U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASIDNGTON, D. C. 

IN THE MATTER OF: DOCKET NO. FAA-2011-1125 

ELITE AIR, INC. FAA CASE NO. 2010S0150236 

Respondent Judge J.E. Sulli'fi. 

JUL i G 2IIil 

D 

COMPLAINANT'S RESPONSE TO RESPON~A·~ . "' . .. MOTION FOR SUMMARY 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 

Complainant cannot establish that Respondent failed to conduct pre-flight inspections or failed to 

use its General Opercations Manual. Respondent further asserts that at most Complainant can 

establish that Respondent failed to properly complete flight manifests as required by the General 

Operations Manual. Additionally, Respondent maintains that Complainant abused its discretioJ£ 

by proposing a civil penalty for the Federal Aviation Regulations (FAR) violation because a civil 

penalty violates FAA Order 8900.1. 

STATEMENT OF THE FACTS 

Respondent's General Operations Manual provides that, as part of the 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 

Respondent has operational control of all aircraft operations, including the actions or inactions of 

1 
all direct employees or agents of the Respondent. (Exhibit 3, Paragraphs (b)(l), (d)(l)(a)). At 

the time of the violations alleged in the Complaint, Respondent utilized more than one pilot. 

(Exhibits 6-8) (showing two pilots per flight). 

On April 12, Aviation Safety Inspector (ASI) William Meenan, the Principle 

Maintenance Inspector for Respondent at the time, conducted an inspection of N444CW. 

(Exhibit 4). N444CW is operated by Respondent 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 by Elite Air show that 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 of the administrative action, Respondent conducted pilot training in the completion 

of Form EAI-301. (Id.). 

Based on the information discovered by ASI Meenan, Complainant issued a complaint 

alleging of Respondent that (1) its General Operations Manual requires the Pilot-in-Command to 

enter the inspection due dates and times in the Aircraft Flight Manifest (Form EAI-301 ), (2) prior 

to seven Part 135 flights between June 15, 2010, and August 12, 2010, the Pilot-in-Command 

failed to enter the inspection due dates and times on Form EAI-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 summary judgment because the undisputed facts establish 

that Respondent 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 a civil penalty for Respondent's violation ofF AR 135.21(a). 

I. SUMMARY JUDGMENT FOR RESPONDENT IS INAPPROPRIATE 

A party may file a motion for summary judgment where the pleadings and supporting 

documents establish that no factual issues exist, and that the party is entitled to judgment as a 

matter of law. 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 of Practice). Federal Rules of Civil 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 to judgment as a matter of law." 

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 that Respondent violated FAR 135.21(a) when its flight personnel failed to 

complete Form EAI-301 as instructed in Respondent's General Operation Manual. See id. 

Therefore, it is irrelevant whether or not a pre-flight inspection was conducted by Respondent, as 

the relevant inquire is whether Respondent failed to comply with its General Operation Manual's 

requirements for completing Form EAI-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 of the 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 the Next Time Limited item due, and (3) the number of cycles of the Next 

Cycle Limited item due. See id.; Exhibit 2. 

Form EAI-301 for N444CW flights on July 20, 2010, and July 22, 2010, shows that Elite 

Air operated one Part 135 flight on each of those dates. See Exhibit 7. The Pilot-in-Command 

failed to enter (1) the ending APU Hours, (2) the number of cycles of the Next Cycle Limited 

item due, and (3) the date for the Next Date 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 on August 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 of cycles of the Next Cycle Limited item due, and (4) the 

date for the Next Date 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 when its Pilot-inCommand failed to enter the inspection due dates and times in the Form EAI-301. See Exhibit 3 

(making Respondent responsible for the inactions of its employees or agents in failing to 

complete Form EAI-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 

more than one pilot "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 maintenance personnel in conducting its operations." 14 

C.F.R. § 135.2l(a). Here, it is undisputed that Respondent utilizes 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 of Administrative 

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 of American 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 of Administrative Law Judge Kolko In the Matter of Air Sunshine, Inc., FAA 

Docket No. 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 to judgment as a matter of 

law regarding the fact that Respondent violated FAR 135.21(a). 

1 Copies of the two Administrative Law Judge decisions and the FAA Administrator decision cited in this paragraph 

are attached for convenience. · 

5 
C. COMPLAINANT DID NOT VIOLATE 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 action to take for noncompliance with the 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 generally FAA Order 8900.1. 

Respondent maintains in its motion that FAA Order 8900.1 Subsection 14-143(A)(3)(a) 

requires administrative action in this case. See Respondent's Motion for Summary Judgment at 

4. The Subsection provides: 

"Enforcement personnel take administrative action or informal action for 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 

correction for these kinds of low risk cases. When a certificate holder corrects low 

risk violations on the spot, it is acceptable to use administrative action or informal 

action (oral or written counseling) after the correction to close these 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, Respondent has presented no evidence that it corrected the FAR 135.2l(a) violation on the 

spot by accurately completing the missing information in the Relevant Form EAI-301 when ASI 

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 8 is 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 of this 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 of FAA 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 of the requirements for administrative 

action is that the violation does not indicate a trend of noncompliance. I d. 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 misconduct by an individual, or by 

the same department, section or group of a 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." I d. 

Prior to the instant violation, Respondent previously received an administrative warning 

letter related to violations of FAR 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 

between June 15, 2010, and August 12,2010. See Exhibits 6-8. These continued violations after 

prior administrative action suggests the beginning of a trend of noncompliance. See FAA Order 

8900.1, Subsection (C)(4). Therefore, Order 8900.1 permits legal action, and the Complainant 

did not violate any Order by seeking a civil penalty. 

7 
CONCLUSION 

No genuine issue of material fact exists that Respondent violated its General Operations 

Manual when it did not enter the inspection due dates and times on Form EAI-301 on seven Part 

135 flights between June 15, 2010, and August 12, 2010. Therefore, the undisputed facts show 

that Complainant, not Respondent, is entitled to summary judgment regarding the FAR 13 5.21 (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 

sunnnary judgment should be denied. 

Respectfully submitted this 28th day of June, 2012. 

R 

~»\-~ AN M. LANDERS 

Attorney 

Office of the Regional Counsel 

8 
CERTIFICATE OF SERVICE 

I hereby certify that the Complainant's Response to Respondent's Motion For Summary 

Judgment has been mailed this date via regular and certified mail to: 

Federal Aviation Administration (original and one copy) 

800 Independence Avenue, S.W. 

Washington, D.C. 20591 

Attention: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building- Suite 2Wl 000 

The Honorable J.E. Sullivan 

Administrative Law Judge 

Office of Hearings, M-20, Room El2-320 

U.S. Department of Transportation 

1200 New Jersey Avenue, SE 

East Building Ground Floor 

Washington, DC 20590 

B. Gray Gibbs, Esq. 

100 Second Avenue South 

Suite 101-S 

St. Petersburg, FL 33701 

~~AroEq)TAJf~y~ Legal Assistant 

Office of the Regional Counsel 

JUN 2 8 

Dated 

(one copy) 

(one copy) 

9 
ELITE 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 D 2012 

In order to advise the flight crews of the maintenance status of tht'llfrt:~i~.l,itlJ(bf}~(ET Maintenance will publish EAI-1 06 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. EL T battery replaced on or before the date listed by the manufacturer or after one hour 

of cumulative 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-1 
EAI-301 Aircraft Flight Manifest 

Dates:(1) Tail No. N(2) 

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0 

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Rev. 12 

1 rov'~' 1 No. 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) 

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0 

0 

0 

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ELITE AIR, INCc S-5/ R-42/15-May-2008 

GENERAL OPERATIONS MANUAL 

INSTRUCTIONS FOR COMPLETION OF EAI-301 

1. Enter the date(s) of flights. 

2. Enter the tail number of aircraft. 

3. Enter the 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. Enter the 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. Enter the beginning APU hours prior to flights. Time is entered in hours and tenths. 

If the 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. If the aircraft does not have an APU, enter N/A. 

14. Enter the total of hours and cycles after this series of flights. 

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. Enter the date that particular flight began. 

18. Enter the time in Zulu that duty day began for that series of legs. Pilots need not fill 

this segment if the leg is preceded by other flights conducted during the same duty 

day. 

19. Enter the airport of original for that particular leg. 

20. Enter the destination airport for that particular leg. 

21. Enter the time in Zulu that the aircraft begins taxiing. 

22. Enter the time in Zulu that the aircraft takes off. 

23. Enter the time in Zulu that the aircraft lands. 

24. Enter the 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 or SIC. 

30. Enter the total instrument time for that 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 for that 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 off weight 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 off weight for this leg if a Part 135 leg. Enter N/A if the 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 if the 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 if the 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 if the leg is a Part 91 leg. 

40. Enter the fuel (in pounds) on board at engine start. 

41. Enter the fuel (in pounds) on board at engine shutdown. 

42. Enter the 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-1 06). 

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. Enter the facility used to conduct the VOR ops check if checked. 

48. Enter the frequency of the facility used to conduct the VOR ops check if checked. 

49. Enter the bearing to or from the facility for VOR Receiver #1. 

50. Enter the bearing to or from the facility for VOR Receiver #2. 

51. Enter the 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 of the check. 
U.S. Department 

of Transportation 

Fed era! 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 of operational control described in subparagraph d. below must be included or descr!b·~~ ilt.A:bi.,.,"i' 

system. 

T~e system of operational control is described in Section A of the 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 of aircraft operations, 

and thus the safety of each f1ight conducted under this certificate and operations specification, including 

the actions or inactions of all direct employees and agents of the 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 of the following practices and shall not: 

( l) Franchise or share the certificate holder's authority for the conduct of operations 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 or enter 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 crewmember to the certificate holder. A lease, or other business- arrangement with a lease, is 

considered a wet lease if any of the 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 

1 1l 2012 

A008-l 

Elite Air, Inc. .... 

-.... 

