. Each is to be sent to the Appellate Docket Clerk, Room 924-A, Federal Aviation Administration, 800 Independence Avenue, Washington, DC 20591, and to agency counsel. Serviceupon the presidingjudge is optionaL 2005 WL 1805921 (D.O.T.) END OF DOCUMENT

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# Westlaw 2008 WL 4948487 (D.O.T.) Page I

2008 WL 4948487 (D.O.T.) This document has NOT yetbeen evaluated for purposes ofKeyCite andmay no longerbe valid law. Department ofTransportation (D.O.T.) Office ofHearings *I IN THE MATTEROF: AMERICAN AIRNETWORK, INC. FAA Order No. 2008-10. DocketNo. CP04WP0013. FDMS No. FAA-2004-17656

Served: October7, 2008 DECISION AND ORDER[FN2] 

# ED
' 0 211\2 

# ooo<E1

Respondent American Air Network, Inc., (AAN) has appealed the written initial decision issued by Administrative Law Judge Richard C. Goodwin on July 27, 2005. The AU held that Complainant proved that AAN, an air carrier operating under 14 C.F.R. Part 135, [FN3] violated 14 C.F.R. §§ 39.7, [FN4]9l.7, [FN5]135. 21( a), [FN6] and 135.4!9(g)[FN7] as alleged, and assessed a $49,000 civil penalty. Specifically, the AU held that Complainant proved by the preponderance ofthe evidencethat AAN hadviolatedthese regulations as alleged in Counts l through 18 ofthe complaint. In its appeal brief, AAN challenges the AU's determination that Complainant proved its case by the preponderance of the evidence regarding Counts I through 18. AAN also challenges the AU's assessment ofa $49,000 civil penalty. In this decision, the Administrator holds that Complainant proved the violations alleged in Counts I through 18. As a result, AAN's appeal is denied. A $49,000 civil penalty is assessed against AAN. I. The Pleadings. Complainant alleged in the First Amended Complaint that on or about November 5, 2000, AAN added a Hawker 125-600A aircraft, registration number N700XJ, to its Approved Aircraft Inspection Program (AAIP). An AAIP is an FAA-approved maintenance program, developed by an operator for any make or model aircraft that it uses. 14 C.F.R. §135.419. (Tr. 38.) Complainant alleged that under AAN's operations specifications, AAN was required to inspect N700XJ in accordance with the AATP. (Complaint 

# n 4 and 5.) It was alleged that AAN operated N700XJ from approximately November 7, 2000,through at leastJanuary I, 2002.**(Complaint~** 2, Tr. 7.) Complainant alleged furtherthat: • Count 1: AAN operated N700XJ for 582.7 hours in an unairworthy condition from March 6, 2001, to January 1, 2002, [FN8] by failing to comply with Airworthiness Directive (AD) 93-02-10, in violation ofSections 39.7[FN9]

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and 91.7; • Counts 2 & 3: AAN violated Section !35. 21( a) by failing to comply with its AAIP when it performed !50-hour engine and airframe inspections because AAN's employees did not complete a form required by its AAIP; • Count4: AAN violated Section 135. 21( a) by failing to keep its AAIP and manual current; • Counts 5-18: AAN violated Sections 135. 21( a) and 135.419(g) by failing to perform inspections or overhauls required by its AAIP in a timely fashion. [FN I0] II. The Evidence A. Background. AAN "is a self-described '[Part] 135 management company, tracking and fulfilling maintenance and other requirements for aircraft on its certificate."(Initial Decision at 1.) AAN had more than 30 aircraft on its certificate between November 2000 and March 2002. It conducted air carrier service for hire. (Tr. 27.) It was responsible for ensuring that maintenance was accomplished on all ofthose aircraft in a timely manner. (Tr. 3l5, 358.) *2 Jeffrey Borer, President ofXtrajet International, owned N700XJ, a British-built corporate jet that can hold up to nine passengers. (Tr. 76-77, 209; Exhibit C-28.) AAN added N700XJ to its AAIP on November 5, 2000, [FNJJ] under a management contract signed by Douglas P. Gilliland, President of AAN and Borer on behalf of Xtrajet. The contract provided that all maintenance would be performed under AAN's AAIP. AAN was responsible for tracking the hours and cycles ofN700XJ's components and engines while N700XJ was on its operations specifications (Tr. 400), and for notifying Borer when maintenance was due. (Tr. 267.) Xtrajet remained responsible for paying for all maintenance costs. (Exhibit C-28, Tr. 266-267.) Under its operations specifications, AAN was authorized to use N700XJ for operations under Part 135 provided that it inspected N700XJ in accordance with its AAIP and the Raytheon Maintenance Manual Series 125-600. (Exhibit C-3.) AAN adopted Chapter 5 of Raytheon's Aircraft 125 series, 600 Aircraft Maintenance Manual as its inspection program (AAIP), and included the AAIP in is maintenance manual. (Tr. 105, 106.) [FN 12] According to Josh Pobanz, AAN's maintenance data manager, when AAN added an aircraft to its certificate, AAN employees compared the aircraft's complete maintenance records against the manufacturer's maintenance program to determine whether the aircraft was current on its maintenance requirements. ln this way, they determined whether the aircraft was current on its maintenance requirements. (Tr_ 215, 216.) William Pobanz, AAN's manager ofquality assurance, testified that he was involved in this process when N700XJ was added to AAN's certificate. He testified that he was satisfied atthe time that there was adequate documentation to prove thatN700XJ's inspections were current. (Tr. 244.) N700XJ's last flight while on AAN's operations specifications was on January I, 2002. It was taken offAAN's certificate on March 19, 2002. (Exhibit C-l; Tr. 33-34, 95, 196, 256, 339.) AAN witnesses testified that after N700XJ was taken off AAN's certificate, they forwarded the maintenance records that they had for N700XJ to the owner in accordance with FAA requirements. (Tr. 213, 372.) Between November 5, 2000, and March 19, 2002, N700XJ accrued 828.9 hours flying time. (See Chart I.) [FN 13] Between March 6, 2001, and March 19, 2002, the time period involved in Count I, N700XJ accrued 582.7 hours. (See Chart I.) Chart 1: Flight Hours & Landings Accrued 

### ]1yN700XJ while on AAN's Operations Specifications Dates Hours Landings November5, 2000 I0,222.6 hours 8,232 landingsiFN14J

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# I March 6l 200llFN 15l I0,468.8 hours 8,40I landingstFN>eJ March 19, 2002tfNt7J !!,05!.5 hours 8,784 landingstrNtFJ FN!4. (Exhibit C-2; Tr. 44, 60.) FN 15. See n.S, supra, regarding the stale complaintrule. FN !6. (Exhibit C-6 ) 

### Page 3 of24
Page 3

FN!7. The aircraft had accrued !!.05!.5 hours and 8,784 landings by January!, 2002. The aircraft was dismantled subsequently and was still dismantled when it was taken off AAN's certificate on March !9, 2002. Thus, the aircraft's total hours and landings were identical on January !, 2002, and March !9, 2002. FN !8. (Exhibit C-9; Tr. 95-97.) B. Maintenance Tracking Systems. N700XJ's prior operator used a commercial program known as Computerized Aircraft Maintenance Program ("CAMP") [FN !9] to track maintenance requirements and accomplishment. The CAMP system works as follows. A mechanic receives a "task card,'' directing the perfonnance of a particular maintenance item, i.e., replace a life-limited 

### part The maintenance to be performed is indicated by a maintenance code. The mechanic looks up the code in the appropriate manual and then performs the required maintenance. After completing the maintenance, the mechanic signs the task card. The task card is then used to enter the maintenance information in the computerized tracking program. CAMP retains the task cards so that they can be made available for review by the FAA or others. (Tr. !88, 2!7, 240-242.) *3 A CAMP status report, dated September 2, 2000, less than 2 months before N700XJ was placed on AAN's operating specifications, was introduced into evidence as Exhibit C-15. A status report is a computer-generated document listing maintenance items by code number, and including the last time that the maintenance item was completed, how often the maintenance item mustbe performed, and when that maintenance is due to berepeated. [FN20] According to the testimony, while widely used for tracking maintenance requirements, the CAMP system is not an FAAapproved maintenance recordkeeping system (Tr. 69). It does not satisfy FAA maintenance recordkeeping requirements [FN2!] because it does not include detailed descriptions of the work performed or approvals for returning the aircraft to service. Also, while the mechanics sign the individual task cards, a CAMP status report does not contain the signatures and certificate numbers of the mechanics who performed the maintenance, and consequently does not satifisy FAA recordkeepingrequirements. (Tr. !24; seeTr. 330, 33!.) After adding N700XJ to its operating specifications, AAN adopted its own tracking system to provide alerts when maintenance items came due. AAN witnesses testified that when they adopted the new tracking system, they made manual entries into the system using maintenance records that complied with regulatory requirements (i.e., logbook entries and approvals for return to service) as their sources of information. (Tr. 206, 207, 272-276.) Subsequently, they entered new infonnation based on descriptions of work performed and signed by licensed mechanics, which they received electronically, orby mail or fax from the mechanic orrepair station. (Tr. 207-208.) Like CAMP, AAN's tracking system does not meet the regulatory requirements for maintenance records. For example. AAN's tracking system does not contain "sign offs" by maintenance personnel, including their certificate numbers, descriptions of the work that was perfonned, and approvals for returning the aircraft to service. Complainant introduced a printout from AAN's tracking system, dated February 26, 2002, [FN22] summarizing when maintenance items had been performed last and when they were next due, as Exhibit C-9. C. The Investigation. !. The Tip.On or about January 25, 2002, FAA Aviation Safety Inspector James Magill received a telephone call from an anonymous caller, who asserted that an XtraJet aircraft was operating in the Los Angeles, California, area with numerous



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discrepancies. (Tr. 30). According to the caller, the aircraft was not in compliance with an airworthiness directive, and was overdue for various inspections and overhauls. (Tr. 30.) 

### 2. Inspection at RoigWest on Februwy 8, 2002.0n February 8, 2002, Inspector Magill and FAA Aviation Safety Inspector Gregory McDonald went to RoigWest Aviation, a maintenance facility in Van Nuys, California, where N700XJ was undergoing a 48-month inspection. (Tr. 30, 31, 54, 86.) N700XJ was disassembled when the inspectors saw it. (Tr. 31.) [FN23] *4 RoigWest provided AAN's flight logs for N700XJ and other documents to the inspectors. Inspector Magill testified that RoigWest gave them numerous boxes of records and a copy of the AAIP. (Tr. 54.) Inspector Magill copied all the documents that RoigWest made available, including AAN's AAIP. (Tr. 54-55.) 3. 

### Meeting between FAA Inspectors and AAN Officials on Februwy 27, 2002.0n February 27, 2002, Inspectors Magill and McDonald met with several AAN employees, including Stephen and Douglas Gilliland, and William Pobanz, in Van Nuys, California. (Tr. 53, 88, 248, 364.) Before the meeting, Inspector Magill requested that AAN make all ofN700XJ's records available. (Tr. 87-88.) The AAN employees provided some additional records, which RoigWest had not given to the inspectors, including a printout from AAN's tracking system made on February 26. (Tr. 90, 366-367.) The AAN tracking system printout, purportedly reflecting the aircraft's status after its last flight while on AAN's certificate, was introduced into evidence as Exhibit C-9. The inspectors copied and returned all the records that the AAN officials brought to the meeting February 27. (Tr. 86,89-90, 182-183.) AAN's witnesses testified that AAN did not have a full set ofrecords at the time ofthe meeting because they had sent records to Borer so that Borer could provide them to RoigWest for the 48-month inspection. (Tr. 54, 179, 209, 223, 365.) They testified that they sent the original records to Borer, and did not keep copies or a description ofthe records that they sent (Tr. 210, 365.) Joshua Pobanz said that he did not recall which records were sent to Borer, but that they only sent documents that were pertinent to the work that had to be done. (Tr. 209-211, 223-226.) The AAN officials did not specify which records would have been needed by RoigWest for the 48-month inspection. 4. 

