• STUART A. GOLDSTEIN, P.A. 

Stuart A. Goldstein, Esq. 

7300 North Kendall Drive, Suite 380 

Miami, FL 33156 

Via Federal Express 

Docket Operations, M-30 

U. S. Department of Transportation 

West Building, Ground Floor 

1200 New Jersey Avenue, S. E. 

Room W12-140 

Washington, D. C. 20590 

Re: The Liberty Foundation 

Dear Sir /Madam: 

June 12, 2015 

Board Certified Aviation Law Attorney 

T: (305) 670-1222 

F: (305) 400-0685 

stuartgoldsteinpa@att.net 

Enclosed for docketing please find "The Liberty Foundation Inc.'s 

Supplement To Its Petition For Reconsideration Of The Denial Of Its Petition To 

Renew Its Exemption." Please advise if there are any questions. 

Very truly yours, 

' 

jhs 
To: U.S. Department of Transportation 

Docket Operations, M-30 

West Building, Ground Floor 

Room W12-140 

1200 New Jersey Avenue, S. E. 

Washington, D. C., 20590 

THE LIBERTY FOUNDATION INC.'S SUPPLEMENT 

TO ITS PETITION FOR RECONSIDERATION OF THE DENIAL 

OF ITS PETITION TO RENEW ITS EXEMPTION 

Petitioner: The Liberty Foundation 

cjo Stuart A Goldstein, Esq. 

Stuart A Goldstein, P. A 

7300 North Kendall Drive, Suite 380 

Miami, FL 33156 

Tel: (305) 670-1222 

Fax: (305) 400-0685 

stuartgoldsteinpa@att.net 

Dated: June 12, 2015 

.. ' ~ 

.. -

u . ~J 
2 

This Supplement to The Liberty Foundation's ("Liberty") Petition For 

Reconsideration of the Denial of its Petition to Renew Its Exemption ("Denial") is 

submitted to make a more complete response to the Denial so that it is clear Liberty 

deserves to have its Exemption renewed. There were two areas of concern the 

Federal Aviation Administration ("FAA") asked Liberty to address in this 

supplementary filing. These are Conditions and Limitations 2 and 22 of Exemption 

No. 8565C. Condition and Limitation 2 relates to the maintenance of the Liberty 

Belle aircraft and Condition and Limitation 22 relates to certain required 

notifications to the Atlanta FSDO. We will discuss Condition and Limitation 22 first 

as it requires less discussion. We will also address the NTSB's finding of probable 

cause. 

A very important preliminary matter Liberty wishes to bring to the attention 

of the Administrator is the changes Liberty has made to its maintenance program. 

Prior to the accident, Liberty utilized contract maintenance personnel. Although the 

contract personnel were well experienced, qualified, and professional, subsequent 

to the accident Liberty hired a full-time, in-house Director ofMaintenance and has 

an A & P mechanic who travels with the aircraft 24/7. This preserves continuity 

when conducting maintenance and focused inspections, and provides a focal point 

for all other Liberty operations' personnel. Liberty strives to embrace greater 

consistency with its maintenance program while providing for greater 

interdependability within the organization. 
3 

Condition And Limitation No. 22 

Condition and Limitation 22 of Liberty's Exemption requires Liberty to notify 

the Atlanta FSDO within 24 hours of: (1) each in-flight fire in any system or area that 

requires activation of any fire suppression system or discharge of a portable fire 

extinguisher; (2) except for training, each occurrence of engine shutdown or 

propeller feathering, and the reason for such shutdown or feathering; (3) each 

failure or malfunction of the fuel system, tanks, pumps, or valves; and (4) each 

malfunction, failure, or defect in any system or component that requires taking 

emergency action of any type during the course of any flight. 

Liberty met the requirements of Condition and Limitation 22 when it 

promptly notified Atlanta FSDO Inspector Greer Parramore of the accident that 

occurred on June 13, 2011, and the details, such as they were known to Liberty at 

that time. Attached hereto as Exhibit 1 is the Declaration of Raymond Fowler, 

Liberty's Chief Pilot, attesting to the facts that on June 13, 2011 he personally 

notified Inspector Parramore of the known details of the fuel leak, fire, and engine 

shut down. Mr. Fowler also contacted Inspector Ray Stitchcomb to inform him of 

the accident. 

Condition and Limitation No. 2 

Condition and Limitation No. 2 requires Liberty to maintain its Limited 

Category airplane in accordance with: (1) the maintenance requirements as 

specified in the appropriate type certificate data sheet, as amended; (2) the FAA 

approved maintenance inspection program that meets the requirements of Sections 

91.409(c), (fJ(4) and (g); and (3) the appropriate military technical manuals 
4 

(Technical Orders). The Denial also states there was "an apparent inappropriate 

modification to the fuel system." (Emphasis added). Liberty understands the FAA's 

reference is directed to the fuel tank project in which Liberty replaced bladder fuel 

tanks with aluminum fuel tanks concluding in February, 2011, and the repair of the 

fuel leak in the number one fuel tank prior to the accident flight. For the following 

reasons, Liberty believes it met all of the requirements of Condition and Limitation 

No.2, and there was not an inappropriate modification of the fuel system. 

The Repair of the Fuel Tank Leak on June 12-13,2011 

Liberty met all of its obligations related to the repair of the fuel tank leak 

performed on June 12-13, 2011, prior to the accident flight. Condition and 

Limitation No. 19 of Exemption 8565C only requires that Liberty have "the services 

of an FAA-certified airframe and powerplant mechanic or an appropriately rated 

repair station available at all stopovers to perform all required maintenance 

inspections and repairs." Liberty met (and exceeded) this requirement because it 

utilized three A & P certificated mechanics to formulate a plan to repair the leak and 

then to repair the leak. Tr. 4-24-14, pp. 130-32 (Exhibit 2) 1 These certificated 

A&Ps were Rodney Schneider, Chuck Giese, and John Hess. 2 The repair consisted of 

repairing the crack at the edge of the weld flange by drilling out some of the bolt 

holes that were originally in the fuel tank so fasteners could be installed through the 

flange to help pinch it together and keep the crack from spreading. They also 

packed the crack externally with sealer and put bolts through the holes. They then 

1 The transcript references are to sworn testimony at the hearing before DOT Judge J. E. Sullivan in 

April, 2014. 

2 John Hess is also an ATP related pilot and is a Delta Air Lines Captain. He was pilot-in-command of 

the accident flight. 
5 

took an aluminum U channel (also called a C channel) extrusion that was tight fitting 

and bolted it to the edge of the seam. They then packed the U channel with 

additional sealer, thus making several layers of protection. Mr. Schneider testified 

the sealer used to repair this leak is the same sealer he used at Delta Air Lines to 

repair fuel tank leaks. Tr. 4-24-14, p. 129 (Exhibit 3). 

No FAA witness testified this repair was not accomplished according to 

accepted methods, techniques, and practices or that the repai~ was not 

accomplished by elementary methods. FAA witness Timothy Bourgoine testified 

packing the sealant from the outside was "an improvement." Tr. 4-22-14, p. 157 

(Exhibit 4). FAA witrless Thomas Duellman agreed there was nothing that 

mandated the leak be sealed from the inside (Tr. 4-23-14, p. 211, Exhibit 5) and 

FAA witness Thomas Soerens agreed not all methods, techniques, and practices are 

written in the FARs or anywhere else. Tr. 4-23-14, p. 134 (Exhibit 6). 

In addition, Liberty fully complied with the requirements of AC120-16E CHG 

1 which specifies on pages 5-6 (Paragraph 201) the differences in maintenance and 

inspection programs between Parts 121/135 carriers and owners/operators under 

Part 91, such as Liberty. (Exhibit 7). Under paragraph 201, the Advisory Circular 

makes clear that for Part 91 owners/operators "The authorized and certificated 

person(s) has the responsibility to perform the maintenance properly in accordance 

with the manufacturer's manual and to approve the aircraft for return to service. 

The owner /operator does not have this responsibility. However, the 

owner j operator is responsible for ensuring maintenance personnel make 

appropriate entries in the aircraft maintenance records indicating the aircraft has 
6 

received approval for return to service." Emphasis added. In accordance with the 

Advisory Circular, Liberty appropriately relied on the expertise of the three A & P 

mechanics to properly repair the leak and on Mr. Schneider to return the aircraft to 

service. 