GOVERNMENT 

EXHIBIT 

FM·'I 
U.S. Department 

of Transportation 

Federal Aviation 

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 of an aircraft for operations under these operations 

specifications without a complete, effective and sustainable transfer of operational control to the 

certificate holder for all Part 135 operations conducted under these operations specifications. 

d. Elements of Operational Control. The following items are essential elements of operational control 

and are required to be components of the 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 of the certificate holder's crewmembers is: 

(a) The certificate holder's direct employee or agent during every aspect of the 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 of these 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 I 35, and is otherwise qualified to 

accept the specific flight assignment, considering flight and rest requirements, airspace qualification and 

the type of operation intended in the assignment. Each pilot must be specifically listed by name and 

airman certificate number on a list of pilots maintained by the certificate holder at its main base of 

operations or listed in operations specification A039 or A040, if applicable. This information must be 

available for inspection by the Administrator as specified in Section I 35.63. 

(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 

of its Part 135 flights; or 

(b) Leased by the certificate holder or otherwise in the legal custody of the certificate holder 

and remains in the certificate holder's exclusive possession or custody during all of its Part 135 flights. 

(c) For each aircraft which the certificate holder uses under these operations specifications, the 

aircraft owner or other lessee of the aircraft may operate the aircraft under Part 91, under the control 

and responsibility (including potential liability for an unsafe operation) of the owner or other lessee, as 

long as the following condition is met 

~The certificate holder ensures that the maintenance of the 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.: EOY A592J 
Inspector Statement 

On September I 2, 20 I 0 I performed a ramp inspection on Cessna Citation 

N444CW at Sanford FL. During the course of this inspection I observed 

that Elite Air was operating N444CW and not following the procedure set 

forth in the General Operations Manual (GOM) pertaining to the 

determination of aircraft airworthiness inspections prior to flight. The GOM 

requires the Director of Maintenance to issue a maintenance inspection 

status sheet form (EAI- I 06) and for the Pilot in Command to review the 

aircraft status and transfer the inspection due times to the flight manifest 

form (EAI-30 I). This procedure was not being followed by Elite Air 

personnel. N444CW was operated on a series of 7 flights under FAR I 35 

between 6/15/20 I 0 and 8/12/20 I 0. When I questioned the Maintenance 

Manager Mr. Paul Becktal about why this procedure was not being followed 

he stated he was unaware of the Elite Air GOM requirement for this 

procedure and used a different method of checking the status of inspections, 

specifically the Cescom aircraft status report. He stated he would take the 

matter up with the Elite Air Director of Maintenance. 

fo/~~- William D. Meenan 

PMI 

GOVERNMENT 

EXHIBIT 

EM-'t 
U.S. Department 

of Transportation 

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 

25876 t 

258836 

3 IA-108 

3 lA-132 

31A-119 

45-2092 

RB-259 

BAE-125-800A 

BD-100-IAIO 

BD-700-IAII 

BE-400-400 

CE-650-CIT AT! ON Ill 

CL-600-2816 

DASSAULT-FALCON-2000EX 

EMB-135-BJ 

HAWKER-750 

HA WKER-850XP 

HA WKER-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-s 
I:.LII 1:. ( ', IN(.;. 

GENER:. -OPERATIONS MANUAL 

S-4/R-36/15-SEP-20{ -

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TF>1c ;:Cus. I No.: CW-001 05 

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~~Date Due: 

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GOVERNMENT 

EXHIBIT 

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=-~"'--·-----~--------

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GOVERNMENT 

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:•:•:•:•:.r fii········· Atr, . Inc. EAI-301 Rev. 12 FM·a 
U.S, Department 

of Transportation 

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 September 2, 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 a time-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 18.6 flight hours accumulated hF>t'nr.,J,-~-~­

flight manifest was updated with the correct next-due time. The flight crews initiated a 

with information that an inspection could be over flown and then continued the flights 

information that an inspection had been over flown, contrary to 14 CFR § 135.21 (a). 

This is to confirm our discussions with you from September 30, 2008, at which time correc:~Foo;.-;;,;;;­ action was begun. You conducted pilot training in the completion of your Aircraft 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 November 20, 2008. 

In closing this case, we have given consideration to all available facts and concluded that 

matter does not warrant legal enforcement action. In lieu of such action, we are issuing thif,.----~ 

letter which 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 COMPLIANCE AND ENFORCE~E r tv E 0 

CHAPTER 1 INTRODUCTION TO INVESTIGATION AND COMPLIANCE RELATED 

TASKS l tJ 2012 

Section 8 Enforcement Decision Process 

14-140 GENERAL. This section establishes policy for the Flight Stan~~J;f/~~~~~ii~},.~fJCKET replacing the Enforcement Decision Tool (EDT) with the Enforcement Decision Process (EDP). 

EDP corrects deficiencies in the EDT policy and worksheet that were identified during a 

nationwide evaluation of how AFS enforcement personnel applied the EDT. This policy provides 

an eight-step electronic template/worksheet, the Electronic EDP (E-EDP) (Figure 14-11 ), for 

enforcement personnel to use to determine the appropriate action (legal, administrative, 

informal) to take for noncompliance with regulatory requirements. The change simplifies the 

EDP, reduces redundancies, and provides examples to facilitate completion of the E-EDP 

worksheet. This policy and worksheet conform to the FAA EDP guidelines in Federal Aviation 

Administration (FAA) Order 2150.3, Compliance and Enforcement Program Appendix F, 

current edition. This policy applies to all AFS personnel involved in compliance and 

enforcement tasks. 

14-141 TASK PREREQUISITES AND SIGNIFICANT INTERFACES. Aviation safety 

inspectors (ASI) must have knowledge of the requirements of Title 49 of the United States Code 

(49 U.S.C.); Title 14 of the Code of Federal Regulations (14 CFR); and AFS policies. 

A. Significant Interfaces. This process requires coordination and/or interface with the 

following: 

• Field office management team; 

• Flight Standards Division; 

• Office of Regional Counsel; 

• Enforcement Information System (EIS); 

• Civil Aviation Registry; 

• Accident Incident Data Subsystem (AIDS); 

• Safety Performance Analysis System (SPAS); and 

• Program Tracking and Reporting Subsystem (PTRS). 

B. References (current editions). This process requires access to: 

• Title 14 CFR parts I through 193, 

• FAA Order 2150.3, 

• FAA Order 8900.1, Flight Standards Information Management System (FSIMS), 

• PTRS Procedures Manual (PPM), 

• Title 49 U.S.C. Chapter 447, and Chapter 463. 

C. Forms. None. 

D. Job Aids. This process requires access to the E-EDP worksheet. 

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E. Additional Guidance. Authorization and additional guidance for this process is in 

FAA Order 2150.3. 

F. PTRS Activity Code. This process requires the use of the following PTRS activity 

codes as appropriate: 

1) Task Activity Codes-1734/3734/5734 (INVESTG/ENFRCMNT/lNFORMAL 

ACTION). 

2) Task Activity Codes-1733/3732/5732 (INVESTG/ENFRCMNT/ADMIN 

ACTION). 

3) Task Activity Codes-1732/373115731 (INVESTG/ENFRCMNT/LEGAL 

ACTION). 

4) On-the-job training (OJT) Instructor Activity Code--! 024/3024/5024 

5) OJT Trainee Activity Code---1023/3023/5023. 

14-142 DEFINITIONS. 

A. Act. An overt action and includes the failure to take an action. 

B. Adequate Deterrent. The AFS action is reasonably likely to discourage the alleged 

violator and others similarly situated from committing the same or very similar conduct for the 

foreseeable future. 

C. Administrative Action. A letter of correction or a warning notice. 

D. Constructive Attitude. The alleged violator acts in a positive manner toward 

regulatory requirements, cooperates with AFS investigative personnel to achieve compliance, 

and willingly takes actions necessary to come into and maintain compliance. 

E. Inadvertent. An act that is the result of both inattention and lack of purposeful 

choice. A violation is inadvertent when it does not result from an alleged violator's conscious 

decision to take, or not take any action that could have prevented the apparent violation. 

F. Informal Action. Oral or written counseling of individuals or entities for regulatory 

noncompliance, documented in PTRS. 

G. Hazard. A condition that could lead to injury or property damage. 

H. Lack of Qualification. A certificate holder lacks the skills and competency, or care, 

judgment, and responsibility necessary to hold that certificate. Where a certificate holder 

commits a violation indicating a lack of qualifications to hold the certificate, the FAA takes legal 

action to revoke the violator's certificate. 

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1114110 8900.1 CHG 83 

I. Likelihood. The probability (frequent, occasional, or remote) of the worst type of 

injury or damage realistically (and potentially) occurring, considering the actual facts specific to 

each case. 

J. Legal Action. Enforcement action other than administrative action or informal action. 

K. On-the-Spot. Corrective action for a low-risk violation is completed on-the-spot 

when a violation(s) is identified by the FAA and communicated to an individual or company. 

L. Remedial Training. A program authorized in Order 2150.3, Chapter 5 that AFS 

inspectors use for certificated airmen when remedial training is the appropriate action to take for 

a violation. 

M. Safety Risk. The level (high, moderate, or low) of potential injury or property 

damage from a hazard created by an act, considering the hazard severity and the likelihood that 

the potential severity will be realized. 

N. Severity. The worst type of injury or damage (catastrophic, critica~ marginal, or 

negligible) that could realistically (and potentially) occur from a generic violation of the type 

involved in the subject violation. A generic violation refers to the basic act or failure to act, 

absent any specific facts or circumstances. 

0. Substantial Disregard for Safety or Security. 

1) In the case of a certificate holder, that the act was a substantial deviation from the 

degree of care, judgment, and responsibility normally expected of a person holding that 

certificate with that type, quality, and level of experience, knowledge, and proficiency. 

2) In the case of a violator who is not a certificate holder, substantial disregard 

means the act was a substantial deviation from the degree of care and diligence expected of a 

reasonable person in those circumstances. 

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Figure 14-10, Process Flowchart-AFS Enforcement Decision Process 

No 

c:=J 

I 

Re=-al Training or-~ '------~/ 

14-143 PROCEDURES. 

No 

/ 

/Have ALL administrative 

~on criteria been met? 

~/ Yes 

., ~/~ 

~rform Risk Assessme~ 

~~/ y 

--,t·--

Moderate 

I 

Admlnlstcative~) 

······ ...... 4 Handle under 

Yes - applicable: enforcement 

gu1dance 

Low 

Admlnlstmtlve oc lnfocma) 

"-----·---

A. Application of the E-EDP Worksheet. AFS investigative personnel use the E-EDP 

after they have gathered sufficient evidence and other relevant information to analyze the facts 

and circumstances of the apparent violation under the administrative action criteria and, if 

necessary, categorize its safety risk. 