### The Discrepan'-Y List Prepared by FAA Inspector McDonald.After the meeting, Inspector McDonald prepared a discrepancy list based upon a comparison ofAAN's AAIP with the copies ofthe maintenance records that he had, including the records provided at the February 27" meeting. He wrote that he prepared the discrepancy list based upon his comparison ofthe AAIP with the following documents: l. Airframe Log Book from 11-2-99 to the last completed page in the airframe log dated 4/04/01. No more current airframe records were available. [FN24] 2. A C.A.M.P Systems Aircraft Status Report dated 9/22/00, pages I through 71. 3. TheAircraft Modification Logbooks from date ofmanufacture to present. [FN25] 4. TFE731-3DR-IH, Engine Serial Number P-84317 Logbook from the most recent 4200 hour inspection dated l/07/99 to present. 5. TRE7331-3DR-lH Engine Serial Number P-84316 Logbook from the most recent 4200 hour inspection dated 8/20/95 to present 6. Numerous envelopes filled with return to servicetags and FAA form 8130-3's. (Exhibit C-7 at l.) *5 In preparing the discrepancy list, Inspector McDonald used Exhibit C-9, the AAN tracking document produced on February 26, 2002, as a source for the number of hours and landings that N700XJ had accrued by that date. (Tr. 177-178.) He did not use AAN's tracking document to determine whether or when inspections and overhauls, required underthe AAIP, hadbeen made. (Tr. 177.)

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Inspector McGill sent the discrepancy list to the FAA's flight standards district office (FSDO) in St. Louis, Missouri, and requested that the maintenance inspectors at that office try to obtain from AAN the records that were necessary to resolve the discrepancies. (Tr. 56-57, 92.) Inspector McDonald received an annotated copy of the discrepancy list from the inspectors at the St Louis FSDO, indicating that some of the overhauls and inspections were "open.'' The annotated discrepancy list [FN26] was introduced into evidence as ExhibitC-7. 5. AAN's Response, Dated April 2, 2002, to the Discrepancy List.AAN responded to the list of discrepancies by letter dated April 2, 2002. Complainant introduced AAN's written response into evidence as Exhibit C-8. (Tr. 92-94.) AAN referred to airframe logbook records purportedly showing the accomplishment of particular maintenance items as early as March 22, 1995, and as late as December 24, 2001, in this letter. (Tr. 94, Exhibit C-8 at 2, 4, and 5.) [FN27] Regarding some of the listed discrepancies, AAN wrote that the maintenance had been performed but that the company could not account for the records atthattime. (Exhibit C-8.) The responses in the April 2, 2002, letter resolved some but not all ofthe issues raised by the inspectors in the discrepancy list. This action followed. Count 1: Airworthiness Directive 93-02-10. AD 93-02-l0 requires that the operator inspect the battery cables for chafing or damage at intervals not to exceed one year. If chafing or damage is found, then the battery cables must be replaced. [FN28] Under the AD, the operator does not have to repeat the annual inspections if it modifies the wiring in accordance with the instructions in British Aerospace Service Bulletin SB 24-261-3204A and B. (Exhibit C-4.) In other words, modification ofthe wiring in accordance with the service bulletinterminates the requirement for annual inspections. (Exhibit C-4; Tr. 45.) Aircraft Modification Record. Inspector Magill checked the aircraft's modification records and found an entry certifying that on August 25, 1995, the cables were inspected in accordance with AD 93-02-10. (Exhibit C-5; Tr. 47.) The entry was signed on August25, 1995, by a Garrett Aviation mechanic. (Exhibit C-5; Tr. 48-49.) Inspector Magill testified that this entry did not indicate that the AD was terminated by modification. (Tr. 50.) He explained that ifthe AD had been terminated by modification, the entry would have indicated that the rewiring called for in the servicebulletin hadbeen completed. (Tr. 51.) *6 He testified further that iftbe inspection called for by this AD was performed on August 25, 1995, the next inspection should have been completed by August 25, 1996. (Tr. 50.) He stated that he did not find any records indicating compliance witb this AD after August 25, 1995, or any record indicating that the wiring was modified so as to terminate the AD's recurrent inspection requirement. (Tr. 47, 69.) Inspector Magill requested that AAN provide documents regarding compliance with AD 93-02-10. In its letter dated April 2, 2002, AAN responded as follows: "See moditication book entry dated 1-24-94, A.D. no longer recurring."(Exhibit C-8, at 2, item 2A.) Inspector Magill checked the AD modification logbook, [FN29] but did not find an entry for January24, 1994, indicating tbat the cables had been modified in accordance with the service bulletin. (Tr. 58-59.) Examination of N700XJ ]2y FAA Inspector. Inspector Magill subsequently inspected the aircraft and determined that the wiring had notbeen re-routed so as toterminate the AD. (Tr. 59.) CAMP Status Report. The CAMP status report, dated September 22, 2000, contains an entry indicating that AD 93-02-10

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and SB 24-A261 were not applicable by modification, and that compliance with the AD was last accomplished on August 21, 1995. (Exhibit C-15 at 69.) William Pobanz testified that he interpreted this entry as meaning that the repetitive inspections called for in the AD were not required because the wiring had been modified. (Tr. 269-270.) [FN30] William Pobanz explained that if the CAMP status report was the only evidence that an operator had that the modification had been made, the operator would most likely reinspect the cables. (Tr. 271.) He testified that "in all probability" that is what happened in this ·case - that the operator inspected the cables to determine if the modification had been accomplished. (Tr. 271.) AAN Tracking Docwnent. AD 93-02-10 is not included in AAN's tracking system's list ofrepetitive inspections required by ADs dated February 26, 2002. (Exhibit C-9 at 5.) William Pobanz surmised rrom the absence of AD 93-02-10 tram this list that the modification had been made and repetitive inspections were not necessary. (Tr. 274.) Counts 2 and 3: 150-Hour Engine and Airframe Inspections. The Evidence. Under AAN's AAIP, a form entitled "Inspection Coversheet & Approval for Return to Service" must be completed after each inspection. (Exhibit C-10, page 1.) A blank copy of the form appears at page xiii of the AAIP. (Exhibit C-10, page 2.) The form has blank$ for the date, the aircraft's total time, and the mechanic's signature, certificate type and number. Inspector McDonald could not locate the completed forms (page xiii) for the required 150-hour inspections of N700XJ's engines and airrrame. [FN31] He opined that AAN violated 14 C.F.R. § 135. 21( a) by failing to use AAIP page xiii to return N700XJ to service afterthese inspections. (Tr. 104-I05.) Count 4: Revision 4 ofthe Raytheon Maintenance Manual. *7 The Evidence. AAN's AAIP provided that "the Director of Maintenance will be responsible for keeping this AAIP current and revised, as the Raytheon Aircraft 125 Series, 600 Aircraft Maintenance Manual inspection program changes."(Exhibit C-12, Tr. I05-106.) Inspector McDonald testified that in February 2002, the AAJP should have contained revision 4, dated August 2001, of the Raytheon Aircraft Maintenance Schedule. (Exhibits C-14 and C-14a; Tr. 107.) However, the AAIP that he obtained from RoigWest on February 8, 2002, contained revision 3, dated October 2000. (Revision 3 should have been replaced by revision 4.) (Exhibit C-13, Tr. 106-107.) Inspector McDonald testified that when the inspectors informed AAN that it was using an out-of-daterevision, AAN respondedthat itwouldchange the manual. (Tr. 109.) William Pobanz testified that once AAN receives a revision from Raytheon, AAN must request FAA approval to amend their manual to include the revision. He said AAN was within the "period 

### it normally takes to get a manual revised."(Tr. 284.) He testified that in his experience, it takes approximately 60 days "to be able to extract a revision out of Raytheon Aircraft, incorporate it into a[n] AAIP, submit to a Flight Standards District Office, and receive an approval, and then receive it back, and then get it disseminated out into the system."(Tr. 343.) AAN did not introduce any evidence that it submitted the revision to the local FAA office. Pobanz acknowledged on cross-examination, however, that more than 60 days had elapsed between revision 4's issuance in August 2001, and February 8, 2002, when RoigWest gave the inspectors the copy ofthe AAIP. (Tr. 344.) Counts 5 -18: Periodic Overhauls or Inspections The Evidence. Counts 5 through 18 pertained to overhauls or inspections of parts of the airrrame required periodically

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under the Raytheon 125 Series 600 Aircraft Maintenance Schedule. [FN32] Inspector McDonald used the information in the CAMP status report as a "starting point" in his records search to determine ifthe subsequent overhauls or inspections were conducted as required in the AAIP. In so doing, he testified, he gave AAN the "benefit of the doubt" that the inspections were conducted at the times indicated on the CAMP status report. (Tr. 126.) He stated that he could not find any maintenance records meeting FAA requirements that indicated that the overhauls and inspections referred to in Counts 5 through 18 had been performed on the dates indicated in the CAMP report. Inspector McDonald did not consider the CAMP status report as reliable evidence that an overhaul or inspection had been made. (E.g., Tr. 112, 124-125.) The inspector tried to determine from the records whether these recurrent overhauls and inspections were repeated after the dates on the CAMP status report. He testified that regarding each ofthe overhauls and inspections and x-rays referred to in Counts 5 through 18, he had found no maintenance record meeting regulatory requirements showing that the required maintenance had been performed in a timely fashion while N700XJ was on AAN's certificate. He concluded that each of the overhauls and inspections referred to in Counts 5 through 18 should have been repeated, but that neither the previous owner nor AAN had had those overhauls or inspections accomplished. Thus, according to Inspector McDonald, these overhauls and inspections were overdue, as summarized 

### in the following chart. Chart2: SummaryofInspector McDonald's Conclusions Regarding**Counts~=** 18. Count When last performed When next due ac- Time when N700XJ Overflown by accordingto CAMP cordingto CAMP re- was last operated report port #5: Overhaulofleft 7,304 hrs (on 8/9/94) l0.304 hrs 11,05!.5 hrs 747.5 hrs hand airbrakejack every3,000 hrs #6: Overhaul ofleft 5,602 landings (on 8,602 landings 8,784 landings 182 landings hand outboard max- I/6/93) aretevery3,000 landings # 7 & 8: Structural 8.340 hrs (on l0,740 hrs orby 1!.,05!.5 hrs 3 Il.5hrs inspection & x-ray of 12/12/97) 12112/0l ailerons every 2,400 hrs or 4 yrswhichevercomes first #9 & 10: Structural 8,340 hrs (on 10,740hrs orby ll,05!.5 hrs 311.5 hrs inspection & x-ray of 12/12/97) 12/12/01 flaps & flap vanes every 2,400 hrs or4 yrs - whichever comes firstcomes first #ll: Cabinstructural 81!3/93 8113/0l 1/l/02 Over4 months inspection & x-ray every 8 yrs. # 12 & 13: Inspection 81!3/93 8/13/0l l/l/02 Over4 months

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& x-ray every 8 yrs ofhorizontal and vertical stabilizers # 14: Inspection of 6,775 hrs on 8/13/93 left hand wing: structure evert 4,800 hrs or 8 yrs- whichever comes first # 15 & 18: Inspection I0/19/99 ofleft hand & right hand lowerwing stringers every 2 yrs #16&17:Testofleft 8/13/93 or right horizontal stabilizers every 8 yrs 

### Page 8 of24 Page 8

8/13/01 or 11,575 hrs 1/1/02 Over 4 months

I0/19/01 lll/02 Over 2 months

8/13/0I 1/l/02 Over4 months

*8 For each ofthese overhauls and inspections (except for the inspection referred to in Count 14), AAN responded in its April 2, 2002, letter that the work had been performed on a particular date but that the "records [were] not accounted for at this 