Both Mr. Schneider and Captain Hess testified at the hearing that a 

maintenance log entry was made in the aircraft's discrepancy log prior to the 

accident flight. The discrepancy log was kept in the airc~aft as part of the aircraft's 

maintenance records and was destroyed in the post landing fire. Mr. Schneider 

specifically testified that he prepared the maintenance record entry in the aircraft's 

log book, that he signed the entry, and entered his A 8r P certificate number, all as 

required by FAR 43.9(a). Tr. 4-24-24, 157 (Exhibit 8). Mr. Schneider's testimony 

was not rebutted by any FAA witness or document. 

Captain Hess specifically testified that before he flew the aircraft on June 13, 

2011, he personally reviewed the discrepancy log entry. Tr. 4-24-14, p. 121 

(Exhibit 9). He testified Mr. Schneider wrote the discrepancy and also returned the 

aircraft to service. Tr. 4-24-14, pp. 121-22 (Exhibit 10). An FAA witness (Mr. 

Bourgoine) also testified and confirmed that Liberty used the discrepancy log form 

for writing up and clearing maintenance discrepancies. Tr. 4-22-14, pp. 146, 150 

(Exhibit 11). A copy of the discrepancy log form is attached hereto as Exhibit 12. 

Mr. Schneider and Captain Hess testified it was procedure to use the discrepancy log 

entry form to write up and clear maintenance issues when the aircraft was touring. 

See, Exhibits 8 and 9, above. 
7 

The NTSB Report states: "A postaccident examination noted that the C 

channel installed as part of the No. 1 main fuel tank repair earlier in the week was 

partially separated." That may be a true statement, however the NTSB was in error 

not to have mentioned that the fuel tank was substantially damaged by salvage 

wrecker crews who essentially destroyed the left wing taking it apart. Captain Hess 

was on the scene immediately and personally observed the number 1 main fuel tank 

repair was not damaged and the fuel tank itself was intact. The NTSB was not on the 

scene when Captain Hess made these observations and it is not known when or 

where NTSB's "postaccident examination" was made. Captain Hess's in person, 

immediately post-accident observations deserve credit as to the status of the repair. 

In addition, the NTSB said it could not determine the ignition source of the fire. 

Guesses are not a fair way to determine fault. A copy of Captain Hess's Declaration 

is attached hereto as Exhibit 13, wherein Captain Hess states "I personally observed 

the wrecker crew significantly destroy the left wing and seriously damage the 

number one fuel tank. I personally observed a person on-site inspecting then 

rubbing or scraping at the repair area. I personally observed the salvage crew 

attempt to break the outer wings off (containing the number on fuel tank), by 

bending the spars with heavy equipment, which I observed damaged that tank." 

For these reasons, Liberty has shown the fuel tank leak in the number one 

fuel tank was repaired appropriately and in accordance with accepted methods, 

techniques, and practices and the applicable Advisory Circular. 3 Even if it is 

concluded a violation occurred related to the repair of the fuel tank leak, Liberty the 

3 The type certificate data sheet references "structural repairs" in Note 3. FAA agreed, and it was a 

stipulated fact in the hearing, that the fuel tanks in the B-17 are not structural components. 
8 

organization is not responsible because it fulfilled all of its obligations under the 

F ARs and the Advisory Circular by utilizing experienced, professional A & P 

mechanics. 

The Replacement of the Bladder Fuel Tanks with Aluminum Fuel Tanks 

During the 2011 Winter maintenance, the bladder fuel tanks were replaced 

with aluminum fuel tanks. Neither the NTSB's probable cause determination nor its 

factual report found that the fuel tank replacement was a major alteration (or a 

major repair) notwithstanding it referenced both definitions of major alteration that 

appear in the FARs. Unless the project was a major alteration, no Form 337 was 

required.4 Nevertheless, in the interest of completeness, we will show why the fuel 

tank replacement project was not a major alteration. 

The term "major alteration" is defined in two places in the F ARs - Appendix A 

to Part 43 and 14 CFR Section 1.1. The fuel tank replacement project was not a 

major alteration under both definitions. 

The Fuel Tank Project Was Not A Major Alteration As Defined in Appendix A 

To Part43 

"Major Alteration" is defined in the FARs in Appendix A to Part 43. Part 43 

is entitled "Maintenance, Preventive Maintenance, Rebuilding, And Alteration." 

Appendix A is entitled "Major Alterations, Major Repairs, And Preventive 

Maintenance." The only definition of an airframe (as opposed to engine) major 

alteration that appears in Part 43 is in Appendix A, and is as follows: 

4 The fuel tank replacement could not have been a major repair since, as noted above, (1) FAA 

stipulated in the DOT hearing that the fuel tanks are not structural members and (2) there was no 

evidence of any substantial change in weight, balance, performance, etc., as required by the FARs 

resulting from the change from bladder to aluminum fuel tanks. 
9 

(a) Major alterations- (1) Airframe major alterations. Alterations of the following 

parts and alterations of the following types, when not listed in the aircraft 

specifications issued by the FAA, are airframe major alterations:, 

(i) Wings 

(ii) Tail surfaces 

(iii) Fuselage 

(iv) Engine mounts 

(v) Control system 

(vi) Landing gear 

(vii) Hull or floats 

(viii) Elements of an airframe including spars, ribs, fittings, shock 

absorbers, bracing, cowling, fairings, and balance weights 

(ix) Hydraulic and electrical actuating system or components 

(x) Rotor blades 

(xi) Changes to the empty weight or empty balance which result in 

an increase in the maximum certificated weight or center of 

gravity limits of the aircraft 

( xii) Changes to the basic design of the fuel, oil, cooling, heating, cabin 

pressurization, electrical, hydraulic, de-icing, or exhaust systems 

(xiii) Changes to the wing or to fixed or movable control surfaces 

which affect flutter and vibration characteristics. 

Emphasis added. There are different standards or criteria as to what constitutes a 

major alteration depending on the part of the airframe involved. Any alteration to 

the parts listed in items (i) - (x) is a major alteration. There are no modifying 

criteria for those parts. Any alteration to the wings, tail surfaces, fuselage, engine 

mounts, control system, landing gear, hull/floats, certain elements of an airframe, 

hydraulic and electrical actuating system/components, and rotor blades, is defined 

as a major alteration. 

The major alterations defined (xi)-(xiii), however, are different, and each 

requires more than just any alteration, in and of itself, to constitute a "major 

alteration". For example, item (xi) requires that for an alteration to the empty 

weight or empty balance to be a major alteration it must not only be an alteration, 
10 

but the alteration must also "result in an increase in the maximum certificated 

weight or center of gravity limits of the aircraft." If an alteration to the empty 

weight or empty balance does not result in an increase in the maximum certificated 

weight or center of gravity limits, the alteration is not, by FAA regulatory definition, 

a major alteration. 

Similarly, item (xiii) requires that for an alteration to the wing or fixed or 

movable control surfaces to be a major alteration, it must not only be an alteration, 

but the alteration must also "affect flutter and vibration characteristics." If an 

alteration to a wing or a fixed or movable control surface does not affect flutter and 

vibration characteristics, it is not, by FAA regulatory definition, a major alteration. 

Item (xii) is written in the same manner as items (xi) and (xiii), and very 

differently from items (i) - (x). Item (xii) requires that for an alteration to the fuel 

system to be a major alteration, there must be an alteration and that alteration must 

also constitute "changes to the basic design" of the fuel system. If an alteration to 

the fuel system does not change its "basic design," by definition it cannot constitute 

a major alteration of that system. 

Mr. Schneider described the work performed on the fuel system during the 

2010-2011, winter maintenance period. Tr. 4-24-14, p. 159-60 (Exhibit 14). The 

aluminum tanks were removed from the aircraft and the bladders were removed 

from the aluminum tanks. Upon removing the bladders, the team determined the 

metal shells were in excellent condition. Later, a determination was made, after 

consultation with a DER (FAA Designated Engineering Representative), that the 

aluminum shells could be used as fuel tanks. After the aluminum tanks were 
11 

removed, they were media blasted to remove paint and corrosion - none was found. 