1) To apply the EDP, AFS enforcement personnel use the AFS E-EDP worksheet to 

analyze the facts and circumstances (appropriate to each step) disclosed by an investigation or 

identified during an inspection. 

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2) AFS enforcement personnel document their completion of the E-EDP in PTRS 

using the code appropriate for the enforcement action taken. 

3) Inspectors must complete the AFS E-EDP worksheet for all violations, except: 

a) Enforcement personnel take administrative action or informal action for 

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 correction for these kinds oflow-risk cases. When a certificate holder corrects 

low-risk violations on the spot, it is acceptable to use administrative action or informal action 

(oral or written counseling) after the correction to close these violations. 

NOTE: Completion and retention of an E-EDP worksheet is not required for 

low-risk violations corrected on the spot; however, if inspectors accept an 

on-the-spot correction they must perform an E-EDP risk analysis before closing 

the case to confirm that the violation was low risk. (Refer to steps three, four, and 

five of the E-EDP worksheet.) 

b) Cases that are accepted and closed under the Aviation Safety Action Program 

(ASAP) with administrative action or informal action. 

NOTE: Although completion of the E-EDP worksheet is not required for 

violations accepted under ASAP, before informal action can be used to close an 

ASAP case, an affirmative response is required to E-EDP worksheet step two, 

criterion number three-the apparent violation does not indicate a lack of 

qualification. In addition, the violation must be low risk, determined by applying 

E-EDP worksheet steps three, four, and five. 

B. Determine Whether the Case is Categorically Excluded From the E-EDP. AFS 

investigative personuel determine if the apparent violation involves any of the matters described 

in subparagraphs I) through 7) below. If the violation involves any of these matters, the case is 

categorically excluded from the EDP. 

NOTE: If the excluded case warrants legal enforcement action, enforcement 

personuel complete steps one and eight of an E-EDP worksheet for inclusion in 

section B of the Enforcement Investigation Report (EIR) indicating that the 

subject case was categorically excluded. 

I) Apparent violations that are disclosed under and meet the criteria of the Voluntary 

Disclosure Reporting Program (VDRP) are handled per VDRP guidance. 

2) A case involving a substantiated lack of qualification, or questionable 

qualification. For example: 

a) Positive drug and alcohol test results. 

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b) Failing to successfully complete a reexamination. 

c) Failing to possess the skills and competency required for the certificate held. 

d) Refusing to permit and/or submit to an inspection, reexamination, or a drug or 

alcohol test. 

e) Intentionally falsifying a record or application. 

f) Cheating on a written examination. 

3) Criminal activity, such as narcotics convictions. 

4) Special-emphasis enforcement programs, such as temporary flight restriction 

violations. 

5) Operating without having been issued a required certificate, rating, or other 

required and valid authorization, such as a 14 CFR part 61, § 61.58 pilot in command proficiency 

check. 

6) Apparent violation(s) by a military pilot that are referred to the Department of 

Defense. 

7) Apparent violation(s) by a foreign pilot that are referred to the Department of 

State. 

C. Determine if All Criteria for Taking Administrative or Informal Action Have 

Been Met. If a case is not categorically excluded from the E-EDP, then AFS investigative 

personnel determine whether the apparent violation meets the criteria for taking administrative 

action or informal action. Before taking either administrative action or informal action for an 

apparent violation, AFS investigative personnel must determine if all of the criteria have been 

met. 

NOTE: Criteria for informal action and administrative action are the same. 

1) If AFS investigative personnel determine that an apparent violation does not meet 

all criteria, then they must recommend the appropriate legal enforcement action for the 

violation(s), unless division management approves a deviation in accordance with 

subparagraph 14-143F. 

2) AFS investigative personnel indicate on the AFS E-EDP worksheet whether all 

criteria for taking administrative action or informal action have been met. 

3) lf any of the criteria have not been met, AFS investigative personnel indicate 

which criteria were not met and explain why on the E-EDP worksheet. 

4) Below is an abbreviated list of the criteria for taking administrative action or 

informal action; a complete discussion of these criteria is Order 2150.3, Chapter 5. 

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a) Legal enforcement action is not required by law. For example, 49 U.S.C., 

section 44 710 mandates that the FAA revoke the certificate of any airman who is convicted of a 

drug-related offense where the underlying offense involves the use of an aircraft. For these cases, 

the FAA may not take administrative action, or even pursue legal enforcement action to suspend 

the airman's certificate, but instead must pursue legal enforcement action to revoke the violator's 

airman certificate. 

b) Administrative action would deter future violations. 

c) The apparent violation does not indicate a lack of qualification. 

d) The apparent violation must have been inadvertent. A violation is inadvertent 

when it does not result from an alleged violator's conscious decision to take or not take any 

action that could have prevented the violation. For instance: 

I. (Airworthiness): A mechanic improperly performs maintenance because 

he or she misreads an instruction in the maintenance manual has acted inadvertently. 

2. An air carrier who operates an aircraft with an improperly deferred 

component because of genuine miscommunication with maintenance control has acted 

inadvertently (e.g., the maintenance controller misheard the discrepancy reported). 

3. (Operations): A pilot misses a checklist item because of an air traffic 

control communication. 

4. Unruly or intoxicated passengers, or passengers who smoke aboard an 

aircraft, act purposefully, and therefore, have not acted inadvertently. 

e) The apparent violation does not involve a substantial disregard for safety or 

security. Substantial disregard for safety or security means in the case of a certificate holder, that 

the act was a substantial deviation from the degree of care, judgment, and responsibility normally 

expected of a person holding that certificate with that type, quality, and level of experience, 

knowledge, and proficiency. In the case of a violator who is not a certificate holder, substantial 

disregard means the act was a substantial deviation from the degree of care and diligence 

expected of a reasonable person in those circumstances. For instance: 

I. (Airworthiness): Failing to consult the maintenance manual and then 

conducting an incomplete or improper inspection of a critical required inspection item. 

2. (Operations): A Commercial-rated pilot taking off at a busy controlled 

airport without having received takeoff clearance. 

3. (Airworthiness, no certificate held): A maintenance controller instructs a 

line mechanic to defer a discrepancy using a specific minimum equipment list item number with 

knowledge that the system or component deferred is not inoperative. 

4. (Operations, no certificate held): An uncertificated flight school operates 

its aircraft without conducting an annual inspection for 3 years. 

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f) The circumstances of the apparent violation were not aggravated. Aggravated 

circumstances are those that make or could make the violation worse, more serious or the 

potential outcome more severe. For instance: 

1. In a case involving an intentional violation with passengers on board, both 

the intentional misconduct, and the fact that passengers were onboard are aggravating 

circumstances. 

2. (Airworthiness): For a mechanic who performs an annual inspection 

improperly, the circumstances are more aggravated if the FAA later identifies 30 separate 

discrepancies, than when the FAA finds only 2. 

3. (Operations): For a pilot who operates an aircraft that is not in an 

airworthy condition, the circumstances are more aggravated where the unairworthy condition 

presents a safety-of-flight issue, than where the condition is a technical nonconformity to the 

aircraft's type design. 

g) The alleged violator has a constructive attitude toward compliance. 

Constructive attitude means that the alleged violator acts in a positive manner toward regulatory 

requirements, cooperates willingly with FAA personnel to achieve compliance, and willingly 

takes actions necessary to come into and maintain compliance. 

h) The apparent violation does not indicate a trend of noncompliance. 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). Tfthe violations resulted from the same 

repeated misconduct by an individual, or by the same department, section or group of a 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. 

D. Analyzing Risk. AFS investigative personnel analyze the risk of an apparent 

violation only if all criteria for administrative action or informal action have been met. 

1) To determine the level of risk, AFS investigative personnel first categorize the 

potential severity and aetna! likelihood of the hazard, that is, the dangerous condition, created by 

the apparent violation(s). 

2) The use of the term severity in assessing risk always means the worst type of 

injury or damage that could realistically (and potentially) occur from any hazardous condition. It 

is not based on the actual outcome of any act or violation but, as previously stated, must reflect 

the worst type of outcome that could realistically (and potentially) occur. For this reason, AFS 

investigative personnel consider only the potential outcome, not the actual outcome resulting 

from the act(s) or failure to act relevant to the subject violation when categorizing severity. 

3) Determining Severity. Based on the explanation stated above severity is the worst 

type of injury or damage that could realistically (and potentially) occur from a generic violation. 

A generic violation refers to the basic act or failure to act without considering any specific facts 

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or circumstances. For example, an altitude deviation, a runway excursion, improperly performed 

maintenance, flight and duty recordkeeping, etc. The following guidelines apply to the 

determination of severity: 

a) To determine severity, AFS enforcement personnel do not consider the 

specific facts of the case; the specific facts of the case are considered only when determining 

likelihood. 

b) Severity and likelihood are determined separately, and severity must be 

determined without considering the likelihood of that severity (or outcome) being realized. For 

example, if a plausible argument can be made that a hazard could under some circumstances 

result in death or severe damage, the potential severity is catastrophic, in spite of the fact that 

such an outcome from the hazard might be extremely rare, or would not (realistically) occur. 

c) The most common error in determining severity is prematurely considering 

the facts and circumstances of a case. 

d) Severity can be one of the following: 

o Catastrophic (death or severe damage); 

o Critical (severe injury or substantial damage); 

• Marginal (moderate injury or damage); and 

• Negligible (minor or no injury or damage). 

e) When determining the potential severity of an apparent violation, the 

existence of fortuitous circumstances is not considered. The following is an example of 

fortuitous (by chance) circumstances and the determination of severity: An altitude deviation 

from an ATC clearance has the same potential outcome (catastrophic, due to a mid-air collision) 

regardless of whether there was another aircraft that came into conflict or not. For any altitude 

deviation violation, AFS enforcement personnel must consider what is the worst type of injury or 

damage that could realistically happen if an aircraft deviates from its assigned altitude without 

considering the weather, obstructions, other traffic in the area, the time of day, or other similar 

circumstances. The absence of another aircraft coming into conflict is a fortuitous circumstance. 

f) Other examples relevant to the categorization of severity: 

1. A fuel exhaustion occurrence has the same potential outcome 

(catastrophic) irrespective of whether an actual accident resulted. 