### time."(See Chart 3.) Inspector McDonald could not locate any documents meeting regulatory requirements to substantiate any ofthe infonnation provided by AAN in this letter regarding the repetition of the overhauls and inspections that were the subject of Counts 5 through 18. The inspector said that he did not consider any of the entries in AAN's tracking document regarding these overhauls and inspections because AAN's tracking document did not meet regulatory requirements. William Pobanz testified at the hearing that AAN's tracking data indicated that the overhauls or inspections had been repeated on April 30, !999, March 30, 2000, February I, 2001, or September 18, 2001. (See Chart 3.) Based upon AAN's tracking report entries, William Pobanz testified that the overhauls and inspections were not due to be repeated before N700XJ was taken offAAN's certificate on March 19, 2002. For example, as explained in Count 5, the left hand airbrakejack must be overhauled every 3,000 hours under the AAIP. William Pobanz testified that the AAN tracking document indicated that the last airbrakc jack overhaul had been on September 18, 2001, when the aircraft had 10,837.8 hours, and was next due on 13,837.8 hours. N700XJ, however, was taken offAAN's certificate at II,051.5 hours. He concluded, therefore, that this overhaul was not overdue. (Tr. 284-286.) Nevertheless, in this as well as in all ofthe other .instances, AAN was not able to produce any record meeting regulatory requirements showingthe required inspection had been accomplished. The evidence regarding Counts 5 through 18 is summarizedin Chart 3. Chart 3: Summary ofthe Evidence Pertaining to Counts

### 2:ll_, Count# & In- When last perspection orOver- formed accordhaul Description ing to CAMP report dated 9/22/00 When due according to CAMP report dated 9/22/00 When performed accordingto AAN letterdated 4/2/02 When performed accordingto AAN tracking data 2/26/02

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# 5: Overhaul of 7,304hrs on I0,304 hrs 12/23/00; "records 10,837.8 hrs on left hand air- 8/9/94 not accounted for 9/18/0I brakejackevery at this time" 3,000 hrs

# 6: Overhaul of 5,602 landings on 8,602 landmgs 3/30/00; ·'Records gear maxaretunit" left hand out- 116/93 not accounted for overhauled at board maxaret atthis time" 6,021 landings on every3,000 land- 3/30/00 ings

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### Page 9 of24
Page 9

Comparing CAMP & AAN tracking data:
Overhaul was performed 533.8 hrs late AAN's 4/2/02 response differs from its tracking data AAN tracking data does not distinguish betweenright & left. AAN trackmg data does not distinguish between right & left

On time ifperformed at 6,021 landings, but ifperformed at 6,021 landings on 3/30/00, then should have been in CAMP report & airframe logbook for 1112/99-4/4/0I. CAMP report indicates right inboard & outboard maxarets overhauled at 6,021 landings on 6/20/94, & other maintenance performed on right inboardmaxaret on 3/30/00. CAMPreport shows 6,021 landings on 6/20/94

- not on



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3/30/00, as indicated in AAN tracking data. # 7 & 8: Struc- 8,340hrs on 10,740 hrs or on 9118/01; "records 10,837.8 hrs on Comparing CAMP & tural inspection 12/12/97 12/21/01 not accounted for 9/18/01 (AAlP AAN tracking data, in- & x-ray ofailer- at this time" code 57-00-15) spections performed ons every 2,400 97.8 hrs late hrs or4 yrswhichevercomes first Wm. Pobanz testified inspections might have been under code 57-00-16, performed on 211/01 at 10,398.6 hrs. Ifso, inspections were on time, but shouldhave been in airframe logbook for 1112/99-4/4/01. # 9 & 10: Struc- 8,340 hrs on 10,740hrs or 211

### 10I ; "records Perfonned on one AAN tracking data tural inspection 12112/97 12112/01 not accounted for flap at I0,398.6 does not distinguish & x-rays offlaps at this time" hrs on 211/0I, & between right & left & flap vanes on other flap at every 2,400 hrs 10,837.8 hrs on or4 yrs 9/18/01. whichevercomes first. Comparing CAMP & AAN data, work on time for one flap & 97.8 hrs late on the other #II: Cabin 8/13/93 8113/0I 3/30/00; "records Wm. Pobanztest!- Ifperformed on structural in- not accounted for fied thathehas no 3/30/00, then, comparspection & x-ray at this time" way ofcorrelating ing CAMP andAAN every 8 yrs inspection in data, work performed Count 11 with on time. AAN data. But ifwork performed on 3/30/00, then

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shouldhave been in the airrrame logbook for 11/2/99 to 4/4/01 & CAMP report. Might have been lfperfonned on performed on 9/18/0I, then more 3/30/00 or9/18/0I than I month late. # 12: Inspection 8/13/93 8/13/01 3130100 "records Wrn. Pobanztesti- Companng CAMP & & x-ray ofhori- not accounted for fied thatinspec- AAN data, workperzontal stabilizers at this time" tion "most likely" formed on time. every 8 yrs occurredon 3/30/00 But ifworkperformed on 3/30/00, then shouldhave been in the airrrame logbook for 11/2/99-4/4/0I & CAMPreport. # 13: Inspee- 8/13/93 8113/0I 3/30/00 "records 3130100 Comparing CAMP & tion& x-ray of not accounted for AAN data, workpervertical stabilizer at this time" formed on time. cv cry 8 yrs. Butifworkperformed on 3/3/00, then should havebeen in the airrrame logbook for 11/2/99-4/4/01 & CAMPreport. # 14: Inspection 6,775 hrs on 11,575 hrs or "Review ofcur- 9,015.9 hrs on Ifperformed on ofleft hand wing 8/13/93 8113/0I rent data does not 4/30/99 4/30/99, then on time. structure every justifY this call 4,800 hrs or 8 yrs out." -whichever comes first #IS Inspection of I0/19/99 10/19/01 2/1/0I; "records 21110I for "wing AAN entry did not disthe left hand not accounted for bottom skin" tinguish between right lowerwing at this time" & left. stringers every 

### 2 yrs.

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#16&17:In- 8/13/93 8113/0I 3/30/00: "records Wm. Pobanz testispection ofleft not accounted for ficd thatthere and right hand at this time" were 3 entries for stabilizers every inspections per8 yrs formed on 3/30/00 that "could" relate to these inspections

# 18: Inspection I0/19/99 10/19/01 211/0I"records not 211/0I for "wing ofright hand accounted for at bottom skin" wing bottom this time" skin/stringers every2 yrs.

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### Page 12of24
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ComparingCAMP & AAN data, work perfanned on time. But ifwork performed on 2/1/01, then should have been in airframe logbook for 11/2/99-4/4/0l. Comparing CAMP and AAN data. ifwork performed on 3/30/00, then perfonned on time.

Ifwork performedon 3/30/00,then should have been in airframe logbook for 11/2/99-4/4/0I and in CAMPreport. AAN data does not distinguish between right & left parts. AAN entry did not distinguish between right & left.
Comparing CAMP and AAN data, ifwork performedon 2/1/01, then performed on time. Ifworkperformed on 2/1/01, then should



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The Initial Decision 

### Page 13 of24 Page 13

have been in airframe 

### logbook for 11/2/99-4/4/0l.

*9 The ALl held that Complainant proved by a preponderance of the evidence that AAN failed to comply with AD 93-02-10 after March 6, 2001, and consequently, overflew the AD. (Initial Decision at 6.) He explained that the FAA inspectors had been unable to find a maintenance record showing an inspection in accordance with the AD after August 25, 1995, or any record of modification terminating the AD's requirement for recurrent inspections despite their requests for all ofthe AD records. (Initial Decision at 5.) The ALl found that the CAMP status report and AAN's tracking printout did not meet regulatory requirements for maintenance entries and consequently, did not prove that maintenance had been performed. (Initial Decision at 5.) He also rejected AAN's contention that the absence of AD 93-02-10 from AAN's tracking system's list ofrecuning inspections proved that the AD had been tenninated by modification. The ALJ wrote, "[t]ermination must bereflected in a valid entry," but "AAN could not point to such arecord."(lnitial Decision at 5.) Regarding Counts 2 and 3, the ALl found that AAN violated Section 135. 21 ( a) because it failed to fulfill its AAIP requirements 

### by documenting the 150-hour inspections on the proper form. (Initial Decision at 6.) The ALl found that Complainant carried its burden ofproving a violation of Section 135. 21 ( a) as alleged in Count 4. He wrote, "Even under a scenario most favorable to the carrier, it employed a maintenance manual at least four months out ofdate."(Initial Decision at 7.) The ALl held that Complainant met its burden of proving that AAN violated Sections 135. 21( a) and 135.419(g) as alleged in Counts 5 through 18. The ALl held that the CAMP status report, while not proving that work had actually been accomplished, could be used as a starting point to detennine when the next inspections or overhauls were due. (Initial Decision at 7, n.7.) The ALl held further that AAN's tracking data, did not prove that the required recurrent overhauls or inspections were repeated in a timely fashion. The ALl explained that, like the CAMP entries, AAN's tracking document did not constitute probative evidence. He held that only valid logbook entries would constitute probative evidence (Initial Decision at 8), and AAN did not introduce any valid logbook entries to demonstrate that the inspections referred to in Counts 5 through 18 were accomplished as required in the AAIP's inspection schedule. Regarding each count, he held that because AAN's only evidence -·-· its tracking notations - did not constitute proper maintenance record entries, 

### it was insufficient to counter the agency's assertion that the overhauls or inspections had not been accomplished within limits. (Initial Decision at 8-13.) The ALl concluded that the overhauls and inspections were overdue, as Inspector McDonald had testified. (See Chart 2.) The ALJ noted, moreover, that AAN's tracking system was confusing because it did not distinguish between right and left parts, and because William Pobanz at times could not determine from the notations when or whether a particular procedure had been performed. ((Initial Decision at 8 (re: Count 5), 11 (re: Counts 12 and 13), and l3 (re: Counts 16 and 17.) Regarding Counts 7, 8, 9, l0, and 11, the ALl held that AAN's evidence indicated that the overhauls or inspections were performed late. (See Chart 3.) *10 Regarding the maintenance records, the ALl wrote as follows: Where were the maintenance records? The carrier explained that it had earlier shipped many of them to the aircraft's then-owner, Borer, at the maintenance facility Borer had designated in order to facilitate a procedure known as a 48-month inspection. (Tr. 179, 209, 221-24, 232, 365). But AAN apparently failed to retain copies. Nor did it main-

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tain a Jist ofrecords sent (Tr. 211, 365). ln fact it had "no idea" what it sent (Tr. 2JJ).AANmay or may not have sent to Borer maintenance records pertinent to this case (Tr. 226). Joshua Pobanz stated that "there were no specific procedures on copying orretaining what we sentthem" (Tr. 2l0). Nor was the carrier successful in retrieving all the records, or copies ofthem when the agency undertook its records review
.. (Initial Decision at 13-14) (emphasis added.) The ALJ rejected the various defenses that AAN presentedto explain awaythe missing records. The ALJ wrote: A carrier is responsible under the FARs for ensuring that required maintenance is accomplished for all aircraft like N700XJ on its certificate. AAN had a duty to see that all maintenance responsibilities for aircraft listed in its operations specifications were carried out under the AAIP, its agency-accepted maintenance program. Carrier officials in fact acknowledgedthis obligation numerous times (Tr. 221, 267, 315, 400). AAN had a concomitant responsibility to retain its records and to make them available to the FAA upon request (Tr. 163; 14 C.F.R.**~** 91.417). Maintenance records, as the Administrator has stated, are the linchpin ofthe agency's enforcement efforts. Agency inspectors must be able to inspect and evaluate such records in order to fulfill their responsibility to determine whether required maintenance has been performed. Without effective oversight the agency's Congressional mandate to ensure and promote safety in air travel would be unacceptably compromised. AAN acknowledged these responsibilities. William Pobanz agreed that all records necessary for the certificate holder to show FAR compliance