The aluminum tanks were taken to Cobb Industrial Fabricators where the welding 

was accomplished. After welding, the tanks were plumbed, leak checked, and then 

reinstalled in the aircraft. 

The process of changing the vessels that held the fuel was accomplished by 

not changing the basic design of the fuel system at all. Mr. Schneider described this 

process. Some flexible fuel lines were replaced with identical new fuel lines that had 

the same fuel capacity as the old lines; the same fuel pumps were re-installed; all of 

the original plumbing was re-installed; all of the fittings, electrical connections, and 

plumbing connections were re-installed. Where there had been attach points on the 

rubber bladders, these were replaced with duplicated new attach points so the same 

fitting would screw into the aluminum tanks where the old attach points were 

located so there was no change at all in the plumbing. All of these fittings and 

attachments were in the same exact places as they were when there were bladder 

liners within the tanks. The same fuel sensors were re-installed and had the same 

functionality Tr. 4-24-14, p. 166-168 (Exhibit 15). The vent fuel flow connections 

in the new system were the same equipment taken from the old system and were in 

the same places. After the project was completed, the system was checked for leaks, 

capacity, and functionality. In terms of the capacity of the aluminum tanks as 

compared to the bladder liners, Mr. Schneider stated they found a difference of only 
12 

2- 3 gallons in the big tank (a 425 gallon tank). The B-17 fuel system in the Liberty 

Belle held 1700 gallons, or 10,200 pounds. Tr. 4-24-14, pp. 169-70 (Exhibit 16).5 

Cullen Underwood, one of Liberty's pilots, further described the fuel tank 

project. They contacted two DERs (Rocky Howard and Terry Bowden), with whom 

Mr. Underwood personally had conversations about the project. A $500.00 retainer 

check was sent to DER Bowden. Tr. 4-24-14, pp. 241-42 (Exhibit 18). Mr. 

Underwood sent drawings of the shells and their support systems to DER Howard. 

Ultimately, DER Howard said that since B-17s had previous aluminum fuel tanks, he 

did not have an issue with using the aluminum shells as long as they maintained the 

attach points. Tr. 4-24-14, pp. 242-43,246 (Exhibit 19).6 

David Wilkins is the owner of Cobb Industrial Fabricators, the company that 

performed the welding operations on the aluminum tanks. After the tanks were 

received, they were cleaned and patches were made. Cobb received fittings from 

Mr. Underwood and welded all the fittings and path plates in place. Mr. Wilkins did 

not personally perform the welding; three welders who each had between twenty 

and forty years of welding experience performed the welding. Mr. Wilkins inspected 

the welding and found it was satisfactorily performed. Mr. Wilkins' participation in 

the project was direct and personal, including supervising the welding of the various 

openings on the aluminum fuel tanks. Each vent and fuel flow connection was 

welded to the tank using AN bung fittings; the fuel caps, boost pumps, and level 

5 The two main tanks hold 425 gallons each; two feeder tanks hold 213 gallons each and two other 

feeder tanks hold 212 gallons each. CX 20, p. 193; Tr. 4-24-14, pp. 231-32 (Exhibit 17). A gallon of 

aviation fuel weights six pounds. 

6 FAA Inspector Duellman testified later model B-17 s were manufactured with aluminum fuel tanks. 

Tr. 4-23-14, pp. 205-06 (Exhibit 20). 
13 

sensor mounts were welded to the tanks in the appropriate and same locations as 

before. All fittings were made from 6061 aluminum and all welding was done using 

the TIG method and the filler rod was 4043, which is what is recommended by all 

manufacturers for welding these alloys? No leaks were found and Mr. Wilkins 

considered the welding normal. Tr. 4-24-14, p. 193 and Wilkins Declaration 

(Exhibit 22). 

The testimony of Messers. Schneider, Underwood, and Wilkins established 

there was no change in the "basic design" of the fuel system. The only change was of 

the material that holds the fuel. All of the hoses, fittings, plumbing, pieces, and parts 

of the fuel system when it had bladder tanks, were the same and in exactly the same 

places, when the fuel-holding vessels were changed to aluminum. FAA's witnesses 

agreed. Mr. Bourgoine said the purpose of the fuel system is to receive and store 

fuel in a safe manner and deliver clean fuel to where it is needed - the engines. The 

system has fuel selector valves, transfer pumps, etc., to accomplish this purpose. Mr. 

Bourgoine agreed the new system performed these functions. 8 The design of a fuel 

system is, axiomatically, to support its purpose, which is to store and deliver clean 

fuel to the engines. It does this through a series of fuel tanks, fuel lines, fuel pumps, 

carburetors, filters, vent lines, etc. No FAA witness could or did testify this basic 

design was changed or that the project changed the purpose of this fuel system. 

Liberty also produced a true B-17 expert - Gary Norville, who testified the 

changes to the fuel system did not constitute a major alteration. Mr. Norville owns 

7 Mr. Bourgoine agreed TIG welding was appropriate. Tr. 4-22-14, p. 162 (Exhibit 21). 

8 Mr. Bourgoine's statement that the system was not the same because it eventually leaked, says 

nothing about its basic design. 
14 

and operates American Aero Services, a warbird restoration and maintenance 

facility, in New Smyrna Beach, Florida. By "warbird," Mr. Norvile means former 

military aircraft, primarily World War II and Korean War vintage aircraft. Tr. 4-24-

14, p. 58 (Exhibit 23). 

Mr. Norville has been in the business of restoring and maintaining these 

warbird aircraft for approximately 26 years, since 1986-87. Tr. 4-24-14, p. 59 

(Exhibit 24). He has an A & P certificate and an Inspection Authorization (IA). Mr. 

Norville performs ground-up restorations of warbird aircraft in his business -

meaning total disassembly of the aircraft, restoring all of the systems and bringing 

the aircraft back to airworthy flying status. Tr. 4-24-14, p. 60 (Exhibit 25). Mr. 

Norville regularly performs maintenance and preventive maintenance on two B-17s 

- one owned by The Collings Foundation and one owned by The Fighter Factory. Tr. 

4-24-14, pp. 62-3 (Exhibit 26). Mr. Norville has also maintained The Collings 

Foundation's B-24 aircraft (one of two in the world presently flying). DOT Judge 

Sullivan qualified Mr. Norville as an expert in "aviation maintenance and in B-17 

maintenance and restoration." Tr. 4-24-14, p. 68 (Exhibit 27). 

Mr. Norville testified the purpose of the fuel system in the B-17 is to 

provide fuel to the engines so the engines will run. Tr. 4-24-14, p. 81 (Exhibit 28). 

This is accomplished through fuel tanks, fuel boost pumps, and fuel lines, which 

send fuel to the carburetors. Based on his 28 years of experience maintaining and 

restoring warbird aircraft, Mr. Norville understands the term "major alteration" as it 

applies to warbird aircraft. As it specifically applies to B-17 aircraft, "major 

alteration" means changing of control surfaces, and the gross weight of the aircraft. 
15 

As it applies to the B-17's fuel system, "major alteration" "would be changing the 

flow of the fuel pump to a lessor or higher value, re-routing the fuel lines, and 

adding extra fuel tanks." As it relates to the gross weight of the aircraft, Mr. Norville 

testified merely changing the gross weight of the aircraft in the fuel system would 

not change the basic design ofthe fuel system. Tr. 4-24-14, p. 86 (Exhibit 29). 

Mr. Norville further explained the B-17 has a large and very long CG envelope. 

Tr. 4-24-14, p. 98 (Exhibit 30). As B-17s are operated today, they are well within 

their CG envelope and well under their maximum allowable gross weight. In 

wartime, B-17 s would go on missions carrying full fuel, 12 fifty caliber machine 

guns, and 10,000 pounds of bombs. They would come back, obviously much lighter 

since they were much lower on fuel, have no bombs and much less ammunition, and 

still be within their allowable CG envelope and weight envelope. Given Mr. 

Norville's maintenance credentials and his extensive experience (22+ years) 

maintaining and restoring warbird aircraft, including regularly maintaining two B17s, his opinion that the work performed on the Liberty Belle was not a major 

alteration should be given great weight. 