2. A pilot who operates after his or her medical certificate expires has the 

same potential outcome (catastrophic), irrespective of whether he or she has an actual medical 

condition. · 

3. Failing to maintain accurate and current flight- and duty-time records has 

the same potential outcome (catastrophic) irrespective of whether the pilot were actually fatigued 

at the time of their operation. 

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4. The operation of an aircraft past the time limit for conducting a required 

inspection has the same potential outcome (catastrophic) irrespective of whether an actual 

airworthiness condition was not corrected on the aircraft as a result of the missed inspection. 

5. Failing to carry a load manifest onboard the aircraft has the same potential 

outcome (negligible) irrespective of any other factors because the failure to do so does not create 

a safety-of-flight condition. 

6. Operating an aircraft with an antenna that was improperly repaired with 

speed tape has the same potential outcome (catastrophic) irrespective of whether the speed tape 

interfered with its operation or rendered the antenna inoperative. 

7. Failing to make an entry in the aircraft maintenance logbook after 

installation of a repaired component has the same potential outcome (negligible) irrespective of 

other factors. 

4) Determining Likelihood. Likelihood is the probability of the worst type of injury 

or damage realistically occurring, considering the specific facts ofthe case. In other words, AFS 

investigative personnel determine how likely it is that the potential severity would actually be 

realized, given the facts and circumstances involved. 

a) Likelihood can be one of the following: 

1. Frequent (likely to occur often). 

2. Occasional (likely to occur sometimes). 

3. Remote (unlikely to occur, would seldom occur, or so unlikely, one can 

assume the potential severity (outcome) would not occur). 

b) Examples of how the facts of a case affect likelihood: 

1. For a restricted airspace incursion, the likelihood becomes higher the 

longer the pilot operated in the restricted airspace, the farther into the airspace the pilot 

penetrated, and the greater the number of other aircraft in the area. 

2. For operating an aircraft past a required inspection, the actual likelihood 

becomes higher the more time that has passed since the inspection was due, and the more time 

between inspections (1 00-hour v. annual). Also, the actual likelihood will be higher where the 

aircraft has an actual safety-of-flight airworthiness condition that would have been corrected had 

the inspection been completed when required. 

3. For failing to maintain current flight and duty records, the actual 

likelihood will be higher for an active pilot who has no flight time records, or flies many hours 

past the flight time limitations, than for a pilot who flies a small amount of time past the flight 

time limits, or does not exceed the flight time limits. 

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4. For operating an aircraft with an inoperative cargo restraint component, 

the likelihood will be less likely where the cargo weight does not exceed the maximum weight 

for operating with one restraint inoperative, and will be more likely where the weight is 

excessive, or multiple restraints are inoperative. 

5. For operating without complying with Airworthiness Directives, the 

likelihood will be higher when the aircraft is operated many hours beyond the compliance date 

than for an aircraft that is operated a small amount of time past the compliance date. 

6. For improperly performing maintenance, the likelihood will be more likely 

the more egregious the error and the greater the impact on safety-of-flight. 

7. For operating an aircraft with a very-high frequency antenna that had been 

improperly repaired with speed tape, the likelihood will be less likely if the aircraft had three 

separate communication systems, and the improperly repaired antenna was connected to only 

one of those systems. 

5) Determine the Safety Risk and the Appropriate Enforcement Action. The Risk 

Assessment and Action Matrix, in Figure 14-11, E-EDP Worksheet, helps determine the level of 

risk (high, moderate, or low) for an apparent violation and the necessary corresponding 

enforcement action the FAA should take after severity and likelihood have been determined. 

E. Remedial Training. AFS investigative personnel must address an apparent violation 

by an airman with remedial training provided all criteria for taking administrative 

action/informal action are met, the apparent violation presents a high safety risk, and all criteria 

for offering remedial training are met. Refer to Order 2150.3 Chapter 5 for a complete 

description of the remedial training process. The criteria for offering remedial training are as 

follows: 

1) Future compliance can be reasonably ensured through remedial training alone. 

2) The airman exhibits a constructive attitude that would lead the inspector to 

believe the airman has a willingness to comply, so noncompliance is less likely in the future. 

3) The conduct does not disclose a lack of, or reasonable basis to question, the 

airman's qualifications. 

4) The airman's record of enforcement actions does not indicate that remedial 

training would be inappropriate. 

5) The conduct is not deliberate, grossly negligent, or criminal in nature. 

NOTE: Tfthe airman has not responded to the remedial training Letter of 

Investigation within 10 days of receipt, initiate legal enforcement action. Flight 

Standards District Office management has latitude to extend the response period 

beyond l 0 days in extraordinary circumstances. 

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NOTE: Remedial training cannot be used for airmen using their certificate in air 

transportation (air carrier operations) at the time of the violation. 

F. Deviation From the Matrix (if applicable). Enforcement personnel may determine 

that a case warrants a deviation from the enforcement action indicated by the Risk Assessment 

and Action Matrix. If AFS investigative personnel select a type of action other than that 

indicated by the matrix, then they must provide a justification and have approval of the division 

manager or equivalent. Refer to Order 2150.3, Chapter 5 for more information on using 

administrative action when the required criteria are not met. The following are examples of 

where a deviation from the type of action indicated by the matrix might be justified: 

1) In certain cases, where a business commits an apparent violation that meets the 

criteria for administrative/informal action, but presents a high safety risk, administrative action in 

the form of a letter of correction may be more appropriate to improve the operator's system for 

system safety benefits, even though the matrix directs legal action. For these cases, the potential 

safety benefits of a structured corrective action process that incorporates a corrective action plan 

might be preferable to respond to the high safety risk. 

2) Administrative action may be more appropriate where the criteria for 

administrative/informal action are not met because an individual's apparent violation was not 

inadvertent, but there is negligible safety risk involved. For example, an apparent violation by a 

pilot who operates an aircraft without a pilot certificate in his or her possession, but is qualified 

and current to operate the aircraft, may be more appropriately addressed with a warning notice, 

as the violation does not endanger the aircraft or any occupants. 

3) The investigating office could also recommend that administrative action would 

not be appropriate and that the FAA should take legal enforcement action. 

G. Documentation. 

1) E-EDP Worksheet-Retention requirements. E-EDP Worksheets required by this 

policy are maintained in accordance with established retention periods for EIRs and other 

enforcement records. 

2) E-EDP Worksheet-Filing requirements for cases requiring an E-EDP worksheet. 

a) Legal Enforcement Actions. Section B of the EIR includes the completed and 

signed E-EDP worksheet. 

b) Administrative Action and Informal Action Cases. AFS field offices retain the 

E-EDP worksheet in the investigating office files for cases closed with administrative action and 

informal actions. 

I. For all administrative action cases requiring an E-EDP worksheet 

(including cases closed with the Streamlined No Action and Administrative Action Process 

(SNAAP)) the completed E-EDP worksheet, FAA Form 2150-5, Enforcement Investigation 

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Report and the administrative action letter (or the SNAAP job aid) is placed in an investigating 

office enforcement case file for each separate action. 

2. This requirement does not apply to accepted ASAP cases closed with 

administrative action or informal action, or to other cases closed on the spot with informal action 

or administrative action. 

3) Excluded Cases Warranting Legal Enforcement Action. AFS inspectors complete 

Step One and sign the E-EDP worksheet indicating that the apparent violation is categorically 

excluded from the E-EDP. The signed E-EDP worksheet is included in Section B of the excluded 

case EIR. 

4) Excluded Cases That are Closed With Administrative or Informal Action. AFS 

inspectors complete Step One of a signed E-EDP worksheet indicating that the violation is 

categorically excluded from the E-EDP. The signed worksheet is placed in the investigating 

office case file. Alternatively, an E-EDP worksheet indicating categorical exclusion is not 

required if an Enforcement Information System (EIS) code, or PTRS code or field, or a PTRS 

comment indicate that the case was of a type that is categorically excluded. For example, VDRP 

cases, 49 U.S.C. section 44709 cases, etc. 

H. Entry in Tracking Systems. 

1) Record all legal action cases and administrative action cases in EIS and PTRS. 

2) Informal action cases do not require the preparation of an EIR nor a case number 

from EIS, but must be documented in PTRS to support national, regional, and local systems 

safety analysis, and to identify trends. 

a) AFS investigative personnel must record the following information on 

informal actions in PTRS: 

• Name of the individual or business; 

• Certificate type and number of the individual or business (as applicable); 

• Regulations involved (include section, paragraph and subparagraph); 

• Date of counseling; 

• Type of counseling (oral or written); 

• For businesses, name and title of person counseled; and 

• Brief description of the apparent noncompliance. 

I. Review of Application of the Enforcement Decision Process. 

1) AFS Regional Offices (RO) and field office management are responsible for 

reviewing each E-EDP worksheet and determining that it is completed in accordance with this 

section. The preparer and each reviewer will print and sign each E-EDP worksheet. A signature 

will indicate that the signatory concurs in the appropriateness of the action recommended and 

believes the E-EDP worksheet is prepared in accordance with all applicable policies. 

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2) Copies of the complete administrative action case file (for all cases requiring 

completion of an E-EDP worksheet), including evidence sufficient to prove the violation, must 

be forwarded to the appropriate RO for review after issuance by the investigating office. 

NOTE: While this requirement does not require Items of Proof, sufficient 

documentation must be included with the file to show that the violation(s) 

occurred (e.g., a brief inspector statement, a copy of a photograph, copy of a 

logbook page). 

3) Legal Concurrence. Before initiating legal enforcement action, legal counsel 

determines whether the recommendation for legal enforcement action is appropriate under the 

E-EDP. Tf!egal counsel concurs with the AFS recommendation and analysis, legal counsel signs 

the E-EDP worksheet and initiates the case. lf legal counsel disagrees that legal enforcement 

action is appropriate, or disagrees with how the E-EDP was applied in a case, then legal counsel 

and the appropriate AFS RO will discuss and attempt to resolve those disagreements before the 

legal action is initiated. If legal counsel still disagrees with taking legal enforcement action after 

discussion with the AFS RO, then legal counsel explains the reasons for such disagreement on 

the E-EDP worksheet, signs it, and returns the ETR to the AFS RO after review by the regional 

counsel or designate. If legal counsel disagrees with the AFS analysis under the E-EDP, but 

agrees with the recommended action, legal counsel does not return the EIR to the RO. Rather, 

legal counsel explains the reasons for the disagreement on the E-EDP worksheet, signs it, and 

initiates the case. 