- specifically including repair entries, records of compliance with recurring inspections, and AD notes- mustbe kept. But Respondent in the many instances cited urterly failed to do so (Tr. 169-70, 174, 178). (Initial Decision at 14.) AAN's Appeal L The ALJ correctly decidedthatthe preponderance ofthe evidence showed that AAN violated Section 91.7(a). AAN argued that the Administrator should reverse the finding that AAN violated 14 C.F.R. § 91.7(a), as alleged in Count I, because Complainant failed to prove that AAN "operated" N700XJ. [FN33] According to AAN, it never flew N700XJ and, therefore, AAN did not operate it. (Appeal Brief at 12.) AAN argued further that there is no evidence that N700XJ was flown under 14 C.F.R. Part 135. "It appears that all of its flights were for the business activities ofJeff Borer under Part 91 which governs the non-commercial operation ofsuch aircraft."(Appeal Briefat I0-11.) [FN34] *II Complainant acknowledged that it did not prove that AAN "ever operated N700XJ under part 135."(Reply Brief at 14.) However, as Complainant correctly pointed out, a violation of 14 C.F.R. § 91.7(a) does not require a tinding that the aircraft was flown under Part 135. Section 91.7(a) provides simply that "no person may operate a civil aircraft unless it is an unairworthy eondition."Also, AD 93-02-10 is not limited to aircraft flying under Part 135. [FN35] Moreover, AAN's narrow definition of the term "operate" is at odds with the statutory and regulatory definitions of that term. The Federal aviation statute defmes "operate aircraft" and "operation of aircraft" as "using aircraft for the purpose of air navigation, including

- (A) the navigation of aircraft; and (B) causing or authorizing the operation qfaircraft with or without the right oflegal control ofthe aircraft.49 U.S.C. § 40I02(32) (2002) (currently § 40I02(35)) (emphasis added). The term "operate" is defmed in the regulations as follows: "use, cause to use, or authorize to use aircraft, for the purpose . ofair navigation including the piloting ofaircraft, with or without the right of legal control (as owner, Jessee, or otherwise."14 C.F.R. § 1.1 (operate) (emphasis added.) Under these defmitions, it was not necessary for Complainant to prove that AAN, rather than Borer, flew N700XJ

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between March 6, 2001, and March 19, 2002. During this period, N700XJ accrued 582.7 hours. (See Chart 1.) As long as AAN authorized the use ofN700XJ during this period, then AAN was the person operating the aircraft for purposes ofa violation ofSection 91.7. Under AAN's management contract with Borer: All flights will be dispatched through our St. Louis office. Prior to departure, the captain will fax a completed company preflight dispatch sheet and weight and balance. All changes in aircraft/itinerary will be immediately reported tothe St. Louis office. (Exhibit C-28.) In exercising its dispatch responsibility, AAN authorized all flights by N700XJ. Thus, under the terms of its contract, AAN operated all flights made by N700XJ during the period of March 6, 2001, through March 19, 2002, for purposes ofa violation ofSection 91.7(a). The Administrator has held that the person who operated an aircraft can be someone other than the individual who flew the aircraft. In In the Matter of Fenner, FAA Order No. 1996-17, an unidentified pilot flew a Cessna 182 underneath a National Guard helicopter and created a collision hazard by flying the Cessna 182 too close to the helicopter. Fenner owned the Cessna 182, but he was not on board the aircraft during those flights. The Administrator held that Fenner was the person who operated the aircraft for purposes of violations of 14 C.F.R. §§ 91.13, 91.111 and 91.\13 because the evidence showed that Fenner had given the pilot permission to use the aircraft. The Administrator based this decision upon the statutory definition of "operate aircraft" and the regulatory definition of "operate." In the Matter of Fenner, FAA OrderNo. \996-17 (May 3, 1996), affdFcnner**~** FAA, 113 F.3d 1251 (II ch Cir. \997). *12 AAN argued further on appeal regarding Count 1 that "there are sufficient maintenance notations in the record to show that AAN, as well as the owner, Jeff Borer, acted reasonably in relying on the fact that the AD modification had been complied with and, therefore, no recurring inspection is required."(Appeal Brief at 9.) [FN36] Whether AAN acted reasonably in making this assumption is not the issue; the issue is whether the modification had been made, and the preponderance ofthe evidence presented at the hearing did not support a finding that the modification had been made. The latest record of compliance with AD 93-02-10 that the inspectors found was Exhibit C-5, a page from the aircraft's modification logbooks. (Tr. 47, 69.) The mechanic who performed the work wrote in the modification logbook entry that he complied with the AD by inspecting the cables

- not that he complied with the AD by modifYing the cables. Also, the mechanic did not write in the entrythat he inspected the cables and found thatthey hadbeen modified previously. AAN wrote in its letter dated April 2, 2002, that the AD had been terminated by modification on January 24, \994. Specifically, it wrote in its letter, "See modification book entry dated 1-24-94, A.D. no longer recurring."(Exhibit C-8 at 2.) The inspector looked through the copy of the modification logbooks that he had, extending back to the manufacture of the aircraft, butdid notfind such an entry. (Tr. 58.) There was an entry in the CAMP status report that indicated that AD 93-02-10 and the referenced service bulletin were no longer applicable due to modification performed on August 25, 1995. However, this entry in the CAMP status report indicating that the cables had been modified was less probative than the entry in the modification log for the same date indicating that the cables had been 

### inspectedThe CAMP status report entry was made by a data entry clerk who reviewed information summarized on a task card, unlike the modification book entry which was signed by the mechanic who performed the work on that date. William Pobanz speculated that "in all probability," the mechanic inspected the cables on August 25, \995, to determine whetherthe modification had been accomplished. (Tr. 271.) That is, however, mere speculation.

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Inspector Magill testified that he had observed the aircraft and found that the cables had not been re-routed. AAN wrote that Inspector Magill "offered no photographic or descriptive proof of his observation. Indeed, [nspector Magill's testimony was rather ·'thin" and was conclusory in nature. If he had supported his conclusion with photographic evidence or with a fuller description ofthe wiring, i.e., where the wires should have been routed and where they were actually routed when he observed them, his testimony may have had greater value. Nonetheless, even as it was, Inspector Magill's testimony confirmed that the AD had notbeen terminated by modification. *13 None of AAN's witnesses examined the aircraft wiring. William Pobanz testified that he did not examine this area of N700XJ to determine whether the wiring modification had been made and that he could not determine from the FAA's photographs [FN37] of the battery cables whether the wiring had been modified. (Tr. 264, 265, 318-319, 354.) Pobanz testified that he showed the photographs to an associate, and that the associate said that he could not determine from those photographs whether the modification had been made. (Tr. 265.) This inconclusive hearsay evidence did not rebut the evidence pertaining to the inspector's observation. ln light ofthe above, AAN's appeal ofthe ALl's finding that it violated Section 91.7(a), as alleged in Count 1, is denied. Il. The ALJ properly found that Complainant sustained its burden of proof that AAN violated Sections I35. 2 I ( a) and 135.4l9(g) as alleged in Counts 5through 18. AAN argues that the ALJ misplaced the burden ofproof. According to AAN, neither patty had "official" records to show when the recurrent inspections were performed, and, as a result, neither could "absolutely prove the status of specific inspections" between January and March, 2002. (Appeal Brief at 5.) It argues that the ALJ found that Complainant made a primafacie case based upon the CAMP report, but that the ALJ held that AAN's tracking document did not rebut that primafacie case. It contends that its tracking document was the best available evidence that the recurrent inspections had been performed in a timely fashion. AAN objects to the ALl's insistence that AAN could only prove the status ofthe inspections through the introduction of "official" records because it had given some records to Borer for the 48-month inspection and forwarded its remaining records for this aircraft to the new owner after March 19, 2002. AAN argues, therefore, that the ALl's findings that it violated Sections 135. 21( a) and 135.419(g), as alleged in Counts 5-18, should be reversed. Preliminarily, it should be pointed out that in FAA civil penalty cases, Complainant has the burden ofproving its case by the preponderance ofthe reliable, probative, and substantial evidence. 14 C.F.R. §§ 13.223 and 13.224(a). The respondent has the burden of proving any affirmative defense by the preponderance of the reliable, probative, and substantial evidence. 14 C.F.R. §§ 13.233 and 13.224(c). The "beyond a reasonable doubt'" standard to which the government is held in criminal c.ases does not apply to FAA civil penalty cases. E.g., In the Matter of Envirosolve, LLC, FAA Order No. 2006-2 at 9 (February 7, 2006), petitionfor review dismissedEnviroso!ve, LLC v. FAA, Docket No. 06-1127, 2007 WL 273780 (D.C. Cir. January 20, 2007). Hence, contrary to what AAN appears to argue in its brief, neither patty was required to "absolutely prove the status ofthe inspections." *14 AAN did not define the term "official records." It is assumed in this decision that by this term, AAN meant records, such as logbook records, containing a description ofthe work performed, the date ofcompletion ofthe work, and the signature and certificate number ofthe individual who approved the aircraft for return to service. AAN's Joshua Pobanz acknowledged that "I must have the log book entty with the mechanic's signature on it for it to be a valid piece ofinformation."(Tr. 217.) He testified further that an operator cannot assume that work has been done if it does not have a maintenance record meeting FAA requirements showing that the work has been completed. (Tr. 230.) He acknowledged that mistakes could be made when data is entered in a tracking system, and that is why an operator needs a maintenance record meeting regulatory standards ratherthanjustatracking document. (Tr. 230.)

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While not proving that work has been accomplished, tracking records can be useful "starting points" for research in logbooks or other records that do meet regulatory standards. Joshua Pobanz testified that an entry in AAN's tracking system "would be very useful as a reference point" because it would tell you where to look in the logbook records. (Tr. 228.) Inspector McDonald made a similar point about the value of the CAMP status report. He said that an entry in a CAMP status report is not the same as a maintenance entry that approves an aircraft for return to service. He insisted that a CAMP entry does not document performance of maintenance under the FAR. [FN38] He testified that an entry in the CAMP report served as a "good starting point for the records review."He said that he used the information in the CAMP status report and the AAIP, and then examined the maintenance records. (Tr. 125.) He specifically stated that he did not acceptthe information contained in the CAMP status report as reliable information. (Tr. 125.) The problem here was that the CAMP printout referred to dates in logbooks that were not provided to Complainant. Consequently, despite their protestations to the contrary, Complainant and the ALJ both relied upon the information in the CAMP printout not as a starting point in the records search, but for proofofthe dates that the overhauls and inspections were performed. Nonetheless, Complainant proved its case by the preponderance of the evidence. Complainant made a 

### primafacie case by introducing evidence that the inspectors had requested on several occasions that AAN provide them with copies of N700XJ's records to show that N700XJ's maintenance was up-to-date. (Tr. 164.) Inspector McDonald testified that under its operating certificate and operations specifications, AAN was required to make maintenance records for aircraft listed on its operations specifications available to the FAA upon request. (Tr. 163.) This was a 30-year old aircraft, but AAN was not able to provide anything other than the tracking records to show that the periodic overhauls and inspections referred to in Counts 5 through I 8 had ever been performed. That was all that Complainant needed to make a primafacie case thatrequired maintenance had not been performed. The burden ofpersuasion then shifted to AAN to prove other- wise. *15 AAN's defense regarding the "missing" records was not compelling. AAN's witnesses testified that they gave some ofthe records to Borer prior to the 48-month inspection. But the FAA inspectors copied all ofthe boxes of records that RoigWest had. There is no reason to believe that Borer gave RoigWest less than a complete set ofthe records that AAN gave him. Also, there is no way to know whether AAN gave Borer any records that were pertinent to any ofthe inspections referred to in Counts 5 through I8. AAN's witnesses testified that AAN shipped "partial records" to Borer for the 48-month inspection but did not keep copies of the records or a list of which records had been sent. (Tr. 209-21 I, 223, 365.) Josh Pobanz testified that he did not know whether they had shipped the overhaul or the inspection records to Borer. (Tr. 225-226.) Stephen Gilliland testified that Borer did not return any of the records. (Tr. 366.) This testimony was contradicted by Josh Pobanz who testified that Borer returned "partial records" but since they did not keep a detailed account of what was sent, he could not say whether Borer returned everything to AAN. (Tr. 21 I.) Even ifBorer retained some ofthe records, there is no way to know whether he retained any of the records that related to the inspections and overhauls in Counts 5 through I8. Stephen Gilliland testified that he had no reason to retain any records after the aircraft was removed from AAN's certific. ate, and indeed was obligated to transfer all of the records to the new owner under the regulations. The ALJ correctly found this testimony to be "disingenuous" [FN39] because AAN officials knew about the FAA's concerns at least three weeks earlier by February 26, and probably even as early as February 8. [FN40] The inspectors first requested all ofthe

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records after they visited RoigWest on February 8, 2002. They made additional requests prior to the aircraft's transfer on March 19. Finally, Gilliland's claim is contradicted by the testimony of William Pobanz. Pobanz testified that he did logbook research to help prepare AAN's April 2, 2002, letter in response to the discrepancy list. (Tr. 320.) AAN argues that the Complainant "had the full authority to obtain and copy all the records from any ofthe new owners, in order to prove their allegations," but "chose not to do so" relying instead upon the inspector's examination of incomplete records. (Appeal Brief at 12.) AAN, however, was required under its operations specifications to provide the records to the FAA upon request. 