Liberty believes the record amply establishes the fuel tank project was not a 

"major alteration" as defined in Appendix A to Part 43 for the reasons set out in 

detail above.9 

9 Further, Item (a)(xii) requires "change~ to the basic design of the fuel system to constitute a major 

alteration. Even if the change to aluminum is considered to be a major alteration, changing only the 

material of the vessels that hold the fuel is just one change. There were no other changes to the fuel 

system design. 
16 

The Fuel Tank Project Was Not A Major Alteration As Defined In FAR Section 

1.1 

FAR Section 1.1, entitled "General Definitions" provides in pertinent part: 

As used in Subchapters A through K of this chapter, unless the context requires 

otherwise (emphasis added): 

Major alteration means an alteration not listed in the aircraft, aircraft engine, or 

propeller specifications - -

(1) That might appreciably affect weight, balance, structural strength, performance, 

power plant operation, flight characteristics, or other qualities affecting 

airworthiness; or 

(2) That is not done according to accepted practices or cannot be done by elementary 

operations. Emphasis added. 

The very general and undefined terms used in this definition of "major alteration," 

such as "might appreciably affect," "accepted practices," and "elementary 

operations" contrast sharply with the precise definition of "major alteration" in 

Appendix A to Part 43 discussed above. Therefore, reading Section 1.1 in context 

with Appendix A to Part 43 strongly suggests giving preference to the more detailed 

and specific definition in Appendix A In further support of this interpretation, the 

second paragraph of FAR 43.9 (a) ( 4) states: "In addition to the entry required by this 

paragraph [relating to alterations, etc.], major repairs and major alterations shall be 

entered on a form, and the form disposed of, in the manner prescribed in Appendix 

B. [to Part 43], by the person performing the work." Emphasis added. There is no 

similar reference to adherence to Section 1.1.10 

10 To the same effect, Inspector Soerens testified he prepared FAA's Enforcement Investigative 

Report (EIR) in which, when referencing major alterations, he referenced only Appendix A to Part 43, 

but made no reference whatsoever to Section 1.1. Tr. 4-23-14, pp. 99-100 (Exhibit 31). 
17 

FAA's claim that the work performed on the fuel tanks was a "major alteration" 

as defined in Section 1.1 relies on Timothy Bourgoine's testimony. The applicable 

portions of that Affidavit (as well as Mr. Bourgoine's testimony), paragraphs 20-22, 

are a series of conjectures, guesses, and hypotheticals which are not sufficient to 

support a plausible expert opinion. 

In paragraph 20, Mr. Bourgoine opines as a reason the alteration was a major 

' 

alteration, that one of the welds resulted in a crack several months later. This 

reasoning would mean any alteration or repair that subsequently fails, is a major 

alteration. This cannot be the meaning intended by the FARs, especially when read 

in context with Appendix A It clearly contradicts the more precise definition of 

major alteration in Appendix A to Part 43, discussed above. The two definitions 

cannot logically be read harmoniously together. 

In paragraph 21 of his Affidavit, Mr. Bourgoine further conjectures the removal 

of the bladder tanks "could" have had an appreciable effect on the airworthiness of 

the aircraft and its fuel system. There is no fact-based support in Mr. Bourgoine's 

Affidavit, or in his testimony, which comes even close to establishing this assertion 

and it is directly contradicted by Mr. Norville's testimony. Mr. Bourgoine goes on to 

conjecture that "the alteration increased the fuel capacity of the aircraft." Again, 

there is zero factual support in the record for this claim (other than the 2-3 gallons 

mentioned by Mr. Schneider) and it is contrary to the Declarations and testimony of 

Mr. Schneider and Mr. Underwood who have personal, first-hand knowledge of the 

work performed. 
18 

Adding conjecture upon conjecture, Mr. Bourgoine stated the increased fuel 

capacity "affec[ted] weight and balance and possible stresses placed on the wing 

structure." Emphasis added. Not only does Mr. Bourgoine not support his claim of 

an increase in fuel capacity, he does not say, because he cannot say, how much fuel 

capacity was increased, nor does he provide engineering or technical support that 

the alleged increase in fuel capacity had any effect whatsoever of stresses on the 

wing structure. These guesses were directly contradicted by Mr. Norville's 

testimony discussed above as well as by Inspectors Soerens and Duellman, who 

conceded this aircraft (and all aircraft) have center of gravity (CG) and weight and 

balance envelopes and so long as the aircraft is operated within those envelopes, the 

aircraft is safe and airworthy. Inspector Soerens did not know the difference in 

weight, if any, resulting from the project and did not know if any such difference 

caused the aircraft to ever operate outside its CG or weight and balance envelopes. 

Tr. 4-23-14, pp.129-31 (Exhibit 32). Nor did he even know the CG numbers for the 

Liberty Belle. Inspector Duellman agreed aircraft can be operated at various 

weights and still be within their CG and weight limits. Tr. 4-23-14, pp. 205-06 

(Exhibit 20, above). 

Mr. Bourgoine then says these added stresses (which he does not support 

with facts) made the aluminum tanks "more susceptible to vibrational stresses in 

ways that a bladder fuel tank was not." This conclusion was reached with absolutely 

no supporting bases in fact and Mr. Bourgoine never offered any evidence regarding 

"vibrational stresses" on bladder vis-a-vis aluminum fuel tanks. If Mr. Bourgoine or 

the FAA had access to data to support these claims, they would have presented that 
19 

data at the hearing. In the same vein, Mr. Bourgoine asserts "an aluminum fuel tank 

would not respond the same way to the stresses of the in-flight motion of thousands 

of pounds of aviation fuel as a semi-rigid bladder tank would." Mr. Bourgoine makes 

this unsupported claim applicable to all aluminum tanks as he does not refer to as 

the aluminum tanks in N390TH, but to "an" aluminum tank.11 

Mr. Bourgoine concedes in his Affidavit the newly fabricated fixtures and 

attachments "may or may not have been of equal quality with the components they 

were replacing." This guess is directly contrary to the direct-knowledge testimony 

of Mr. Schneider and Mr. Underwood that the fixtures, fittings, and other 

components were either the same parts taken out or, in the case of attach points, 

exact duplicates. Assuming they were of equal quality, Mr. Bourgoine goes on to 

speculate, because they were attached to an aluminum tank as opposed to a bladder 

tank "could impact how they responded to stress during flight." Emphasis added. 

As with all of Mr. Bourgoine's assertions in paragraph 21 and in his testimony, FAA 

failed to provide any basis in fact to support its claims, such as engineering data or 

test results. 

Appropriately, Mr. Bourgoine concludes paragraph 21 emphasizing the nonfoundational bases of his claims: "All of these potential issues were ways in which 

the alteration might have affected the qualities affecting the airworthiness of the 

aircraft ... ". Emphasis added. 

11 In this regard, FAA continued in its unsupported statement that the bladder tanks had baffles 

within them, thus supposedly making them less susceptible to "stresses" of some sort than the 

aluminum tanks which FAA claims did not have baffles. That the bladders did not have baffles was 

confirmed by Mr. Schneider who actually saw that they had no baffles. Tr. 4-24-14, p.169 (Exhibit 

16,above). 
20 

In paragraph 22 of his Affidavit and in his testimony, Mr. Bourgoine reaches 

the unsupported conclusion that "the fabrication of new fuel tanks out of the 

aluminum shells was a major alteration because fabricating components and 

welding of this nature are not an "elementary operation." Neither FAA, nor Mr. 

Bourgoine, provide a definition of "elementary operations" other than Mr. 

Bourgoine's testimony that the welding would not be an elementary operation for 

most A & Ps. Tr. 4-22-14, p. 122 (Exhibit 33). He does not say how the work done 

on the aluminum tanks was not an elementary operation. Moreover, his 

unsupported conclusion was contradicted by Mr. Wilkins who testified the welding 

was non-complex and simple and that the materials used were appropriate for the 

project. Tr. 4-24-14, p. 196 (Exhibit 34). Mr. Bourgoine conceded on cross 

examination that it was good the welding was accomplished by professionals ("I 

think it was [a] simple, non-complex job for a professional welding agency"). Tr. 4-

22-14, p. 157 (Exhibit 35). 