14-144 TASK OUTCOMES. Completion of the E-EDP worksheet results in one of the 

following: 

• Exclusion of an apparent violation from the EDP; 

• Legal enforcement action; 

• Administrative action; 

• Informal action; 

• Remedial training; or 

• Deviation from the enforcement action indicated by the E-EDP process. 

14-145 FUTURE ACTIVITIES. Conduct a followup inspection to ensure completion of 

corrective action( s) when a Letter of Correction has been or will be issued. 

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Figure 14-11, E-EDP Worksheet 

AFS ENFORCEMENT DECISION PROCESS (E-EDP) WORKSHEET 

Case Name: _________ _ 

ETR Number for Legal and Administrative Actions: ____________ _ 

PTRS Report Number for Informal Actions: __________ _ 

Note: Refer to FAA Order 8900.1, Volume 14, Chapter 1, Section 8, Enforcement 

Decision Process for defmitions, policy explanations, and examples for each step. 

STEP ONE-Determine if this case is categorically excluded. 

Review the list below to determine if this case should be categorically excluded from the 

Enforcement Decision Process (EDP). If the case is excluded, either place a checkmark in the 

box adjacent to the type of case from the following list, or explain why this case has been 

excluded. (See below.) 

Types of cases that are categorically excluded from the EDP: 

D 1. Voluntary Disclosure Reporting Program (VDRP). Violations that are 

voluntarily disclosed under VDRP and that meet all acceptance criteria for the program. 

D 2. Lack of Qualifications. Lack of qualification means a certificate holder lacks the 

skills and competency, or care, judgment, and responsibility necessary to hold that 

certificate. For examples, see the list below: 

• Drug and alcohol positives; 

• Failing to successfully complete a reexamination; 

• Failing to possess the skills and competency required for the certificate held; 

• Refusing to permit and/or submit to an inspection, reexamination, or drug or 

alcohol test; 

• Intentionally falsifying a record or application; or 

• Cheating on a written examination. 

Note: Legal enforcement action is required for these cases. 

D 3. Criminal Activity. For example, cases involving controlled substances. 

Note: Legal enforcement action is required for these cases. 

D 4. Special Emphasis Enforcement Programs. For example, currently cases 

involving Temporary Flight Restriction (TFR) violations. 

D 5. Operating without having been issued a required certificate, rating or other 

required authorization. 

Note: Legal enforcement action is required for these cases. 

D 6. Violations involving military pilots that are referred to the Department of 

Defense (DOD). 

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D 7. Violations involving foreign rated airmen that are referred to the State 

Department. 

Is this case categorically excluded? Place a checkmark in the box adjacent to your yes or no 

selection. 

D Yes-the case is excluded. Explain in the space provided below if you have not 

placed a checlanark in one of the boxes above. 

Comments: 

If the case is excluded, G the EDP after completing Step One and print and sign the 

worksheet. Then proceed in accordance with applicable enforcement guidance. 

D No-the case is not excluded. Proceed to Step Two. 

STEP TWO-Administrative Action and Informal Action Criteria. 

Review the following criteria. For each of the criteria that have been met place a 

checkmark in the appropriate box. 

D 1. Legal enforcement action is not required by law. For example, 

U.S.C. Section 44710 and drug-related offenses. 

D 2. Administrative action would adequately deter future violations. Adequately 

deter means that the FAA action is reasonably likely to discourage the alleged violator 

and others similarly situated from committing the same or very similar conduct for the 

foreseeable future. 

D 3. The apparent violation does not indicate a lack of qualification. Lack of 

qualification means a certificate holder lacks the skills and competency, or care, 

judgment, and responsibility necessary to hold that certificate. 

D 4. The apparent violation was inadvertent, (i.e., not the result of purposeful 

conduct). A violation is inadvertent when it does not result from an alleged violator's 

conscious decision to take or not take any action that could have prevented the violation. 

D 5. The apparent violation does not involve a substantial disregard for safety or 

security. Substantial disregard for safety or security means, in the case of a certificate 

holder, that the act was a substantial deviation from the degree of care, judgment, and 

responsibility normally expected of a person holding that certificate with that type, 

quality, and level of experience, knowledge, and proficiency. 

D 6. The circumstances of the apparent violation were not aggravated. Aggravated 

circumstances are those that make, or could make, the violation worse, more serious, or 

the potential outcome more severe. 

D 7. The alleged violator has a constructive attitude toward compliance. 

Constructive attitude means that the alleged violator acts in a positive marmer toward 

regulatory requirements, cooperates willingly with FAA investigative personnel to 

achieve compliance, and willingly takes actions necessary to come into and maintain 

compliance. 

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0 8. The apparent violation does not indicate a trend of noncompliance. A trend of 

noncompliance is indicated by a prior violation history which can include legal 

enforcement action(s), administrative action(s) and/or informal action(s). 

Have all criteria for taking Administrative Action been met? Please place a checkmark in the box 

adjacent to your yes or no selection. 

0 No, all of the criteria have not been met. In the space provided below, please explain 

why the criteria have not been met. 

Explanation: 

Please 0 the EDP, and after completing Step Two, print and sign the worksheet and proceed 

with legal enforcement action. 

0 Yes, all criteria have been met. Proceed to Step Three. 

STEP THREE-Determine Severity. For severity, select the worst type of injury/damage that 

could realistically (and potentially) occur from a generic violation of this type. 

Note: Do not consider the facts and circumstances specific to this case when 

determining severity. 

Note: A generic violation refers to the basic act or failure to act absent any 

specific facts or circumstances. For example, a generic violation could include the 

following: failure to comply with an ATC clearance, failure to perform 

maintenance in accordance with the manufacturer's maintenance manual, low 

flight over terrain, etc. 

0 Catastrophic (death or severe damage) 

D Critical (severe injury or substantial damage) 

0 Marginal (moderate injury or damage) 

0 Negligible (minor or no injury or damage) 

Why did you select this severity level? 

Explanation: 

Proceed to Step Four. 

STEP FOUR-Determine Likelihood. Select the probability of the worst type of 

injury/damage that could realistically occur, considering the facts specific to this case. 

D Frequent (likely to occur often) 

0 Occasional (likely to occur sometimes) 

D Remote (unlikely to occur, or would seldom occur, or would not occur) 

Why did you select this likelihood? 

Explanation: 

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Proceed to Step Five. 

STEP FIVE-Use the Risk Assessment and Action Matrix. Using your selections for severity 

and likelihood in Steps Three and Four above, determine the level of risk and the type of 

enforcement action to take using the matrix and place your selections in 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 or Legal Training or Legal 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~,=sk=-L=o~w~~-~ 

:il Occasional Action(s): Remedial Action: Action: Action(s): 

i=l Training or Legal 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 

or Informal Informal 

Level of risk selected: Type of action selected: __ _ 

Proceed to Step Six. 

STEP SIX-Use of Remedial Training. If Remedial Training (RT) is indicated by the matrix, 

Flight Standards Inspectors must offer an airman RT, provided all criteria for taking 

administrative action and RT are met, and the apparent violation causes a high safety risk. IfRT 

is refused, or not completed satisfactorily, proceed with legal enforcement action. 

Note: All of the RT criteria must be met before the FAA can offer RT to an 

airman. If all criteria are not met then legal enforcement must be taken. 

Note: RT cannot be used for airmen using their FAA certificate(s) in air 

transportation (air carrier operations) when the violation occurred. 

D 1. If the airman was using his FAA certification in air carrier operations when the violation 

occurred, place a checkrnark in this box and proceed with legal enforcement action. Proceed to 

Step Seven. 

0 2. If the airman was not using his FAA certification in air carrier operations at the time the 

violation occurred place a checkrnark in this box and determine whether RT criteria have been 

met. 

Review each of the following criteria. If met, place a checkmark in the appropriate box adjacent 

to the criteria. 

D 1. Future compliance can reasonably be ensured through RT alone. 

D 2. The airman exhibits a constructive attitude that would lead the inspector to 

believe that the airman has a willingness to comply, so noncompliance is less likely 

in the future. 

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D 3. The conduct does not disclose a lack of, or a reasonable basis to question, the 

airman's qualifications. 

D 4. The airman's record of enforcement actions does not indicate that RT would 

be inappropriate 

D 5. The conduct is not deliberate, grossly negligent, or criminal in nature. 

Have all criteria for using RT been met? 

DYes 

DNa 

D Not Applicable 

lfno. explain below why the criteria have not been met, print and sign the E-EDP 

worksheet and then proceed with legal enforcement action. 

Explanation: 

Proceed to Step Seven. 

STEP SEVEN-Deviation Procedures. 

Tn exceptional circumstances, the investigating office can recommend that an action be taken 

other than that indicated by the matrix. For example: 

1. The investigating office can provide a written explanation for why legal enforcement 

action would serve no useful purpose and that use of an administrative action is otherwise 

in the public interest. 

2. The investigating office could also recommend that administrative action would not be 

appropriate and that legal enforcement action should be taken. 

3. If a type of action is proposed other than that indicated by the Enforcement Decision 

Process, the division manager, or his/her designee's approval is required. 

EDP Process Outcome Requested: Yes D No D 

Tfyes, describe the action you propose, explain the facts and circumstances, and justify 

your proposal: 

Explanation: 

Division Manager/Designee Action: D Approved D Disapproved D Not Applicable 

Print Name: ------------------------

Signature: ______________ __ Date: ________ _ 

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Proceed to Step Eight and print and sign the E-EDP worksheet. 