## lFN41] (Tr. 163.) AAN argues that in the absence of"official records," the ALJ should have found that the entries in its tracking document were the best available evidence and that they rebutted Complainant's primafacie case. However, there was ample evidence to show that the entries in AAN's tracking records were notreliable. *16 AAN's system did not track right and left hand parts separately. For example, regarding the structural inspections of the right hand and left hand flap vanes, AAN's tracking document has two entries for inspections of the "flaps." (Exhibit C-9 at 7, code no. 57-00-17). The entry does not differentiate between the right and left hand flap vane inspections. This inspection was required every 2,400 hours or every 4 years, whichever came first. According to one entry for "flaps", the last inspection was performed on February I, 2001, at 10,398.6 hours, and was due to be repeated by 12,798.6 hours. The other entry indicated that the inspection was last completed on September 18, 2001, at 10,837.8 hours, and was due to be repeated no later than September 30, 2005. A mechanic would not be able to tell from these entries which flap vane had been inspected on February I, 2001, and which had been inspected on September 18, 2001. (See Chart 3 regarding Counts 5, 6, 9, 10, 15, 16, 16, 18.) William Pobanz was uncertain about which AAN tracking document entries correlated with some of the inspections required by the AAIP and referred to in the amended complaint. Regarding Count 12, Pobanz testified that the inspection ofthe horizontal stabilizer was "most likely" reflected in an entry for "Horiz Stab NTD" on March 30, 2000. (Tr. 293.) He was also unsure regarding the inspections referred to in Counts 16 and 17. (Tr. 297.) He testified that there were three entries relating to the horizontal stabilizer in AAN's tracking document that "could" relate to the inspections referred to in Counts 16 and 17. (Tr. 297; Exhibit C-9 at 7, entries for code no. 55-00-09, 55-00-14, and 55-00-10.) (See Chart 3.) He was also tentative about the inspections ofthe ailerons referred to in Counts 7 and 8. The entry in AAN's tracking system for the overhaul ofthe gear maxaret unit illustrates the error-prone nature oftracking documents. Count 6 refers to the required overhaul of the left hand outboard maxarct every 3,000 landings. The entry in AAN's tracking system that, according to William Pobanz, correlated with that inspection was an entry for the gear maxare! unit completed on March 30, 2000, at 6,021 landings. The entry does not distinguish between the right and left or the inboard and outboard maxarets. The entry for the gear maxaret unit overhaul at 6,021 landings on March 30, 2000, is obviously in error in light ofthe fact that the aircraft had accrued many more landings by March 30, 2000. When N700XJ was added to AAN's certificate on November 5, 2000, the aircraft had accrued 8,232 landings. (Exhibit C-2.) Also, the CAMP report indicated that the right inboard maxaret and the right outboard maxaret (not the left outboard maxaret which is the subject of Count 6) were overhauled on June 20, 1994, at 6,021 landings. The CAMP report also indicates that other work -notthe overhaul referred to in Count 6- was performed on the right inboard maxaret on March 30, 2000. *17 Another reason that AAN's tracking document appears unreliable is because 

### it has a number of entries tOr overhauls and inspections that were made on March 30, 2000, and February I, 2001, but there are no corresponding entries in the

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airframe logbook dated November 2, 1999, through April 4, 2001, for that work. (See Chart 3, regarding Counts 6, 9, 10, 11, 12, 13, 15, 16, 17, 18.) According to the discrepancy list, Exhibit C-7, the inspectors had access to the airframe logbook for the time period ofNovember

### 2; 1999, through April4, 200 I. AAN argued that a negative inference should be drawn against Complainant because it objected to AAN 1s discovery request for records. As the agency attorney explained in its reply brief, Complainant objected to the request for records because the request was untimely. (Reply Brief at 16.) AAN did not file its request for production until after the date that the ALJ had set for the completion ofdiscovery. AAN could have, but failed to, file a motion to compel production ofthe records. At no time did the ALJ issue an order compelling production ofthose records. AAN failed to protect its own interests by filing atimely request for discovery or by seeking an orderto compel production. As a result of the foregoing, AAN's appeal regarding the ALl's findings that AAN violated Sections 135. 21( a) and 135.419(g) is denied. III. Complainant proved ]2y the preponderance ofthe evidence that AAN violated Section 135. lli 

### ill regarding Count 

### :1: Qy failing to incorporate revision 4 ofthe Raytheon Aircraft Maintenance Schedule in its manual. Regarding Count4, AAN argues as follows: • Neither party introduced " any .. probative evidence as to the industry standard for accomplishing amendments and obtainingFSDO
... approval'' • Neitherparty introduced a copy ofrevision 4; • "The FAA could not point to any substantive changes which caused this aircraft to be unairworthy during what FAA characterized as excessive time to accomplish the paperwork revision and approval by the FAA." (Appeal Briefat 9.) These arguments can be disposed of easily. Preliminarily, it should be noted that AAN did not present any evidence to show that it had taken any steps to incorporate revision 4 into its manual. Revision 4 was issued in August 2001 - 6 months before the inspectors obtained a copy of the AAIP from RoigWest in February 2002. William Pobanz testified that it usually took about 60 days to obtain a revision from Raytheon and FAA approval to change its manual by incorporating a revision. Even ifthat evidence is accepted as true, the manual should have been updated about 4 months earli-er. AAN's argument that there was no evidence that its failure to update its manual led to improper maintenance causing the aircraft to be unairworthy is also rejected. Section 135. 21( a) only requires that the certificate holder keep its manual current. No finding ofunairworthiness, as a result ofthe out-of-date manual, is necessary under Section 135. 21 ( a). [FN42] *18 Finally, there was no need for Complainant to introduce a copy ofrevision 4. All that was necessary was for Complainant to introduce evidence that the AAIP that it received from RoigWest contained revision 3, not revision 4, and proofofthe issuance date ofrevision 4. Complainant introduced this evidence. IV. No reason has been presented to disturb the ALJfs finding that Complainant proved Qy the preponderance ofthe evidence thatAAN violated Section 135.lli

### illregarding Counts;?_ and

## .1 On appeal, AAN does not make any arguments pertaining specifically to the AU's findings that it violated Section 135. 21( a) as alleged in Counts 2 and 3. AAN only argues generally, as it did regarding the findings ofviolations alleged in Counts 5 through 18, that records were missing because it had given some records to Borer for the 48-month inspection and had forwarded records to the new owner after N700XJ was taken off its air carrier certificate. As discussed previously, AAN's vague excuses for not having the records are not compelling. Consequently, AAN 1s arguments do not war-

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rantreversing the AU's tindingthat AAN violated Section 135. 21 (a)as alleged in Counts 2 and 3. V. The $49,000 civil penalty is appropriate in

## lli:.!l\ofthe multiple violations and FAA sanction

## !12l.iu guidance. AAN argues that the $49,000 civil penalty assessed by the AU was too high. AAN argues that it is a small company "which has only recently been able to afford its twelve employees.''lt argues that a $49,000 civil penalty is excessive when compared to the $33,000 civil penalty that the FAA sought against the City of Chicago for destroying a Federally funded airport. [FN43] (Appeal Briefat 13.) AAN's argument is rejected. As previously stated, "it is often difficult to compare sanctions across cases because there are so many variables involved in each case." In the Matter ofPacific Aviation International, FAA Order No. 1997-8 at 3 (February 20, 1997), 

### dismissedfor lack of prosecution, Pacific Aviation International Y., FAA, No. 97-1298 (9'h Cir. June 11, 1997). The two cases are simply not comparable; the violations and the authority to assess civil penalties for such violations could not be more different. [FN44] The sanction sought by Complainant and assessed by the ALJ, importantly, is consistent with guidance provided in the Compliance and Enforcement Program, FAA Order No. 2150.3A. Under the Sanction Guidance Table, the following sanctions are appropriate against an aircarrierfor a single-violation: • A maximum civil penalty to a 7-day suspension for failure to comply with inspection and overhaul time limitations. [FN45] • A moderate to maximum civil penalty for failure to comply with airworthiness directives. lFN461 • A maximum civil penalty for operation of an unairworthy aircraft with a non-conformity which has an adverse effect (actual or potential) on safe operation.[FN47] 

### *19 • A suspension until manuals are made current, to a 7-day suspension and continuing thereafter until manuals are made current. [FN48] A maximum civil penalty for an air carrier ofAAN's size at the time ofthese violations ranged from $6,500 to 11,000 per violation. [TN49] In this case, significantly, N700XJ was overdue for 14 overhauls and inspections and was not in compliance with an airworthiness directive. In light of AAN's multiple, serious violations and the agency's applicable sanction guidance, the $49,000 civil penalty assessed by the AU is reasonable. As the AU quite aptly wrote, the $49,000 civil penalty "is commensurate with the gravity and pervasive character ofthe violations."(Initial Decision at 15.) Conclusion For the foregoing reasons, AAN's appeal is denied. This decision affirms the findings of violations made by the AU (except for the violation of 14 C.F.R. § 39.7), although the Administrator does not, as explained in this decision, adopt all ofthe AU'sreasoning. A $49,000 civil penalty is assessed. [FN50] Robert A. Sturgell Acting Administrator Federal AviationAdministration I. Materials filed in the FAA Hearing Docket (except for materialsfiled in security cases) are also available for viewing atthe following Internet address: www.regulations.gov. For additional infonnation, see http:// dms.dot.gov. FN2. The Administrator's civil penalty decisions, along with indexes ofthe decisions, the rules of practice, and other infonnation, are available on the Internet at the following address: 

### http:l!www.faa.gov/about/office

_ orgl headquarters_officeslagclpol_adjudication/AGC400/Civil Penalty.ln addition, Thompson/West publishes Federal Aviation Decisions. Finally, the decisions are available through LEXIS (TRANS library) and WestLaw (FTRAN-FAA }latabase). For additional information, seethe Web site.