FAA is required to produce evidence, not guesses, that satisfies the 

evidentiary requirements of the regulations. FAA's attempt to rely on FAA Order 

8900.1 is misplaced. FAA agreed that Order is a guide, is not regulatory (Tr. 4-23-

14, pp. 112-13, Exhibit 36), and is not binding on owners/operators. The clear 

language of Appendix A to Part 43 discussed in detail above trumps the inconsistent 

"guidance" of ex 23.12 

12 The Order clearly contradicts Appendix A to Part 43 which requires "changes" to the basic design. 

It also contradicts the modifying language in Section 1.1. To elevate the Order over the Regulations 

requires re-writing Appendix A and Section 1.1 and eliminating the inconsistent language of 8900.1. 
21 

For all of the above reasons, Liberty respectfully suggests the fuel tank 

replacement project was not a major alteration. Accordingly, no Form 337 was 

required. It is important to note, when viewing Liberty's own maintenance 

submissions, the historical data for N390TH depicts no fewer than twelve (12) Form 

337s had been either approved or accepted, including one approved alteration 

utilizing DER approved data. In this regard, attached hereto as Exhibit 37 is a 

listing of those Form 337s. The document also shows five (5) Form 337s obtained 

by Liberty since it began operating N3703G. This proves Liberty always strives to 

operate within the Federal Aviation Regulations and associated guidance. 

Respectfully submitted, 

The Liberty Foundation 

By:bJa~ Stuart A. Goldstein 

Stuart A. Goldstein, P. A. 

Counsel for The Liberty Foundation 

7300 North Kendall Drive, Suite 380 

Miami, FL 33156 

Tel: (305) 670-1222 

Fax: (305) 400-0685 

stuartgoldstein pa@ a tt.net 
DECLARATION OF RAYMOND FOWLER 

1. My name is Raymond Fowler. I reside at 3501 Jones Mill Road, Carrolton, 

GA. I make this Declaration upon my personal knowledge. 

2. I hold an Airline Transport Pilot Certificate and am employed as a pilot by 

Delta Air Lines where I have worked for 14 years. I am also a rated Captain on the B-17. 

3. During the weekend of June 11-12, 2011, I was in Aurora, Illinois flying the 

Foundation's P40 aircraft. 

4. On June 13, 2011, following the off-airport landing on N390TH, I personally 

notified Inspector Greer Parramore of the Atlanta FSDO of the accident, to include 

known details of the fuel leak, fire and engine shut down. In addition, I contacted 

Inspector Ray Stitchcomb to inform him of the accident. 

5. I declare under the penalty of perjury under the laws of the United States of 

America that the foregoing is true and correct. 

Executed on this 10 day of June, 2015. 

Raymond Fowler 

1 
In the Matter of: Liberty Foundation April 24, 2014 CCR # 016895-6 Page 130 

1 Q. About noon, did you say? 

2 A. I believe so, yeah. 

3 Q. What did you do after you got there? 

4 A. Well, they already had the airplane, the 

5 access panel opened up underneath the tank. And, we 

6 looked at it, put a little bit of fuel in it just to 

7 see what was going on, maybe two or three gallons. 

8 And, saw where it was coming out and ... 

9 Q. Had the tank been emptied of fuel by the 

10 time you got there? 

11 A. Yes. 

12 Q. So, what did you discover? 

13 A. We found a crack in the weld seam on the 

14 inboard end of the number one main tank, down near the 

15 bottom. It was about, as I recall, somewhere between 

16 three and five inches long. 

17 Q. Were there any other A&P mechanics that you 

18 were working with, with regard to this fuel leak? 

19 A. Yeah, there were two others. John Hess and 

2 0 Chuck Giese. 

21 Q. Were the three of you and anyone else 

22 working on a plan to repair the leak? 

23 A. Yeah, once we saw where it was, we were 

24 starting to discuss, you know, what would be the best 

25 way to fix this. 

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In the Matter of: Liberty Foundation April 24, 2014 CCR # 016895-6 Page 131 

1 Q. Was Mr. Underwood involved in that process? 

2 A. Yes, he was. 

3 Q. What plan did the four of you devise to fix 

4 the leak? 

5 A. We finally decided to do the weld that was 

6 cracked on the edge of a flange where two pieced 

7 joined together and previously it had some bolt holes 

8 that had been plug welded up. We decided to drill out 

9 some of those bolt holes so we could install some 

10 fasteners through the flange to help pinch it together 

11 and keep the crack, hopefully, from spreading. We 

12 also packed the crack externally with the sealer that 

13 I had brought. Put the bolts in, we would pack the 

14 crack first, put the bolts in to squeeze it together, 

15 got some squeeze out. And, then took an aluminum U16 channel extrusion that was a tight fitting extrusion, 

17 to the edge of the seam, packed it with sealer and put 

18 it on, just as a kind of a backup, to try to make sure 

19 we didn't have any problems. 

20 Q. That extrusion you referred to has 

21 previously been referred to as a C-channel. Is that 

22 the same thing you're talking about? 

23 A. Yeah. 

24 Q. So, as I understand it, there were several 

25 layers of protection that you had put on to the, to 

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In the Matter of: Liberty Foundation April 24, 2014 CCR # 016895-6 Page 132 

1 repair the leak. Is that correct? 

2 MR. STEVENSON: Objection, leading. 

3 THE COURT: Sustained. 

4 Q. Were there several layers of protection that 

5 you put on to repair the leak? 

6 A. Yeah, I believe at least two. 

7 Q. Was it improper to place the sealant on the 

8 outside of the tank? 

9 MR. STEVENSON: Objection. This 

10 witness has not been qualified as an expert. 

11 THE COURT: Sustained. 

12 MR. GOLDSTEIN: I proffer Mr. Schneider 

13 as an expert in areas of general aviation and airline 

14 maintenance. 

15 MR. STEVENSON: Given the breadth of 

16 that proffer, I would like to voir dire the witness 

17 

18 THE COURT: You may. 

19 MR. STEVENSON: as to his 

20 expertise. Thank you, Your Honor. 

21 VOIR DIRE EXAMINATION 

2 2 BY MR. STEVENSON: 

23 Q. Mr. Schneider, opposing counsel has asked 

24 you right now about something about a repair but he's 

25 making a broader proffer as to your expertise. So, do 

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In the Matter of: Liberty Foundation April 24, 2014 CCR # 016895-6 Page 129 

1 sealer that we had gotten the night before down at 

2 Delta. I'd asked to get some sealer from them, they 

3 had no problem with that. 

4 Q. What, why did you get the kind of sealer 

5 that you got? 

6 MR. STEVENSON: Objection, Your Honor. 

7 Before this witness testifies about, I will, I 

8 withdraw the objection. 

9 THE COURT: So noted. You may answer 

10 the question. 

11 A. Could you repeat it? 

12 Q. I keep ending questions in preposition 

13 instead of, but why did you get the kind of sealer 

14 that you took with you? 

15 A. The sealer that we got was the same kind we 

16 use at Delta to seal fuel leaks. 

17 Q. You arrived at Aurora at about what time on 

18 Sunday? 

19 A. It was Saturday, let's see, was it Saturday? 

20 I can't remember what day we got there. 

21 Q. Whatever day it was ... 

22 A. Yeah, we got there in the early afternoon. 

23 Q. The day that you got there was the day 

24 before the last flight of the aircraft? 

25 A. Okay, that would have been Sunday, yeah. 

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In the Matter of: Liberty Foundation April22, 2014 CCR # 016895-4 Page 157 

1 would need some type of engineering to show that 

2 they're appropriate in size, shape and, you know, in 

3 the way they would be welded on. So I disagree that it 

4 can easily be said that they were of equal, of equal 

5 quality. And then number eight says the welding that 

6 was done on the aluminum tanks was not complicated at 

7 all. It was a simple, non-complex job. I disagree 

8 with that. I think it was simple, non-complex job for 

9 a professional welding agency, but it wasn't an 

10 elementary type of operation that normally we can do 

11 or maybe Rod had done. Under number nine it says that 

12 there was no evidence that the repair failed. I just 

13 have no knowledge about that. I don't know what 

14 occurred there so I can't support that or contest it. 

15 Q. You don't disagree with it, you just don't 

16 know. 