STEP EIGHT-SIGNATURE PAGE 

Inspector: 

PRINTED NAME: __________ _ 

SIGNATURE: ___ ~-------- DATE: ___ _ 

1st Level Reviewer: 

PRINTED NAME: __________ _ 

SIGNATURE: ___________ _ DATE: ___ _ 

CMO/FSDO/IFO Manager: 

PRINTED NAME: __________ _ 

SIGNATURE: ___________ _ DATE: ___ _ 

Regional Office Reviewer: 

PRINTED NAME: __________ _ 

SIGNATURE: ___________ _ DATE: ___ _ 

Attorney (if forwarded for legal enforcement action): 

PRINTED NAME: __________ _ 

SIGNATURE: ___________ _ DATE: ___ _ 

If the attorney finds that the proposed type of enforcement action does not conform to the 

EDP process, explain why it does 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 NOT yet been evaluated for purposes ofKeyCite and may no longer be valid law. 

Department of Transportation (D.OT) 

Office of Hearings 

*I FEDERAL AVIATION ADMINISTRATION, COMPLAINANT, 

v. 

AMERICAN AIR NETWORK, INC, RESPONDENT. 

FAA Docket Nos. 

CP04WPOOI3, CP04WP0014. 

DMS Nos. 2004-17656, 2004-17657. 

(Civil Penalty Actions) 

Served July 27, 2005 

INITIAL DECISION OF ADMINISTRATIVE LAW JUDGE RICHARD C. GOODWIN 

In Docket CP04WPOOl3: 

Found: I) Respondent violated 14 C.F.R. §§39.7, 91.7, 135. 21( a) and l35.419(g) as charged; 

2) Respondent is hereby assessed a civil penalty of $49,000. 

In Docket CP04WPOOI4: 

Found: I) Respondent violated 14 C.F.R. §135.95(a) as charged; 

2) Respondent is hereby assessed a civil penalty of $7,000. 

Respondent American Air Network, Inc. ("AAN," "Respondent," or "the carrier") of Chesterfield, MO, holds an 

air carrier operating certificate under Part 135 of the 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 of convenience 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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2005 WL 1805921 (D.O.T.) 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 corporate jet 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 of the 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 

committed the FAR violations forming the basis for its amended complaint. 

The following is a summary of the agency's charges: 

I) Respondent overflew Airworthiness Directive ("AD") 93-02-!0 and thus operated in an unairworthy condition; 

2) Respondent performed an engine inspection without following applicable inspection procedures; 

3) Respondent performed an airframe inspection without following applicable inspection procedures; 

4) Respondent failed to keep its inspection program and maintenance manual current; 

5) Respondent operated the left hand airbrake jack beyond inspection limits; 

6) Respondent operated the left hand outboard maxaret beyond overhaul limits; 

7) Respondent operated the left hand aileron beyond inspection limits; 

8) Respondent operated the right hand aileron beyond inspection limits; 

9) Respondent operated the left hand flap vane beyond inspection limits; 

1 0) Respondent operated the right hand flap vane beyond inspection limits; 

11) the cabin STR NDT 53-10-106 structural inspection and x-ray was not performed within inspection lim- its; 

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2005 WL 1805921 (D.O.T.) Page 3 

12) the horizontal stabilizer structural inspection and x-ray was not overhauled within 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 and manual; 

16) the left hand horizontal stabilizer structural inspection was not overhauled within inspection limits; 

17) the right hand horizontal stabilizer structural inspection was not overhauled within inspection limits; and 

18) the right hand wing bottom skin/stringers structural inspection was not overhauled within inspection limits. 

Complainant contends that Respondent violated several different F ARs. 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 of the 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 had been operated in an unairworthy condition during that time, 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 of regulatory 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 of both 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 of paper [Ex h. 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 of repetitive AD notes, the note must have been terminated by 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 of a record is 

not probative. Termination simply must be reflected in a valid entry. AAN could not point to such a record (Tr. 

372). It thus failed to show that the AD had been 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 during the named period in an unairworthy condition, a violation 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 explicit words of the AAlP, "must be completed" (Exh. C-1 0). 

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 § 13 5.21 (a) respecting both Count 2 and Count 3. 

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 of the inspectors' examination of AAN 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 of date (Tr. I 06-09, 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 of manual 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 revised manual (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 of maintenance responsible "for keeping this AAIP current and revised, as the inspection program changes" (Exh. C12). The carrier1

s defense, moreover, fails. Assuming for the sake of argument that its representation of a 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. I conclude that Respondent violated§ 135.21 (a) in Count 4. 

4. Count 5 

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 I 0,304 hours. [FN7] As of February 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 had just 

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 if they 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, of course, would be valid log entries, and none are in evidence. I conclude that 

Respondent violated ~§ 135.21 (a) and 135.419(g).[FN8] 

5. Count 6 

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 of time, 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 of proving 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 alleged by Count 6. 

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 February 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 of time (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 of the 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 

I 0, 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 02-01-0 I 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 assured that performance had not been 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 of the 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 of both flap vanes was overdue by 311.5 

hours ( 11,051.5-l 0,740). 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" of the center fuselage section and inspection of the 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. l FN9] 

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 of proving Count I 1. 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 of the center fuselage section and inspection of the skin within prescribed limits. Respondent's evidence, moreover, was inconsistent, and allowed for a conclusion that performance was overdue. In 

these circumstances, I conclude that Respondent violated ~§I 35.2 I (a) and 135-4 I 9(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-2 I, 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 of the 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 it bad been due. [FN I I] 

*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 of proving 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 02-01-0 l 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) respecting Count 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 of the 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. 1 conclude 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 of N700XJ'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 

over two 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, or within 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 of the 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 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, 22 J -24, 232, 365). But AAN apparently failed to retain copies. 

Nor did it maintain a list of records 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 

"there were no specific procedures on copying or retaining what we sent them" (Tr. 210). 

Nor was the carrier successful in retrieving all the records, or copies of them, 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 of the 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 

pursuant to 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 l 5] 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 proof but often unclear. Entries were sometimes vague and confusing and, as such, unhelpfuL 

Further, the carrier's explanation that it was unaware of the need to retain either the original or a true copy of required records suggests, at best, an intolerably sloppy and unprofessional environment, and at worst an atmosphere of willful ignorance of its obligations. Neither scenario can be condoned. The character of the transgressions suggests a systemic failure to abide by the carrier's regulatory responsibilities. 

*13 Recordkeeping violations are not trifling matters. Regularized record retention enables FAA oversight. 

Evaluation of carrier records is a critical component of the 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-l 0 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 of the 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 F ARs. 

l hereby assess a civil penalty of $49,000 against American Air Network, Inc. in Docket CP04 WPOO 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 

pilot certificate." 

The agency charges that Respondent violated §l35.95(a) of the 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 current airman certificate."The agency seeks a civil penalty under 49 U.S.C. §4630 l (a)(2) of$11 ,000 (Tr. 6-7). 

*14 Respondent acknowledged the truth of the allegation (see Tr. l 0, 45; Reply to Complainant's Post-Hearing 

Brief ("Reply"), p. 2). However, it argues against liability or, in the alternative, in mitigation of the 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, if not eliminated altogether. 

AAN general manager and director of maintenance Stephen Gilliland, who runs the day-to-day operations of the 

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 of a bit more than $287,000 in 

2002, argues that the agency's proposed $11,000 civil penalty, as about four percent of net profits, simply is too 

steep to 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 of passengers and crew. The situation is of particular concern because the degree of 

danger posed is unknown (Tr. 27). As a Part 135 operator, AAN is held to the highest standard of care (Tr. 50). 

The fme must appropriately reflect the gravity of the 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 of suggested penalty. 

Under all the circumstances I find that a civil penalty of $7,000 is appropriate. It is commensurate with the gravity of the 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) of the 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 reflect the stipulation, which does not affect the substance of the 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 of the charge begins on the following March 6 because an allegation 

occurring more than two years prior to the issuance of a notice of proposed civil penalty ("NPCP") to a respondent is subject to 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 if maintenance 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. Complainant relied on such entries in several charges. See Tr. 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 I I. 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 Lex is 1212; Watts Agricultural Aviation tilh/a Growers' Air Service. FAA Order No. 9! -8 (July 5. l991 ), pp. 15-16, 1991 FAA Lex is 

330,review den. 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, 

of the agency's concerus. Tr. 87-88, 212, 245, 306-07, 309, 366-67; see LD., p. 2. 

FN 17. 1 granted Complainant's motion without objection to admit in --0014 Exhibits C-1 0 (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 of the Rules 

of Practice, which requires 1) that a notice of appeal be filed no later than 10 days (plus 5 for mailing) from the 

date of this order and 2) that the appeal be perfected with a written brief or 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 presiding judge 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, 

AA N 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 itself does 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 Order No. 92-77 (December 22, 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 of appeal be filed no later than 10 days (plus 5 for mailing) trom the 

date of this order and 2) that the appeal be perfected with a written brief or memorandum not later than 50 days 

(plus 5 for mailing) trom 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 presiding judge is optionaL 

2005 WL 1805921 (D.O.T.) 

END OF DOCUMENT 

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West law 

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

2008 WL 4948487 (D.O.T.) 

This document has NOT yet been evaluated for purposes of KeyCite and may no longer be valid law. 

Department of Transportation (D.O.T.) 

Office of Hearings 

*I IN THE MATTER OF: AMERICAN AIR NETWORK, INC. 

FAA Order No. 2008-10. 

Docket No. CP04WP0013. 

FDMS No. FAA-2004-17656 

Served: October 7, 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 

of the evidence that AAN had violated these regulations as alleged in Counts l through 18 of the 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 of a $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 least January I, 2002. (Complaint~ 2, Tr. 7.) Complainant alleged further that: 

• 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 of Sections 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; 

• Count 4: 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 I 0] 

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 of those aircraft in a timely manner. (Tr. 3l5, 358.) 

*2 Jeffrey Borer, President of Xtrajet 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 of N700XJ'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 of quality assurance, 

testified that he was involved in this process when N700XJ was added to AAN's certificate. He testified that he was satisfied at the time that there was adequate documentation to prove that N700XJ's inspections were current. (Tr. 244.) 

N700XJ's last flight while on AAN's operations specifications was on January I, 2002. It was taken off AAN'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 ]1y N700XJ while on AAN's Operations Specifications 

Dates Hours Landings 

November 5, 2000 I 0,222.6 hours 8,232 landingsiFN14J 

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I March 6l 200llFN15l I 0,468.8 hours 8,40 I 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 complaint rule. 