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FN3. An aircarrier operating under Part 135 may fly passengers and property for compensation orhire. (Tr. 26.) FN4. Section 39.7 ofthe Federal Aviation Regulations (FAR) provides as follows: Whatis the legal effect offailing to comply with an airworthiness directive? Anyone who operates a product that does not meet the requirements of an applicable airworthiness directive is in violation ofthis section. Section 39.7 was added to the Federal Aviation Regulations (FAR) when Part 39 was re-written in July 2002. 67 Fed. Reg. 48.003 (July 22, 2002). Before July 2002, there was no Section 39.7. As will be discussed further in this decision. AAN took this aircraft off its operations specifications in March 2002, and N700XJ's last flight, while on AAN's operations specifications was on January 1, 2002. Hence, the alleged violations occurred before Part 39 was re-written and before Section 39.7was addedto the FAR. Complainant could have alleged a violation of former Section 39.3, 14 C.F.R. § 39.3, which provided that "no person may operate a product to which an airworthiness directive applies except in accordance with the requirements ofthat airworthiness directive."However, Complainant failed to do so, and Complainant is bound by the allegations contained in its Amended Complaint. In the Matter of Webb, FAA Order No. 1990-10 (March 19, 1990). As a result, the Administratorreverses the ALl's finding that AAN violated 14 C.F.R. § 39.7. This determination will have no impact on the sanction in this case because the facts that were the basis of the alleged violation of Section 39.7 were also the basis of the alleged violation of Section 91.7(a). As will be discussed laterin this decision, the Administratoraffirms the ALl's finding ofthe violation ofSection 91.7. No further substantive discussion concerning the alleged violation ofSection 39.7 in this decision is necessary. FN5. Section 91.7(a) ofthe FAR provides as follows: "No person may operate a civil aircraft unless it is in an airworthy condition." FN6. Section 135. 21 (a) ofthe FARprovides as follows: Each certificate holder
... shall prepare and keep current a manual setting forth the certificate holder's procedures and policies acceptable to the Administrator. This manual must be used by the certificate holder's flight, ground, and maintenancepersonnel in conducting its operations. FN7. Section 135.419(g) of the FAR provides as follows: "Each certificate holder who has an approved aircraft inspectionprogram shall have each aircraftthat is subject to the program inspected in accordance with the program." FN8. Complainant alleged in Count I that AAN violated N700XJ from March 6, 2001 (rather than from November 7, 2000), to January I, 2002, because of the stale complaint rule, 14 C.F.R. § 13.208(d)(l). The stale complaint rule provides that violations that occurred more than 2 years before the issuance of the notice of proposed civil penalty are subjectto dismissal as stale. FN9. Seen. 4, supra. FNI0. Complainant alleged in each count that AAN operated N700XJ beyond the time for a required inspection or overhaul by a specific number of hours. For example, in Count 5, Complainant alleged that AAN operated N700XJ 747.5 hours beyondthe mandatory overhaul time for the left handairbrakejackcomponent. FNII. (ExhibitC-2.) FN12. An air carrier operating under Part 135 must include its AAlP in its manual. 14 C.F.R.' § 135.419(e). AAN's AAIP was included in its operations specifications (Tr. 38), which is incorporated in AAN's manual.

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FN 13. (Exhibits C-2 and C-9, Tr. 44, 60, 95-97.) FN 19. (Tr. 112.) FN20. For example, the left wing structural inspection referred to in the AAIP as Code Number 570016- the subject of Count 14 -must be repeated every 4800 hours, or 8 years, whichever comes first. The CAMP entry for this inspection included the following information (although itwas formatted differently): Code No. 570116 

### Description Inspect Left Wing Struct Required Every 4800 hrs 96 mas Last Compliance 6775 hrs 8/13/93 5658 ldgs Next Due 1!575hrs 8/13/01
FN21. 14 C.F.R. § 91.417 (maintenance records); see also14 C.F.R. §§ 43.9 (maintenance records) and 43 II (inspection records). FN22. By the time that AAN made this printout fTom its tracking system, AAN had stopped using N700XJ. FN23. N700XJ was in pieces in RoigWest's hangar between January 2, 2002, and March 2002. (Tr. 96.) It was still disassembled on March 19, 2002, when it was taken offAAN's operations specifications. (Tr. 257, 318.) FN24. The overhauls and inspections that were the subject of Counts 5 through 18 should have been documented in the airfrarhe logbooks. However, when they prepared the discrepancy list, the FAA inspectors did not have access to the airfTame logbooks prior November 2, 1999, orto the airfTarne logbooks afterApril 4, 200I. FN25. William Pobanztestified that the modification book is part ofan aircraft's permanent maintenance records. (Tr. 274.) FN26. The discrepancy list is undated. (Exhibit C-7.) FN27. The letter indicates that airframe records were attached, but the copy of the letter introduced into evidence had no attachments. FN28. This AD was issued to prevent circuits on this type of aircraft fTom overheating and causing a fire. (Exhibit C-4; Tr. 45.) FN29. The FAA inspectors had access to a complete set ofthe aircraft modification logbooks, fTom the date of manufacture tothe time ofthe investigation. (Exhibit C-7 at 1.) FN30. He testified that he would not have accepted this CAMP entry as evidence that N700XJ was compliant and airworthy for purposes ofadding the aircraft onto AAN's certificate. (Tr. 331.) FN3 I. Inspector McDonald was concerned that AAN had not performed the required !50-hour inspections on N700Xl's engines and airframe. He included these inspections on the discrepancy list. In response, AAN provided a copy ofa different form signed by the mechanic who performed these !50-hour inspections on December 24, 2001. (Exhibit C-11.) After reviewing the submission, the inspector was satisfied that the 150-hour inspections had been performed. FN32. A detailedcount-by-count summary ofthe evidence is presented in the ALJis written initial decision.

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FN33. Complainant alleged that AAN violated Section 135. 21( a) in Counts 2 through 18, and that AAN also violated Section 135.419(g) in Counts 5 through 18. Neither section requires a fmding that AAN operated the aircraft. Section 135
. .21( a) requires a certificate holder to prepare a manual, use that manual, and keep 

### it current Section 135.419(g) requires a certificateholder to have each aircraft subject to its AAIP inspected in accordance with that AAIP. Further, to prove the violations alleged in Counts 5 through 18, Complainant only had to show that due to N700XJ's accrual oftime (i.e., hours, landings), AAN should have, but failed to, ensure that required overhauls and inspections were performed in accordance with its AAIP. FN34. There is no evidence in the record to substantiate AAN's claim that N700XJ was only operated under Part 91 by Borerto conduct his personal business during the relevanttime period. FN35. To be airworthy, an aircraft must (1) confom1 to a type design approved under a type certificate or supplemental type certificate and to applicable Airworthiness Directives: and (2) be in a condition for safe operation. 

### l!! the Matter of Ace Pilot Training, FAA Order No. 2005-12 at 9-10 and n.19 (August 17, 2005) (respondent acted in a careless or reckless manner by operating an unairworthy aircraft; aircraft was unairworthy because actions required by two ADs were not accomplished); In the Matter of Kilrain, FAA Order No. 1996-18 at I0 (May 3, 1996), 

### reconsideration denied, FAA Order No. 1996-23 (August 13, 1996), 

### petitionfor review denied, Kilrain y, FAA, No. 96-3587 (3'' Cir. May I, 1997) (mechanic returned aircraft to service when it was in an unairworthy condition; aircraft was unairworthy because requirements ofan AD were not met.) FN36. The inspectors did not find any evidence of inspections in compliance with this AD following the AugtLst 25, 1995, entry in the modification logbook. (Tr. 47, 69.) AAN did not contend that annual inspections of the cables had been made in accordance with the AD. It took the position that the AD had been terminated by modification, and no inspections wererequired after January 24, 1994. FN37. Nophotographs were introduced at the hearing. FN38. Inspector McDonald quite colorfully testified as follows about the CAMP statusreport: This is a tracking document that basically says - it's not -a regulatory document. It just says this is the part, this 1s when it's due, this is when it's next due. The interesting thing about this document, speaking of computers, garbage in/garbage out. So you can tell in CAMP systems that this is when something was done. It may or may not have been done at thattime, but it is documented on this report. (Tr. 112.) FN39. To the extent that the ALl's finding that Gilliland's claim was disingenuous was based upon a credibility determination, it should be noted that an ALl's credibility findings are not overturned lightly on appeal. As has been held in the past, an ALl's credibility findings are entitled to special deference on appeal because the ALJ is in the best position to observe the witness's demeanor. E.g., In the Matter ofConger, FAA Order No.2007-8 at 13 (August 2, 2007.) FN40. This case is similar to the High Exposure decision. In that case, the owner testified that he did not have records to provide to the FAA inspectors because he had given them to the insurance company after the aircraft was involved in an accident. However, the owner did not know the exact date on which he had given the records to the insurance company, and on re-direct examination, he acknowledged that the FAA had requested the records before he had turned them over to the insurance company. In the Matter ofHigh Exposure, FAA Order No. 2003-7 at 11-12 (September 12. 2003). FN41. The Administrator rejected a similar argument in the High Exposure case. High Exposure argued on appeal that Complainant should have contacted the several shops that had performed maintenance on this aircraft in the past to see 

### if

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they had any documents that would show that the work required by the ainvorthiness directives had been perfonned in a timely fashion. The Administrator rejected the argument, explaining that "Complainant was not obligated to represent at the hearing that 

### it had contacted each maintenance shop but found no records" because Complainant only had to prove its caseby the preponderance ofthe evidence, not beyond a reasonable doubt. FAA Order No. 2003-7 at 13. FN42. However, if the aircraft was unairworthy as a result of the ccttificate holder's failure to update its maintenance manual, then ahigher sanction would be appropriate. FN43. The case to which AAN refers, In the Matter of the City of Chicago, FAA Docket No. CP05GL0014, was dismissed by the ALl by order dated September 25, 2006, after the parties reached a settlement, and withdrew the request for hearing and the complaint. FN44. In the City of Chicago case, the Complainant alleged that the City violated 14 C.F.IZ. § 157.5(b)(2) by failing to give the FAA 30 days prior notice before deactivating an airport. Complainant sought a $33,000 civil penalty. Under 49 U.S.C. § 4630\(a)(\), the City of Chicago was subject to a civil penalty not to exceed $1,!00 for each regulatory violation, and under 49 U.S.C. § 4630l(a)(4), a separate violation occurred each day that the violation continued. Consequently, each day that the City of Chicago failed to provide notice of the deactivation constituted a separate violation. Complainant sought the maximum civil penalty: $1,I00 for each ofthe 30 days that the City failed to provide advance notice. FN45. FAA OrderNo. 2150.3A, Appendix 4, at page 4 (I)(C)(l). FN46. FAA OrderNo. 2150.3A, Appendix 4, atpage 4 (!)(B). FN47. FAA OrderNo. 2150.3A, Appendix4, at page 6 (I)(L)(3). FN48. FAA OrderNo. 2150.3A, Appendix4, atpage 4 (I)(A)(I). FN49. With more than 30 aircraft on its certificate and an annual net income in 2002 of $287,062, AAN was a Group II air carrier for sanction purposes. See Compliance and Enforcement Bulletin No. 92-! (January 16. 1992), included in FAA Order No. 2150.3A, Appendix 1, at page 103-105. (A Group II air carrier is defined in Appendix I at page !06, as "All air carriers that hold Part !2\ operations specifications and large Part 135 operators (50 or more pilots or 25 or more aircraft on operations specifications), 

### with annual operating revenue of less than $100,000,000.") The maximum civil penalty range for a single violation for a Group II air carrier was $6,500 to II,000, and the moderate civil penalty range was $3,500 to $6,500. See Compliance and Enforcement Bulletin No. 92-1 at page 106 and 14 C.F.R. Part 13, Subpart H (2002) (entitled "Civil Monetary Penalty Inflation Adjustment.") FN50. This decision shall be considered an order assessing civil penalty unless Respondent files a petition for review within 60 days of service ofthis decision with the U.S. Court ofAppeals for the District ofColumbia Circuit ofthe U.S. court of appeals for the circuit in which the respondent resides or has its principal place of business. \4 C.F.R. §§ 13.16(d)(4), \3.233(j)(2), 13.235 (2007).See71 Fed. Reg. 70460 (December 5. 2006) (regarding petitions for review of final agency decisions in civil penalty cases.) 2008 WL 4948487 (D.O.T.) END OF DOCUMENT



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2004WL 3105998 (D.O.T.) This documenthas NOTyetbeenevaluatedforpurposes ofKeyCite and may no longerbe valid law. DepartmentofTransportation (D.O.T.) Office ofHearings *1 FEDERALAVIATIONADMINISTRATION, COMPLAINANT, v. AIRSUNSHINE, INC., RESPONDENT. FAA DocketNo. CP03S00040.