17 A. Right. FAA's claim that the repair was 

18 improper because the sealant was packed from the 

19 outside is wrong. Packing the sealant from the outside 

20 was an improvement. Well, I guess that, I can't argue 

21 with that either. And number ten is kind of a general 

22 statement about methods and practices. It, I don't 

23 agree with it because I don't agree with turning that 

24 shell into a tank without having proper engineering 

25 and specifications to work from. But the actual 

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In the Matter of: Liberty Foundation April23, 2014 CCR # 016895-5 Page 211 

1 Q. Do you know if after the February 

2 maintenance it was ever operated in excess of its 

3 weight limitation? 

4 A. No, I don't know that either. 

5 Q. Thank you. Do you know if there's anything 

6 in writing that requires the seal that Mr. Schneider 

7 applied to the tank in June be applied on the inside 

8 of the tank as opposed to the outside? 

9 A. No, there's nothing in writing except the 

10 instructions of the manufacturer that manufactures the 

11 sealant. 

12 Q. And what, but they don't say it must, they 

13 say it should be, right? 

14 A. Yeah. 

15 Q. So not mandatory. 

16 A. No. But it does a much better job if it's 

17 inside. 

18 Q. But it's not mandatory. Now, isn't that 

19 correct? 

20 A. Yeah. Yes. Sorry. 

21 Q. Thank you. Thank you. You testified a 

22 little bit about methods, techniques and practices. 

23 Do you recall that, sir? 

24 A. Yes, sir. 

25 Q. Are all methods, techniques and practices 

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In the Matter of: Liberty Foundation April 23, 2014 CCR # 016895-5 Page 134 

1 Q. Do you know for a fact whether or not it was 

2 every operated over its maximum certificated takeoff 

3 weight between June, I'm sorry, between February of 

4 2011 and June of 2011? 

5 A. I do not. 

6 Q. Is every method, technique and practice, let 

7 me strike that. Is every maintenance, method, 

8 technique and practice specified in the Federal 

9 Aviation Regulations? 

10 A. As a physical practice? 

11 Q. Do you know the term methods, techniques and 

12 practices? You're familiar with that term? 

13 A. Yes, sir. 

14 Q. Okay. Is every, those terms are in 43.13, 

15 correct? 

16 A. Yes, sir. 

17 Q. Okay. Is every method, technique and 

18 practice that's acceptable to the Administrator set 

19 forth in the Federal Aviation Regulations? 

20 A. The regulation references the manufacturer's 

21 document 

22 Q. It's a yes or no question, sir. 

23 A. Okay, then it would be no. 

24 Q. Is every method, technique and practice, 

25 maintenance, method, technique and practice that is 

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6/7/11 AC 120-16E CHG 1 

CHAPTER 2. AIRWORTHINESS RESI>ONSIBILITY 

200. RESPONSIBILITY FOR AIRCRAFT MAINTENANCE. 

I a. Part 119 Certificate Holder Responsibilities. Consistent with §§ 121.363 and 

135.413, you, as a part 119 certificate holder. are primarily responsible for ( 1) the airworthiness 

of your aircraft. and (2) the performance of all ofthe maintenance or alterations on your aircraft. 

Your air carrier certificate makes you a maintenance entity. Under your air carrier certificate, 

you accomplish your own maintenance, preventive maintenance, or alterations, or you can use 

other persons who are not direct employees to accomplish that work. Consistent with our 

regulations in§§ 121.l(b) and l35.l(a)(2), the part 121 or 135 regulations govern each person 

that you usc or that you employ for any maintenance, preventive maintenance, or alteration of 

your aircraft. Each of these persons that you use must be under your direction and control and 

must follow your maintenance program. 

I b. Maintenance Responsibilities. For any work done on your aircraft, you retain direct 

and primary responsibility for performing and approving all maintenance and alterations, 

whether you accomplish that work or whether someone else does it for you (for example, a 

maintenance provider such as a repair station). However. you always retain primary 

responsibility for the performance and approval of the maintenance done by that maintenance 

provider. 

I 

201. DIFFERENCES BETWEEN PROGRAMS. The following table provides a comparison 

of the differences between air carrier maintenance programs and part 91 general aviation 

inspection programs. 

Table 2-1. Maintenance Program and Inspection Program Differences 

Element Part 121 and 135 Air Carriers Part 91 Owners/Operators 

Use of a Required to use a maintenance Required to use an inspection program. 

maintenance or program for its aircraft. 

an inspection 

program. 

Responsibilities Responsible for the performance Responsible for maintaining the aircraft 

within the of maintenance in accordance in an airworthy condition 

relevant with its maintenance program and (14 CFR part 91, § 91 .403). 

program. manual, as well as the 

airworthiness of its aircraft, 

including airframes, aircraft 

engines, propellers, appliances, 

and parts thereof. 

NOTE: The wording in part 91 is deliberately different from the wording in 

14 CFR parts 121 and 135 and is consistent with the difference between air 

transportation and other air commerce described in 49 U.S.C. § 44701. 

Responsible tor the development Responsible for the selection of an 

and use of the maintenance existing inspection program and the 

Par 200 7 
AC 120-16E 9/11/08 

program and manual. determining scheduling of aircraft for the inspections, 

the method of performing and for ensuring that discrepancies that 

maintenance. a required occur between scheduled inspections are 

inspection list, a continuous repaired. 

analysis and surveillance system, 

a maintenance organization that 

can exercise operational control 

over maintenance operations, and 

other items that collectively and 

systematically serve to ensure 

each aircraft has been properly 

maintained for operations in air 

transportation and is Airworthy. 

Must determine what Must make the airplane available to 

maintenance is required, how to authorized and certificated person(s) 

do it, when to do it, perform that who accomplish inspections and other 

maintenance, and approve its own maintenance. 

aircraft for return to service. May 

authorize another person to 

accomplish the maintenance 

work, but the maintenance must 

be carried out according to the air 

carrier's maintenance program 

and manual. The air carrier still 

retains the responsibility for the 

proper completion of 

maintenance (part 121 § 121.363 

or part 135 ~ 135.413). 

Along with FAA oversight, is the The authorized and cet1ificated person( s) 

primary authority with regard to has the responsibility to perform the 

its maintenance program. Holds maintenance properly in accordance with 

the primary responsibility for the the manufacturer's manual and to 

performance of maintenance in approve the aircraft for return to service. 

accordance with its maintenance The owner/operator does not have this 

program and manual, as well as responsibility. However, the 

the airworthiness of its aircraft, owner/operator is responsible for 

including airframes, aircraft ensuring maintenance personnel make 

engines, propellers, appliances, appropriate entries in the aircraft 

and parts thereof. maintenance records indicating the 

aircraft has received approval for return 

to service. 
In the Matter of: Liberty Foundation April 24, 2014 CCR # 016895-6 Page 157 

1 Hess. 

2 Q. Thank you. Did all of the, I think you 

3 mentioned this, did all the A&P there agree that this 

4 was an appropriate repair? 

5 A. Yes. 

6 Q. Did you make a log entry after completion of 

7 this repair and the testing and so forth that you 

8 testified to earlier? 

9 A. Yes. 

10 Q. Where did you make that log entry? 

11 A. Actually, there were two. The first was on 

12 the onboard discrepancy log we keep on the airplane. 

13 When we're out on the field, we don't bring the log 

14 books with us so we use the discrepancy form to write 

15 up squawks and also to sign off corrective actions. 

16 And, then when I returned home, about a day or so 

17 later, I made an entry in the main aircraft flight log 

18 or maintenance log. 

19 Q. The discrepancy log form that you signed off 

20 the discrepancy on, did you sign that and put you're 

21 a&P number on it? 

22 A. Yes. 

23 Q. Did you describe the work that you did? 

24 A. Yes. 

25 MR. GOLDSTEIN: Sorry, Your Honor, I 

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In the Matter of: Liberty Foundation April24, 2014 CCR # 016895-6 Page 121 

1 welcomed to ask another question. 

2 CONTINUING DIRECT EXAMINATION 

3 BY MR. GOLDSTEIN: 

4 Q. Captain Hess, before you flew on the 13th, 

5 well, first of all, did you fly the aircraft on the 

6 13th? 

7 A. Yes. 

8 Q. Before you flew it on the 13th, did you 

9 review any sort of a maintenance discrepancy log? 

10 A. Yes. 

11 Q. Can you describe what that discrepancy form 

12 or log is? 