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 must be performed, and when that maintenance is due to be repeated. [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 recordkeeping requirements. (Tr. !24; see Tr. 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, or by mail or fax from the mechanic or repair 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 of N700XJ'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 of records at the time of the 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 of the 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 of AAN's AAIP with the copies of the 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 of the 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. The Aircraft Modification Logbooks from date of manufacture 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-l H 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 service tags 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 

under the AAIP, had been 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 Exhibit C-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 at that time. (Exhibit C-8.) 

The responses in the April 2, 2002, letter resolved some but not all of the issues raised by the inspectors in the discrepancy list. This action followed. 

Count 1: Airworthiness Directive 93-02-10. 

AD 93-02-l 0 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 of the wiring in accordance with the service bulletin terminates 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 August 25, 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 if the AD had been terminated by modification, the entry would have indicated that the rewiring called for in 

the service bulletin had been completed. (Tr. 51.) 

*6 He testified further that if tbe 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 January 24, 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 not been re-routed so as to terminate 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 of repetitive 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 after these inspections. (Tr. 104-I 05.) 

Count 4: Revision 4 of the 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. I 05-106.) 

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-date revision, AAN responded that it would change 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 of the 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 if the 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 of the 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. 

Chart 2: Summary of Inspector McDonald's Conclusions Regarding Counts~= 18. 

Count When last performed When next due ac- Time when N700XJ Overflown by 

according to CAMP cording to CAMP re- was last operated 

report port 

#5: Overhaul of left 7,304 hrs (on 8/9/94) l 0.304 hrs 11,05!.5 hrs 747.5 hrs 

hand airbrake jack 

every 3,000 hrs 

#6: Overhaul of left 5,602 landings (on 8,602 landings 8, 784 landings 182 landings 

hand outboard max- I /6/93) 

a ret every 3,000 landings 

# 7 & 8: Structural 8.340 hrs (on l 0,740 hrs or by 1!.,05!.5 hrs 3 I l.5 hrs 

inspection & x-ray of 12/12/97) 12112/0l 

ailerons every 2,400 

hrs or 4 yrswhichever comes first 

#9 & 10: Structural 8,340 hrs (on 10,740hrs or by ll ,05!.5 hrs 311.5 hrs 

inspection & x-ray of 12/12/97) 12/12/01 

flaps & flap vanes 

every 2,400 h rs or 4 

yrs - whichever 

comes first comes 

first 

#ll: Cabin structural 81!3/93 8113/0l 1/l/02 Over 4 months 

inspection & x-ray 

every 8 yrs. 

# 12 & 13: Inspection 81!3/93 8/13/0 l l/l/02 Over 4 months 

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2008 WL 4948487 (D.O.T.) 

& x-ray every 8 yrs 

of horizontal and vertical stabilizers 

# 14: Inspection of 6, 77 5 hrs on 8/13/93 

left hand wing: structure evert 4,800 hrs 

or 8 yrs- whichever 

comes first 

# 15 & 18: Inspection I 0/19/99 

of left hand & right 

hand lower wing 

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 

I 0/19/01 lll/02 Over 2 months 

8/13/0 I 1/l/02 Over 4 months 

*8 For each of these 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 of the 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 off AAN's certificate on March 19, 2002. 

For example, as explained in Count 5, the left hand airbrake jack 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 off AAN'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 of the other .instances, AAN was not able to produce any record meeting regulatory 

requirements showing the required inspection had been accomplished. 

The evidence regarding Counts 5 through 18 is summarized in Chart 3. 

Chart 3: Summary of the Evidence Pertaining to Counts 2: ll_, 

Count# & In- When last perspection or Over- formed accordhaul Description ing to CAMP report dated 

9/22/00 

When due according to 

CAMP report 

dated 9/22/00 

When performed 

according to 

AAN letter dated 

4/2/02 

When performed 

according to 

AAN tracking 

data 2/26/02 

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Comments 

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2008 WL 4948487 (D.O.T) 

# 5: Overhaul of 7,304 hrs on I 0,304 hrs 12/23/00; "records 10,837.8 hrs on 

left hand air- 8/9/94 not accounted for 9/18/0 I 

brake jack every at this time" 

3,000 hrs 

# 6: Overhaul of 5,602 landings on 8,602 landmgs 3/30/00; ·'Records gear maxaret unit" 

left hand out- 116/93 not accounted for overhauled at 

board maxaret at this time" 6,021 landings on 

every 3,000 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 

between right & left. 

AAN trackmg data 

does not distinguish 

between right & left 

On time if performed 

at 6,021 landings, but 

if performed at 6,021 

landings on 3/30/00, 

then should have been 

in CAMP report & airframe logbook for 

1112/99-4/4/0 I. 

CAMP report indicates 

right inboard & outboard maxarets overhauled at 6,021 landings on 6/20/94, & 

other maintenance performed on right inboard maxaret on 

3/30/00. 

CAMP report shows 

6,021 landings on 

6/20/94 - not on 

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2008 WL 4948487 (D.O.T.) Page lO 

3/30/00, as indicated 

in AAN tracking data. 

# 7 & 8: Struc- 8,340 hrs 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 of ailer- at this time" code 57-00-15) spections performed 

ons every 2,400 97.8 hrs late 

hrs or 4 yrswhichever comes 

first 

Wm. Pobanz testified 

inspections might have 

been under code 

57-00-16, performed 

on 211/01 at 10,398.6 

hrs. If so, inspections 

were on time, but 

should have been in 

airframe logbook for 

1112/99-4/4/01. 

# 9 & 10: Struc- 8,340 hrs on 10,740 hrs or 211 10 I ; "records Perfonned on one AAN tracking data 

tural inspection 12112/97 12112/01 not accounted for flap at I 0,398.6 does not distinguish 

& x-rays of flaps at this time" hrs on 211/0 I, & between right & left 

& flap vanes on other flap at 

every 2,400 hrs 10,837.8 hrs on 

or 4 yrs 9/18/0 1. 

whichever comes 

first. 

Comparing CAMP & 

AAN data, work on 

time for one flap & 

97.8 hrs late on the 

other 

#II: Cabin 8/13/93 8113/0 I 3/30/00; "records Wm. Pobanz test!- If performed on 

structural in- not accounted for fied that he has no 3/30/00, then, comparspection & x-ray at this time" way of correlating ing CAMP and AAN 

every 8 yrs inspection in data, work performed 

Count 11 with on time. 

AAN data. 

But if work performed 

on 3/30/00, then 

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should have been in 

the airrrame logbook 

for 11/2/99 to 4/4/01 

& CAMP report. 

Might have been lfperfonned on 

performed on 9/18/0 I, then more 

3/30/00 or 9/18/0 I than I month late. 

# 12: Inspection 8/13/93 8/13/01 3130100 "records Wrn. Pobanz testi- Companng CAMP & 

& x-ray of hori- not accounted for fied that inspec- AAN data, work perzontal stabilizers at this time" tion "most likely" formed on time. 

every 8 yrs occurred on 

3/30/00 

But if work performed 

on 3/30/00, then 

should have been in 

the airrrame logbook 

for 11/2/99-4/4/0 I & 

CAMP report. 

# 13: Inspee- 8/13/93 8113/0 I 3/30/00 "records 3130100 Comparing CAMP & 

tion& x-ray of not accounted for AAN data, work pervertical stabilizer at this time" formed on time. 

cv cry 8 yrs. 

But if work performed 

on 3/3/00, then should 

have been in the airrrame logbook for 

11/2/99-4/4/01 & 

CAMP report. 

# 14: Inspection 6,775 hrs on 11,575 hrs or "Review of cur- 9,015.9 hrs on If performed on 

of left hand wing 8/13/93 8113/0 I rent data does not 4/30/99 4/30/99, then on time. 

structure every justifY this call 

4,800 h rs or 8 yrs out." 

-whichever 

comes first 

#IS Inspection of I 0/19/99 10/19/01 2/1/0 I; "records 21110 I for "wing AAN entry did not disthe left hand not accounted for bottom skin" tinguish between right 

lower wing at this time" & left. 

stringers every 2 

yrs. 

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2008 WL 4948487 (D.O.T.) 

#16&17:In- 8/13/93 8113/0 I 3/30/00: "records Wm. Pobanz testispection of left not accounted for ficd that there 

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 I 0/19/99 10/19/01 211/0 I "records not 211/0 I for "wing 

of right hand accounted for at bottom skin" 

wing bottom this time" 

skin/stringers 

every 2 yrs. 

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Page 12of24 

Page 12 

Comparing CAMP & 

AAN data, work perfanned on time. 

But if work performed 

on 2/1/01, then should 

have been in airframe 

logbook for 

11/2/99-4/4/0 l. 

Comparing CAMP and 

AAN data. if work 

performed on 3/30/00, 

then perfonned on 

time. 

If work performed on 

3/30/00, then should 

have been in airframe 

logbook for 

11/2/99-4/4/0 I and in 

CAMP report. 

AAN data does not 

distinguish between 

right & left parts. 

AAN entry did not distinguish between right 

& left. 

Comparing CAMP and 

AAN data, if work 

performed on 2/1/01, 

then performed on 

time. 

If work performed on 

2/1/01, then should 

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The Initial Decision 

Page 13 of24 

Page 13 

have been in airframe 

logbook for 

11/2/99-4/4/0 l. 

*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 of the 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 of recuning inspections proved that the AD had been tenninated by modification. The ALJ wrote, 

"[t]ermination must be reflected in a valid entry," but "AAN could not point to such a record."(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 of proving 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 of date."(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, l 0, and 11, the ALl held that A AN'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 of records sent (Tr. 211, 365). ln fact it had "no idea" what it sent (Tr. 2JJ).AAN may 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 or retaining what we sent them" (Tr. 2l0). 

Nor was the carrier successful in retrieving all the records, or copies of them when the agency undertook its records 

review .. 

(Initial Decision at 13-14) (emphasis added.) 