DMSNo. FAA-2003-16047. (Civil Penalty Action) Served December20, 2004 INITIALDECISIONOFADMINISTRATIVE LAWJUDGE BURTONS. KOLKO Found: That 1) Respondent has violated 14 C.F.R. §43.13(a) and 14 C.F.R. §§135.21(a), 135.41l(a)(l), and 135.421(a) as charged; 2) Respondentis liable to and is herebyassessed a penaltyof$15,000. I.Background Air Sunshine, Inc., is a 

### Pmi 135 commuter air carrier with offices at the Fort Lauderdale (Fla.) International Airport ("the Airport" or "FLL") aod at San Juan, Puerto Rico (Tr. 19-20). The agency, by its Southern Region, charged the carrier with violations of 14 C.F.R. §§43.l3(a), 135. 21( a), 135.4ll(a)(l) and 135.421(a) for failing to follow applicable manuals aod procedures when installing a wheel/tire assembly on a Cessna 402-C aircraft operated by the carrier. Section 43.13(a) requires each person performing maintenance to use the methods prescribed in the manufacturer's maintenance manual. Section 135. 21( a) directs maintenance personnel to use manuals. Section 135.411(a)(l) requires Part 135 aircraft to be maintained pursuant to Part 43. And section 135.421(a) obligates Part 135 certificate holders to comply with the manufacturer's recommended maintenance programs. Based on the two flights that Air Sunshine undertook following its allegedly improper corrective action andthe overall circumstances surrounding the incident, the agency seeks a civilpenalty of$20,000 (see Tr. 14). An oral evidentiary hearing was held in Miami, FL on October 28, 2004. I determined that a written decision was reasonable andmost appropriate underthe circumstaoces (Tr. 182-83). The burden is on the agency to prove its case 

### by a preponderance ofreliable, probative, and substantial evidence (14 C.F.R. §13.224).



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ll.Discussion and Findings I fmd and conclude thatthe agencyprovedthe violations. Deciding this matter turns largely on the credibility of those directly involved in the matter. The three FAA inspectors who played a role in investigating the incident (two of whom were witnesses) believed that Respondent had failed to properly and completely perform the necessary corrective action before undertaking two flights

- actually one round-trip

- later the same day. The mechanic who actually had performed the repair testified that he had accomplished it according to the operative manuaL The carrier's chief inspector, who is also one of the company's owners, concurred. And the Cessna's pilot supported the company's witnesses. As detailed below, careful consideration of all the evidence and circumstances has led me to conclude that the inspectors were credible and that their version of events generally \VaS accurate. Conversely, the testimony of the carrier's witnesses largely was unworthy ofbelief. My findings show thatRespondent comntittedthe violations alleged. *2 FAA maintenance inspectors John Diaz and Gary Justice were working at the agency's Flight Standards District Office (FSDO) at the Airport on July 27, 1999, when another inspector, Richard Shaffer, alerted them to an ongoing maintenance situation involving a twin-engine Cessna 402-C aircraft operated by Respondent. The aircraft was stopped on a taxiway with its left main tire flat (Tr. 20, 23-25, 89; Exh. A-1). Carrier personnel replacing the tire, in inspector Shaffer1S view, were not performing the repair in accordance with the Cessna maintenance manual. [FNl] He mentioned to the other inspectors that installation of the main wheel and tire assembly

- the necessary procedure when a flat tire is removed and replaced - must include a landing gear retraction test (Tr. 29, 42, 98; Exh. A-2, '\[ B.(7)). Inspectors Diaz andJustice decidedto follow up (Tr. 24, 29-31, 89). The two inspectors called at the Air Sunshine facility later that afternoon (Tr. 31). Inspector Diaz talked to the mechanic who was primarily responsible for performing the repair, Alexander Carmona (Tr. 31-32). Carmona said that he and an assistant mechanic, Freddie Cricien, had taxied the Cessna to the Air Sunshine hangar and then had performed the tire change with the proper tools. Inspector Diaz took him at his word (Tr. 32, 35; 

### see also Tr. 147). Diaz asked Carmona if he had performed the gear retraction test. The Cessna maintenance manual in terms directs maintenance and repair personnelwho install a mainwheel/tire assemblyto Retract gear and insure that gear has sufficient clearance through up and down travel. Wheel must be able to turn inwheelwell in retracted position. Exh. A-2, '\[ B.(7); Tr. 38. Carmona responded "What gear retraction?" (Tr. 36, 37, 102-03, 125-26). He testified that he then asked, "Why do we have to do a gear retraction test?" [FN2] The replacement tire was the same size as the tire he had removed (Tr. 36, 37), he stated, the implication being that the wheel-rotating check the complete test requires would be duplicative and irrelevant (Exh. A-5; 

### see Tr. 40-42). Allen Adili, Air Sunshine's presidentand chiefinspector, agreedthattheprocedure was "unnecessary" and "overkill" (Tr. 165). Inspector Diaz answered Carmona1s questions simply 

### by noting that the procedure for installing the main wheel/ tire assembly is set out in the Cessna maintenance manual and that maintenance personnel must respect all ofits terms (Tr. 39, 40, 92, 139). Allen Adili at this moment was standing by Carmona. Adili had not been present during the repair (Tr. 176), but Carmona had assured him that he, Carmona, had accomplished the task according to the manual's requirements (Tr. 101). Adili at this point could have defended his mechanic and volunteered that Carmona had indeed performed the gear retraction test (Tr. 39). Adili surely was aware that his company couldbeultimately responsible for any transgressionunderthe circmnstances. He saidnothing (Tr. 38-39, 156).

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*3 The inspectors returned to their office. After'"discussing the matter, Diaz called Respondent. He spoke to another carrier official, Mike Adili (Allen Adili's brother), infonning him that the carrier had to accomplish a gear retraction test before the Cessna next left the ground. Mike Adili responded that the aircraft had already been dispatchedto the Bahamas and was onits way back (Tr. 40, 43; Exh. A-5). A day or two later, FAA inspectors Diaz and Justice returned to Air Sunshine and requested the carrier1S relevant maintenance records (Tr. 44-45, 55). Diaz specifically asked for evidence that the gear retraction test bad been performed (Tr. 54). Respondent provided them with copies ofthe Cessna's daily log. [FN3] The log showed that on July 27, 1999, the day that the inspectors spoke to mechanic Carmona, the aircraft had flown from FLL to and from a point in the Bahamas. This trip took 2.2 hours. At thatjuncture the aircraft had operated a total of 19,622.0 hours (Exh. A-3; Tr. 48-49). The log further notes, per the Cessna's pilot, Hassan Moslemi, that the airplane's "left tire went flat on taxiway" (Exh. A-3; Tr. 149). This discrepancy occurred upon landing at FLL (Tr. 51). The log noted corrective action: "Replaced left tire bled the system," a notation signed offby Air Sunshine chiefinspectorAllenAdili (Exh. A-3; Tr. 52, 54, 161). The next sequential log sheet shows that on the 

### 27th of July, the aircraft again operated for 2.2 hours on a FLLBahamas round trip. Operating time now totaled 19.624.2 hours

- the 19,622.0 hours recorded by the earlier log following the completion of the earlier round trip plus the additional operating time of 2.2 hours. On this later log Allen Adili noted, "Gear retraction was satisfactory" (Exh. A-4; Tr. 58). From the notations on the consecutive logs, Inspectors Diaz and Justice concluded that Air Sunshine had performed a gear retraction test only after the secondround-trip flight to the Bahamashadreturned (Tr. 58-60, 62, 92). Inthis conclusionI must agree. As inspector Diaz testified, ifthe carrier had performed the gear retraction test prior to the second flight

- that is, at the time the tire had been changed

-- the individual responsible would have so signed offon the earlier daily log (Tr. 59; see Exh. A-3). In addition to noting the tire replacement, the signee specifically noted that the system had been bled. That person certainly would have noted the gear retraction test had it been performed (Tr. 60). But the log contained no such statement. Respondent brought the time-in-service forward. It flew the aircraft. And only after the second flight did it set down, on the later-in-time log, that the gear retraction test had beenperformed. A second set ofdocuments, the carrier's C-402 Discrepancy Reports, also memorialized the incident and the corrective action following it. In the first discrepancy report, entered after the aircraft had completed 19,622.0 hours - that is, at the same point that the daily log noted the flat tire and consequent action of replacing and bleeding the system
- Mr. Carmona noted simply that he had "replaced left main tire
... [a]ccording to Cessna Maintenance 32-40-00."In a Discrepancy Report entered at 19,624.2 hours

- after the second FLL-Bahamas round-trip

-- Allen Adili recorded a "Retraction Test
... Performed VAIW 32-00-00 [sic]." 

### [FN4] The discrepancy reports agree with the daily logs. They reinforce the inspectors' conclusion that the gear retraction test had beenperformedonly afterthe secondFLL-Bahamas flight ofJuly 27ili. *4 That the gear retraction test was performed iS not noted in the first discrepancy report; it is recorded only in the second

- which was completed after the second FLL-Bahamas flight ofJuly 27 (Exh. A-9). The conclusion is inescapable that the company performed the gear retraction test only after it had operated a round-trip flight following the initial wheel!tire assembly installation, and after the agency had brought the matter to its attention (Tr. 62). Respondent's curious reply (Exh. A-7) to the FAA's letter of investigation (LOI) of July 29, 1999 (Exh. A-6)

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provides further evidence of violation. The reply never denied the agency's contention that the carrier had not accomplished a gear retraction test as part of its corrective action. Instead, the reply quibbled with the agency's methods, [FN5] and, in the same vein as Carmona and Allen Adili, complained that "Cessna's recommendation in this case may indeed be an overkill
... the manufacturer's procedures may not always be the best procedures

..." (Exh. A-7, 114 (p. 2)). The reply also claimed that the agency could have stopped the second flight to the Bahamas and blamed it for failing to do so. Itpetulantly added that maintenance crews "have been lectured and retrained about the importance of following a check list each and every time."Finally, it asserted that safety had notbeencompromised (Exh. A-7, 11114, 5 (p. 2); Tr. 67-68, 75). Nowhere in Air Sunshine's nearly 500-word resp'onse, signed by general manager Moe Adili (a brother ofAllen and Mike Adili), does the carrier address, much less deny, the 

### agencis contention that its initial corrective action had failed to include a gear retraction test (see Exh. A-6; Tr. 64-65, 67). This omission is telling. For the LOI specifically invited Air Sunshine to speak to the matter - a matter constituting the very basis for the FAA's investigation (Exh. A-6). When an entity invited to conttovert an allegation adverse to its interests fails to do so, admission of the allegation may be inferred (Tr. 73-74). Failure to contest an assertion is evidence of acquiescence ifitis naturalunderthe circumstances to object. [FN6] Finally, to state that crewshavebeen "retrained" additionally suggests an admission ofincorrectprocedures (Tr. 75). Based on the foregoing, I find and conclude that Air Sunshine's actions constitute violations of §§43.13(a), 135. 2l(a), 135.4ll(a)(l), and 135.42l(a) (Tr. 80-81). Respondent disputed this evidence. But its testimony and supporting documentation, considered in light of all the evidence, fail to warrantjudgment in its favor. Air Snnshine's contentions either were the product of understandable confusion or simply incredible. The preponderance of the reliable and probative evidence shows that the carrierviolatedthe regulations itis charged withtransgressing. Alexander Carmona, the principal mechanic on the job, asserted that he committed no violation. He maintained that "we followed the book, the Cessna repair manual" (Tr. 99); "everything
... was done properly," he insisted (Tr. 125). He testified specifically that he and the second mechanic (actually an assistant mechanic) had performed the gear retraction test in the hangar prior to the aircraft's second round-trip flight that day (Tr. 121, 138). Why, then, in his response to inspector Diaz' query, had he questioned the necessity ofthe gear retraction test? Merelyto underscore that therequirement didnotmake sense, he maintained (Tr. 138-39). *5 Carmona's testimony is not compelling. The carrier's O\Vll documentation of the repair refutes 