13 A. In our log book, we keep a sheets or 

14 available to deal with, make any entries as to a 

15 discrepancy that needs to be corrected. And, before 

16 any flight, particularly the first flight of the day, 

17 you review that to make sure that anything that's been 

18 done is signed off correctly and that's what I did. 

19 Q. Had there been, as you recall, had there 

20 been a discrepancy written on that form regarding a 

21 leak? 

22 A. Yes. 

23 Q. Do you know who wrote that? 

24 A. By Rod Schneider, yes. 

25 Q. I'm sorry? 

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In the Matter of: Liberty Foundation April24, 2014 CCR # 016895-6 Page 121 

1 welcomed to ask another question. 

2 CONTINUING DIRECT EXAMINATION 

3 BY MR. GOLDSTEIN: 

4 Q. Captain Hess, before you flew on the 13th, 

5 well, first of all, did you fly the aircraft on the 

6 13th? 

7 A. Yes. 

8 Q. Before you flew it on the 13th, did you 

9 review any sort of a maintenance discrepancy log? 

10 A. Yes. 

11 Q. Can you describe what that discrepancy form 

12 or log is? 

13 A. In our log book, we keep a sheets or 

14 available to deal with, make any entries as to a 

15 discrepancy that needs to be corrected. And, before 

16 any flight, particularly the first flight of the day, 

17 you review that to make sure that anything that's been 

18 done is signed off correctly and that's what I did. 

19 Q. Had there been, as you recall, had there 

20 been a discrepancy written on that form regarding a 

21 leak? 

22 A. Yes. 

23 Q. Do you know who wrote that? 

24 A. By Rod Schneider, yes. 

25 Q. I'm sorry? 

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In the Matter of: Liberty Foundation April 24, 2014 CCR # 016895-6 Page 122 

1 A. By Rod, yes. 

2 Q. He wrote the discrepancy? 

3 A. Mm-hmm (Indicating affirmatively.) 

4 Q. And who wrote the fix to the discrepancy? 

5 A. Rod also did the sign-off. 

6 Q. Based on your experience, not only as an 

7 airline captain but as an A&P mechanic, did, what do 

8 you recall that fix said? That writeup of the fix 

9 said? 

10 MR. STEVENSON: Objection, Your Honor. 

11 I think that the opening to that question of based on 

12 your experience as an A&P mechanic and a pilot, tells 

13 us that we are now asking for some sort of expert 

14 opinion from this witness. 

15 MR. GOLDSTEIN: Well, it's a fact 

16 question. 

17 THE COURT: Well, it's a fact question 

18 combined with a request for an expert opinion attached 

19 so I'll sustain the objection based on the form of the 

20 question. You're welcomed to rephrase the question so 

21 that it's soliciting fact only from this witness. 

22 CONTINUING DIRECT EXAMINATION 

2 3 BY MR. GOLDSTEIN: 

24 Q. What do you recall the writeoff or the sign 

25 off of the discrepancy said, Captain? 

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In the Matter of: Liberty Foundation April 22, 2014 CCR # 016895-4 Page 146 

1 written up by a pilot who found a discrepancy with the 

2 airplane and he would write it up. 

3 A. Yes, sir. 

4 Q. Was there a form that the Foundation 

5 provided for writing up such discrepancies? 

6 A. Yes. 

7 Q. What was that form? 

8 A. I don't recall what it was called, but it 

9 was kept in the flight log and that's where 

10 discrepancies would be noted. 

11 Q. Where was the flight log kept? 

12 A. Right behind the pilot's seat there's a, 

13 there was a compartment there and it was usually kept 

14 there. 

15 Q. And so if there was a discrepancy written up 

16 by a pilot and you as a mechanic saw it and you made a 

17 repair to that discrepancy or, that may not be the 

18 right word repair, but if you resolved that 

19 discrepancy, what would you do with regard to that 

20 form? 

21 A. You would sign it off that it was corrected. 

22 Q. And then that stayed in there. 

23 A. Yes. 

24 Q. Did it ever get transferred back to the 

25 logbooks, the airframe and engine logbooks? 

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In the Matter of: Liberty Foundation April22, 2014 CCR # 016895-4 Page 150 

1 much. 

2 MR. GOLDSTEIN: Thank you, Your Honor. 

3 CONTINUING CROSS EXAMINATION 

4 BY MR. GOLDSTEIN: 

5 Q. Mr. Bourgoine, I'm showing you a copy of 

6 Exhibit R-14 for identification. Is that a copy of 

7 discrepancy forms that you were just referring to? 

8 A. Yes. 

9 MR. GOLDSTEIN: I would move the 

10 admission of R11 14. 

12 MR. STEVENSON: No objection. 

13 THE COURT: Exhibit R-14 is hereby 

14 admitted. 

15 Q. You testified about the repair that was done 

16 to the fuel tank in June of 2011, Mr. Bourgoine? 

17 A. The repair? 

18 Q. Yes. Do you have any information that would 

19 indicate that Mr. Schneider did not complete a 

20 discrepancy form for that repair? 

21 A. I have no information. 

22 Q. You also testified about the logbooks and 

23 that you reviewed the logbooks. I'm not sure when you 

24 did that. Was it when you first became Director of 

25 Maintenance? Or maybe you can tell us when you did 

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B-17 Discrep r l,a.,e of ""--- ---- Corrective Action 

Date: Hobbs: 

Date: Corrected By: 

Cer-tificate #: 

C orrectivc Action 

D11tc: Hobbs: 

Discovert.>d Uy: !)ate: Corrected B)·: 

Ccrt ilicate #: 

C orrectivc . \ction 

Date: Hobbs: 

l)iscovered By: Date: Correctt'd H~: 

Certificate II: 

Corrective .\l'lion 

12 
DECLARATION OF JOHN HESS 

1. My name is John Hess. I reside at 130 Fox Run, Fayetteville, GA. I make 

this Declaration upon my personal knowledge. 

2. an Airline Transport Pilot Certificate and an FAA Airframe and 

Powerplant certificate. I am an airline captain employed by Delta Air Lines 

where I have \lllnr"'""'n for 22 years. I am also a rated Captain on the B-17. 

3. During the weekend of June 11-12, 2011, I was in Aurora, Illinois as a crew 

member on 

4. """"''"'"'''11 N390TH as pilot-in-command on June 13, 2011, and I remained 

with the aircraft after the off-airport landing and observed the fire destroy most of the 

aircraft. following day, June 14, 2011, I personally observed that the number one 

fuel tank was intact and that the repair was completely intact I personally 

observed there was no fuel leaking from the site of the repair. I personally observed the 

wrecker crew significantly destroy the left wing and seriously damage the number one 

fuel tank. I personally observed a person on-site inspecting then rubbing or scraping at 

the repair area. 1 no•·<>nnol observed the salvage crew attempt to break the puter wings 

one fuel tank), by bending the spars with heavy equipment, 

that tank. When this was unsuccessful (the spars would not 

fuel tanks with chains and a steer skid loader (Bobcat) and cut 

off (containing the 

which I observed 

break), they extracted 

the spars. 

5. I declare under the penalty of perjury under the laws of the United States of 

America that the foregoing is true and correct. 

~!..._ 

Executed on this_.;:._.:___ day of June, 2015. 

13 
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1!17 

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In the Matter of: Liberty Foundation April 24, 2014 CCR # 016895-6 Page 159 

1 was to have the tanks, take the liners out of the 

2 tanks and just use the aluminum. Actually, we were 

3 going to build new tanks, to begin with. Take these 

4 tanks out and build brand new ones from scratch. 

5 During that discussion, I know that in talking with 

6 Cullen, we had gotten a gentleman, I believe by the 

7 name of Rocky Howard involved. I never actually met 

8 the man but he, I believe, is an engineering 

9 representative. 

10 Q. A DER? 

11 A. DER, I believe. And we had taken the tanks 

12 out of the airplane. We had removed the liners and 

13 when we did, we discovered that the tanks themselves, 

14 the metal shells, looked to be in excellent condition. 

15 And, I couldn't tell you who it was but somebody 

16 brought up the idea that, why make new ones when we 

17 know these old ones fit the airplane. 