The ALJ rejected the various defenses that AAN presented to explain away the 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 acknowledged this 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 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. 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. 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 decidedthat the preponderance of the 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 of Jeff Borer under 

Part 91 which governs the non-commercial operation of such aircraft."(Appeal Brief at I 0-11.) [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 qf aircraft 

with or without the right of legal control of the aircraft.49 U.S. C. § 40 I 02(32) (2002) (currently § 40 I 02(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 . of air navigation including the piloting of aircraft, 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 of N700XJ during this period, then AAN was the person operating the aircraft for purposes of a 

violation of Section 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 

to the 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 of a violation of Section 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 Order No. \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 of the 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 entry that he inspected the cables and found that they had been 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, but did not find 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 inspected The 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 

whether the 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 of the 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 not been 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 of the above, AAN's appeal of the 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 I 35. 2 I ( a) and 

13 5 .4l9(g) as alleged in Counts 5 through 18. 

AAN argues that the ALJ misplaced the burden of proof. 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 

prima facie case based upon the CAMP report, but that the ALJ held that AAN's tracking document did not rebut that 

prima facie 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 of the 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 of proving its case by 

the preponderance of the 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), petition for review dismissedEnviroso!ve, LLC v. FAA, Docket No. 06-1127, 2007 WL 

273 780 (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 of the 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 of the work performed, the date of completion of the work, and the signature and certificate number of the 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 of information."(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 rather than just a tracking 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 

accept the 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 proof of the dates that the overhauls and inspections 

were performed. 

Nonetheless, Complainant proved its case by the preponderance of the evidence. Complainant made a prima facie 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 prima facie 

case that required maintenance had not been performed. The burden of persuasion 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 

of the records to Borer prior to the 48-month inspection. But the FAA inspectors copied all of the boxes of records that 

RoigWest had. There is no reason to believe that Borer gave RoigWest less than a complete set of the records that AAN 

gave him. 

Also, there is no way to know whether AAN gave Borer any records that were pertinent to any of the inspections referred 

to in Counts 5 through I 8. 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 if Borer retained some of the 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 I 8. 

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 of the 

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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 of the 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. l FN41] (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 prima facie case. However, there was ample evidence to show that the entries in AAN's tracking records were not reliable. 

*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 

of the 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 of the ailerons referred to in Counts 7 and 8. 

The entry in AAN's tracking system for the overhaul of the gear maxaret unit illustrates the error-prone nature of tracking 

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 of the 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 -not the 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 of November 2; 1999, through April4, 200 I. 

AAN argued that a negative inference should be drawn against Complainant because it objected to AAN1s 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 of discovery. AAN could have, but failed to, file a motion to compel production of the 

records. At no time did the ALJ issue an order compelling production of those records. AAN failed to protect its own interests by filing a timely request for discovery or by seeking an order to 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 of the evidence that AAN violated Section 135. lli ill regarding Count :1: 

Qy failing to incorporate revision 4 of the Raytheon Aircraft Maintenance Schedule in its manual. 

Regarding Count 4, AAN argues as follows: 

• Neither party introduced " any .. probative evidence as to the industry standard for accomplishing amendments and 

obtaining FSDO ... approval'' 

• Neither party introduced a copy of revision 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 Brief at 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 if that 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 of unairworthiness, as a result of the out-of-date manual, is necessary under Section 135. 21 ( a). [FN42] 

*18 Finally, there was no need for Complainant to introduce a copy of revision 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 

proof of the issuance date of revision 4. Complainant introduced this evidence. 

IV. No reason has been presented to disturb the ALJfs finding that Complainant proved Qy the preponderance of the evidence that AAN violated Section 135.lli ill regarding 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 of violations 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, AAN1

s arguments do not war-

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rant reversing the AU's tinding that AAN violated Section 135. 21 (a) as alleged in Counts 2 and 3. 

V. The $49,000 civil penalty is appropriate in lli:.!l\ of the 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 Brief at 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 of Pacific Aviation International, FAA Order No. 1997-8 at 3 

(February 20, 1997), dismissed for 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 air carrier for 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 of AAN's size at the time of these 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 of the 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's reasoning. A $49,000 civil penalty is assessed. [FN50] 

Robert A. Sturgell 

Acting Administrator Federal Aviation Administration 

I. Materials filed in the FAA Hearing Docket (except for materialsfiled in security cases) are also available for viewing 

at the following Internet address: www.regulations.gov. For additional infonnation, see http:// dms.dot.gov. 

FN2. The Administrator's civil penalty decisions, along with indexes of the 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, see the Web site. 

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FN3. An air carrier operating under Part 135 may fly passengers and property for compensation or hire. (Tr. 26.) 

FN4. Section 39.7 of the Federal Aviation Regulations (FAR) provides as follows: 

What is the legal effect of failing 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 of this 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 39.7 was added to 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 of that 

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 

Administrator reverses 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 

later in this decision, the Administrator affirms the ALl's finding of the violation of Section 91.7. 

No further substantive discussion concerning the alleged violation of Section 39.7 in this decision is necessary. 

FN5. Section 91.7(a) of the FAR provides as follows: "No person may operate a civil aircraft unless it is in an airworthy 

condition." 

FN6. Section 135. 21 (a) of the FAR provides 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 

maintenance personnel in conducting its operations. 

FN7. Section 135.419(g) of the FAR provides as follows: "Each certificate holder who has an approved aircraft inspection program shall have each aircraft that 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 

subject to dismissal as stale. 

FN9. Seen. 4, supra. 

FN I 0. 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 74 7.5 

hours beyond the mandatory overhaul time for the left hand airbrake jack component. 

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 it was 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 off AAN'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, or to the airfTarne logbooks after April 4, 200 I. 

FN25. William Pobanz testified that the modification book is part of an 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 of the aircraft modification logbooks, fTom the date of manufacture to the time of the 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 of adding 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 of a 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 detailed count-by-count summary of the 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 certificate holder 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 of time (i.e., hours, landings), AAN should have, but failed to, ensure that required overhauls and inspections 

were performed in accordance with its AA IP. 

FN34. There is no evidence in the record to substantiate AAN's claim that N700XJ was only operated under Part 91 by 

Borer to conduct his personal business during the relevant time 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 I 0 (May 3, 1996), reconsideration denied, FAA 

Order No. 1996-23 (August 13, 1996), petition for 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 of an 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 were required after January 24, 1994. 

FN3 7. No photographs were introduced at the hearing. 

FN38. Inspector McDonald quite colorfully testified as follows about the CAMP status report: 

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 that time, 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 of Conger, 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 of High 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 

case by the preponderance of the 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 a higher 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, I 00 for each of the 30 days that the City failed to provide advance notice. 

FN45. FAA Order No. 2150.3A, Appendix 4, at page 4 (I)(C)(l ). 

FN46. FAA Order No. 2150.3A, Appendix 4, at page 4 (!)(B). 

FN47. FAA Order No. 2150.3A, Appendix 4, at page 6 (I)(L)(3). 

FN48. FAA Order No. 2150.3A, Appendix 4, at page 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 of this decision with the U.S. Court of Appeals for the District of Columbia Circuit of the 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.) 

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END OF DOCUMENT 

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DOCKET 

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This document has NOT yet been evaluated for purposes ofKeyCite and may no longer be valid law. 

Department of Transportation (D.O.T.) 

Office of Hearings 

*1 FEDERAL AVIATION ADMINISTRATION, COMPLAINANT, 

v. 

AIR SUNSHINE, INC., RESPONDENT. 

FAA Docket No. CP03S00040. 

DMS No. FAA-2003-16047. 

(Civil Penalty Action) 

Served December 20, 2004 

INITIAL DECISION OF ADMINISTRATIVE LAW JUDGE BURTON S. 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) Respondent is liable to and is hereby assessed a penalty of $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 and the overall circumstances surrounding the incident, the agency seeks a civil penalty 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 and most appropriate under the circumstaoces (Tr. 182-83). 

The burden is on the agency to prove its case by a preponderance of reliable, probative, and substantial evidence 

(14 C.F.R. §13.224). 

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ll. Discussion and Findings 

I fmd and conclude that the agency proved the 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 of belief. My findings show that Respondent comntitted the 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 Shaffer1

S 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 and Justice decided to 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 personnel who install a main wheel/tire assembly to 

Retract gear and insure that gear has sufficient clearance through up and down travel. Wheel must be able to 

turn in wheel well 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 

president and chief inspector, agreed that the procedure 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 of its 

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 

could be ultimately responsible for any transgression under the circmnstances. He said nothing (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 

dispatched to the Bahamas and was on its 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 of the 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 that juncture 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 off by Air Sunshine 

chief inspector Allen Adili (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 second round-trip flight to the Bahamas had returned (Tr. 58-60, 62, 92). In this conclusion I must agree. 

As inspector Diaz testified, if the 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 off on 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 

been performed. 

A second set of documents, 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 

been performed only after the second FLL-Bahamas flight of July 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 of July 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. It petulantly 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 

not been compromised (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 of Allen 

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 if it is natural under the circumstances to object. [FN6] 

Finally, to state that crews have been "retrained" additionally suggests an admission of incorrect procedures (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 warrant judgment 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 carrier violated the regulations it is charged with transgressing. 

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 of the gear retraction 

test? Merely to underscore that the requirement did not make 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 

performed the work. 

Allen Adili also differed with the inspectors' version of events. 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 of his 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 

could escape 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 of the 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 

Complainant has asked for a civil penalty of $20,000. I have decided to 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 of this 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 of the two flights operated after the incomplete repair. 

Respondent asserted, however, that safety was never in issue. It replaced the flat tire with a tire of the 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 carrier1

s 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 Respondent1

S mechanics, I 

find, exposed the travelers to unacceptable risk. 

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 per flight following the repair was appropriate, or a total 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 of the transgression were not marked by the kind of egregious 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 accomplish the 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 of this 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 Law Judge 

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 ultimately were not a factor in the 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 inspector Diaz. Exhibit A-1; see Tr. 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, corroborated that testimony. 

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FN3. Although witnesses sometimes referred to this document as an aircraft log, chief inspector 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 "in accordance 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 can be collected." 

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 it had been brought into 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 of pre-existing duties do not 

ordinarily justify 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 

would justify a civil penalty reduction (Trans World Airlines, Inc., FAA Order No. 1999-12 (August 23, 1999))-

but it offered no evidence of that 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 

of Practice, which requires I) that a notice of appeal be filed no later than 10 days (plus 5 for mailing) from the 

date of this order and 2) that the appeal be perfected with a written brief or 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 presiding judge is optional. 

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