### it. That evidence clearly shows that the gear retraction test was accomplished only after the Cessna's second FLL-Bahamas round-trip that day. Carmona offered nothing to warrant exalting his self-serving words over the plain import of both the daily logs and the discrepancy reports. Additionally, Carmona's two-question response to inspector Diaz

- essentially, "What test?" and "Wby?" (!.D., p. 3)

-- independently suggests strongly that he had failed to timely perform the gear retraction test. Had he accomplished the test, he simply would have answered Diaz1 question in the affirmative. It defies reason that he would have made the argumentative responses noted had he performedthe work. Allen Adili also differed with the inspectors' version ofevents. He argued that Carmona's notation on the C-402 Discrepancy Report that the mechanic had accomplished the task "according to Cessna Maintenance 32-40-00" (Exh. R-1) meant that the mechanic had performed all the necessary steps set out by the manual reference. Set-

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ting down "Chapter X" indicates that the signee took all steps listed in Chapter X, he said. It is not necessary to list each step (Tr. 159, 178). Substantial and significant evidence in this case, however, critically undermines this argument. On two different forms performance of the gear retraction was specifically noted when it had been accomplished. The conclusion naturally follows that the lack of a record indicates that the task had not been performed. Additionally, Carmona's argumentative answer to inspector Diaz, and the carrier's reply to the agency's LOT (see I.D , pp. 3, 5) each reinforce the conclusion that the test had not been timely accomplished. Allan Adili's argument cannot overcome these factors. Adili of course did not actually see Carmona carry out the gear retraction (Tr. 176; !.D.,p. 3). Allen Adili's factual testimony generally was not credible. Several examples suffice. When inspector Diaz asked Carmona he had performed the gear retraction test, Adili, who was present, claimed that Carmona had answered "Yes" before asking "Wby?" (Tr. 163)

- an assertion favoring Carmona that even the mechanic had not maintained. It makes no sense, moreover, for Carmona to have responded "Yes" followed 

### by "What test?" (see LD., p. 3). Adili's testimony contained furfher embellishments. He stated that he heard Carmona assure Diaz that he, Carmona, had performed the wheel/tire assembly change "according to [the] Cessna maintenance manual" (Tr. 162). But Carmona never testified that he so answered Diaz. As stated a number of times previously, Carmona responded with questions about the gear retraction test. He did not assert that he had alluded to the manual (see, e.g., J.D., p. 3). Finally, Allen Adili contended,that, after inspector Diaz had urged Mike Adili to perform the gear retraction test as soon as possible, he personally "did it again" (Tr. 170, 171, 181). The entries in the second daily log and discrepancy reports for that day (Exhs. A-4 and A-9, respectively) are the record ofhis work (Tr. 171). This claim simply strains credulity. If the test had been performed twice on that day, why, then, did only the later logs and discrepancy sheets reflect it? And why, if (as Adili maintained) Carmona answered "Yes" to inspector Diaz' query about performing the .test, would Adili have done it again? The witness had no satisfactory answer for that. His testimony as a whole suggests an individual who freely bent the truth so that his company couldescape culpability. [FN7] *6 Finally, Hassan Moslerni, who piloted both FLL-Bahamas flights that day (Tr. 147, 151), supported Carmona. He said that he saw mechanics Carmona and Cricien perform the gear retraction test after the Cessna had taxied back to the hangar (Tr. 148)

- that is, prior to the second flight. I fmd that Mr. Moslemi simply was mistaken. He piloted two FLL-Bahamas flights that day. More than five years after the events, it is understandable that he would confuse them. The weight ofthe trustworthy evidence shows that the gear retraction test was performed only after the second round trip had touched down. What Moslemi saw, I find, occurred following the second flight. 

### III. Penalty Complainanthas askedfor a civil penalty of$20,000. I have decidedto assess a penalty of$15,000. Respondent's failure to follow the requirements of the operative maintenance manual and to perform the gear retraction test before operating two flights materially compromised safety. The consequences ofthis conduct could have been perilous. If a gear sticks in the wheel well and does not come down, an aircraft would have to land with its gear up. This is a significant safety concern (Tr. 41-42). Respondent's behavior risked material harm to the passengers and crew ofthe two flights operated after the incomplete repair. Respondent asserted, however, that safety was never in issue. It replaced the flat tire with a tire ofthe same size, it said, thus obviating any problems with movement of the landing gear. Even if its contention is sound,

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however, the carrier1s failure to test leaves open the possibility that the mechanics inadvertently substituted a tire of the wrong size (Tr. 41-42). The gear retraction test, of course, would uncover such a mistake, but failure to perform it would not. It must be assumed, moreover, that all steps of a corrective action specified by a manual have a sormd reason behind them. They must be performed in every case. Mechanics cannot be permitted to pick and choose which procedures to follow and which to ignore. The performance of Respondent1S mechanics, I find, exposedthe travelers to unacceptablerisk. In support of its proposed assessment, the agency cites its Enforcement Sanction Guidance Table (Order 2150.3A, Appendix 4; Exh. A-8). The Table sets out suggested ranges of fmes depending on the circumstances surrounding the violation. For an air carrier committing a single violation, the maximum range of fmes suggested is between $7,500 and $10,000. Inspector Diaz, who set the proposed penalty, determined that an assessment of$10,000 perflight following the repairwas appropriate, or atotal fine of$20,000 (Tr. 78; 

### see also Tr. 195). I fmd and conclude that the circumstances surrounding the incident warrant a civil penalty in the amount of $15,000. While it is true that Respondent's actions exposed the crew and passengers to an unwarranted level of risk, Complainant offers no reason - and I see none - for assessing the maximum penalty suggested by the Table. [FN8] The circumstances ofthe transgression were not marked by the kind ofegregious conduct generally associated with imposing the maximum possible fine. 

### See Delta Air Lines, Inc.,FAA Order 96-19 (June 4, 1996), pp. 9-10. Respondent did not perform the full corrective action set out in the maintenance manual because it did not see the need for it. While this was wrong, it did not engage in arguably egregious behavior such as trying to cover up its inaction or failing to accomplishthe test as soon as the inspectors so prodded it. *7 Militating toward a fine in the maximum range, on the other hand, is the fact that the carrier did intentionally igoore the gear retraction test requirement. It performed the test only after the FAA came looking around. That circumstance, plus the risk to which it needlessly subjected its passengers and crew, yet warrant a civil penalty in the maximum range suggested by the agency's Guidance Table. An assessment at the low end ofthis range, I conclude, is appropriate. It is commensurate witQ the carrier's behavior and with the resulting risk. The fme also will enforce compliance with the FARs by Respondent and will act to deter potential violators among this and other carriers. [FN9] For the foregoing reasons, I hereby assess a civil penalty of $15,000 against Air Sunshine, Inc. for violations of 14 C.F.R. §43.13(a) and 14 C.F.R. § §135,2l(a), 135.411(a)(l), and 135.42l(a) as charged. [FNlO] Burton S. Kolko Administrative LawJudge FNI. Exh. A-5. Specifically, the mechanics, according to Shaffer, lacked certain necessary tools; further, they had installed a cotter pin contrary to Cessna and FAA standard practices. Exh. A-1; Tr, 25-26. These matters ultimatelywere not a factor inthe agency's complaint. Inspector Shaffer, originally listed as a witness, was unable to attend. Tr. 9. Two days after the incident he had set do\Vll events in a memo to inspectorDiaz. ExhibitA-1; seeTr. 27-29. FN2. Tr. 36, 37, 38, 40, 102-03, 139, 141; Exh. A-5. Later in the hearing Carmona contradicted himself and denied that he had first asked "What gear retraction?" Tr. 139. The evidence suggesting that he had, however, is more persuasive. 

### It was his initial testimony, which he repeated; further, inspector Diaz, to whom he was speaking, corroboratedthattestimony.

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FN3. Although witnesses sometimes referred to this document as an aircraft log, chiefinspector Allen Adili explained that 

### it was correctly known as and used as a daily log. This log is customarily transcribed and then transferred to the aircrafes maintenance logbook. Tr. 172. FN4. Exh. A-9; Tr. 109, 115. "32-00-00" was written in error. Adili had meant to write, as Carmona did, "32-40-00." Tr. 179-80. "1/A!W" means "inaccordance with." Tr. 179. The C-402 Discrepancy Reports (Exhs. A 9 and R 1) were used by the carrier simply as discrepancy reports despite the language in them stating that they were to be completed in conjunction with a 60-hour service check. Tr. 116. FN5. Paragraph 2 of the response states that "we feel the more appropriate action [on FAA's part] should have been an immediate telephone call to Air Sunshine1S maintenance manager to ensure that the work 

### by that particular crew is supervised and double checked rather than being concerned with what time the flight has become airborne so enforcement data canbecollected." FN6. 

### United States v. Hale, 422 U.S. 171, 176 (1975). Moreover, the carrier's argument blaming the FAA for failing to stop the second flight is misplaced. The carrier is responsible for knowing proper maintenance procedures. Conversely, it was not the agency's responSibility to forestall violation. In any event inspector Shaffer had communicated concerns about the mechanics' corrective action when the aircraft was still on the taxiway and before ithadbeenbroughtinto the hangar. Exh. A-1; Tr. 70-71. FN7. Allen Adili also testified that after Carmona had taxied the aircraft into the hangar to accomplish the repair, he warned the mechanic that FAA agents would be coming around, so "make sure you do it correctly,
.. You do everything according to the book."Tr. 158, 167, 183-84. This ingratiating testimony did not enhance Adili's credibility. FN8. The maximum fine per civil penalty actually has been $11,000 since January 21, 1997, when it was adjusted from $10,000 pursuant to the Federal Civil Penalties Inflation Adjustment Act of 1990, 28 U.S.C. §2461. 

### See 14 C.F.R. §§13.30113.305. But the amounts set out in the Enforcement Sanction Guidance Table have not changed, and the discussion conforms to the limits stated therein. See Warbelow's Air Ventures, Inc., FAA Order 2000-3 (February 2, 2000). FN9. That the carrier "lectured" ·its employees about their responsibilities, as stated in its reply to the agency's LOI (Exh. A-7; !.D., p. 5), does not warrant a lower assessment. Simple reminders ofpre-existing duties do not ordinarilyjustify a reduction in an otherwise reasonable civil penalty. 

### Northwest Airlines, Inc., FAA Order No. 98-22 (November 10, 1998); 

### Mauna Kea Helicopters, FAA Order No. 97-16 (May 23, 1997). Respondent's answer also claimed that it "retrained" employees**~Exh.** A-7; !.D., p. 5) - a situation which in some circumstances wouldjustify a civil penalty reduction 

### (Trans WorldAirlines, Inc., FAA Order No. 1999-12 (August 23, 1999))- butit offeredno evidence ofthat claim, and so it is not considered. FNlO. Any appeal from this order to the Administrator must be in accordance with section 13.233 of the Rules ofPractice, which requires I) that a notice ofappeal be filed no later than 10 days (plus 5 for mailing) from the date ofthis order and 2) that the appeal be perfected with a written briefor memorandum not later than 50 days (plus 5 for mailing) from the date of this order. Each is to be sent to the Appellate Docket Clerk, Room 924-A. Federal Aviation Administration, 800 Independence Avenue, Washington, DC 20591, and to agency counseL Service upon the presidingjudge is optional.



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