18 Q. And the old ones being? 

19 A. The metal shells that we had taken out. The 

20 tanks that we'd taken out. And, I was not personally 

21 involved in making that decision but it was decided 

22 that yeah, this would be the way to go. It would be 

23 much easier than trying to fabricate new tanks from 

24 scratch, as far as the amount of work involved. And, 

25 the determination was made that these tanks would be 

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In the Matter of: Liberty Foundation April 24, 2014 CCR # 016895-6 Page 160 

1 sui table. 

2 Q. And by these tanks, you mean the aluminum 

3 shells? 

4 A. Yeah, the aluminum shells minus the bladder 

5 liners. So, at that point, the decision was made to go 

6 ahead and do the welding on them to make fuel type. 

7 Q. Was that decision, that is the way to make 

8 the change, was that basically you and Cullen and was 

9 it anyone else or basically you and Cullen? 

10 A. Most of my discussions were with Cullen. 

11 I'm not sure who all he may have talked to during that 

12 same time period. Since we had, we were face to face 

13 most of the time during that, so most of my 

14 discussions were directly with him. 

15 Q. Did you personally consult with any DER's or 

16 DAR's with respect to the fuel tank change project? 

17 A. No, sir. 

18 Q. Do you know a gentleman named Dave Alderman? 

19 A. Yes, I do. 

20 Q. And, do you know a gentleman named Dave 

21 Miller? 

22 A. Yes, I do. 

23 Q. Who are they? 

24 A. They are, well, in the case of Dave Miller, 

25 he's retired now but they are FAA employees who also 

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In the Matter of: Liberty Foundation April 24, 2014 CCR # 016895-6 Page 166 

1 Q. In this process, did you use different 

2 component parts? By that I mean, did you use, well let 

3 me break up. Did you use different fuel lines? 

4 A. We replaced some flexible fuel line with the 

5 same kind of line but brand new so it wouldn't be 

6 deteriorated. 

7 Q. Did they have the same or different capacity 

8 as the fuel lines that you removed? 

9 A. The same. 

10 Q. What about the fuel pumps? 

11 A. Same fuel pumps went back on the tanks. 

12 Q. Were there other components to the fuel 

13 system that were removed and then replaced? Or, I 

14 should say, removed and then reinstalled? 

15 A. All of the originally plumbing was 

16 reinstalled, as far as the hard lines go. We did 

17 replace all the flex lines with new identical flex 

18 line. But, all of the fittings, electrical 

19 connections, plumbing connections were the same. The 

20 same identical ones that were in the airplane or 

21 identical replacements. 

22 Q. By fittings, what do you mean? 

23 A. For instance, the vent line was an AN flare 

24 fitting. The fuel transfer line on the number two main 

25 feeder tank was a barbed fitting with the hose flipped 

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In the Matter of: Liberty Foundation April 24, 2014 CCR # 016895-6 Page 167 

1 over with a clamp on it. We had the same kinds of 

2 fittings back on the tanks as we had before we took 

3 the tanks out. 

4 Q. Were some attach points created where they 

5 were no longer usable from the rubber bladders? 

6 A. Yes. Yeah, there were several of those. 

7 Q. What is an attach point? 

8 A. An attach point, sometimes call it a bung 

9 fitting, it's a, the original bladder had metal 

10 fittings cast or bonded in with the rubber that 

11 another fitting would screw into. And, so we 

12 duplicated that with metal fittings on the tank, on 

13 the tank shell that the same kind of fitting would 

14 screw into so the plumbing wasn't changed from the 

15 point of exit on the tank outwards. 

16 Q. Were these various fitting and attachments 

17 that you put on to the aluminum, now fuel tanks, in 

18 the same exact place as they were when there were 

19 bladder liners within the tanks? 

20 A. Yes. 

21 Q. Or, within the shells? 

22 A. Yes. 

23 Q. Were there sensors in the tanks that would 

24 send information to the cockpit with regard to how 

25 much fuel was in the various tanks? 

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In the Matter of: Liberty Foundation April 24, 2014 CCR # 016895-6 Page 168 

1 A. Yes. Each tank had a level transmitter in 

2 it. 

3 Q. Were they, what was the status of those 

4 devices before and after this project? 

5 A. Before and after, they had the same 

6 functionality. 

7 Q. Did you use the same equipment or did you 

8 

9 A. We used the same. 

10 Q. Same. 

11 A. Same ones. 

12 Q. After the project was completed, was the 

13 fuel system checked? 

14 A. Yes. We did a leak check on each tank. 

15 Q. Were the engines started? 

16 A. Engines were started and run, everything was 

17 pressurized either through the boost pumps or through 

18 engine pumps and we ran all four engines. We checked 

19 everything. 

20 Q. Were the pressure, various pressures, 

21 required pressures, the same after the project as 

22 before? 

23 A. Yes. 

24 Q. Were there vent a fuel flow connections 

25 before, as well as after the project was completed? 

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In the Matter of: Liberty Foundation April 24, 2014 CCR # 016895-6 Page 169 

1 A. Yes. 

2 Q. Were they in the same or different places? 

3 A. They were in the same places. 

4 Q. Was it the same equipment, before and after? 

5 A. Yes. 

6 Q. After the project was completed, what was 

7 different about the fuel system? 

8 A. The tanks were metal shells and they did not 

9 have their bladder in. 

10 Q. Did the rubber bladders have baffles in 

11 them? 

12 A. No. 

13 Q. How do you know that? 

14 A. When we took them out, they readily 

15 collapsed. And, no evidence from what we could see 

16 through the filler necks of any bladders, of any 

17 baffles. 

18 Q. You personally observed that? 

19 A. Yes. 

20 Q. Do I understand your testimony then, Mr. 

21 Schneider, that when you had a question as to the 

22 writeup, you went to FAA inspectors for guidance? 

23 A. Yes, sir. 

24 Q. With respect to the capacity of the tanks, 

25 the fuel tanks. Do you know if there's any difference 

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1 between the capacity of the aluminum tanks as compared 

2 to the bladder tanks? 

3 A. The only difference we found was about a two 

4 or three gallon change on the big tank. 

5 Q. When you say on the big tank, you mean the 

6 four hundred and twenty-five gallon ... 

7 A. The four hundred and twenty-five gallon 

8 tank. 

9 Q. There would have been two of those? 

10 A. Two of those. Number one main and number 

11 four main. 

12 Q. Out of a seventeen hundred gallon system? 

13 A. Yes, roughly. 

14 Q. Based on your experience, consistent to what 

15 the Court is allowing you to testify about, were the 

16 methods, techniques and practices, materials and tools 

17 that were used in the fuel tank project, methods, 

18 techniques, practices, materials and tools that you 

19 had used previously, in your experience? 

20 A. Yes. 

21 Q. And again, consistent with your experience 

22 as Judge Sullivan has allowed you to testify about, 

23 were the techniques, methods, practices, tools and 

24 materials that were used to repair the fuel leak, 

25 consistent with techniques, materials, practices, 

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RESTRICTED 

AN OI-20EG-2 

Section IV 

Paragraph 6 

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M Mf Ul fUMfNT (HMP HfC) 

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f(J f'lt 01 V "l Vf 

VALV( UNOU lOW ,.RfSSUIIIf..R(GULAUNG f£MPf.RAfU'It OH OUHfT 

Figure 198·-0if Temperature Regulator Valve 

flow. If concentrated hydrochloric arid is used, 

it off as soon as pracrical. Test the oil temperature 

lawr again as in paragraph l. 

4. FINAL TREATMENT Afrer fwal test 

and our with hot 

water and then steam for 1/2 hour, allowing 

ondensare to leave from rh<• borwm of dH' regu· 

Thoroughly dry the od cooler by hearing rr in an 

for approximately one hour ar 121-l))°C (2'){). 

F) until all rnoisrure ha~ evaporated and then re· 

II oil remperature regulator. If an oven is not avail· 

or if swrage of the oil coolt•r is desired, perform 

oil treatment ro remove moisrure and grve cor· 

protective oil coating rn accord;rnce wHh fo[-

insrrucr ions: 

a. Immerse rhe oil cooler in a tank of dean, 

neutral lubricaring oil (SAE 20), Federal SpeciliNo. VV-0-496, at approximately I 21 °C (250°F) 

ake rhe oil cooler until all bubbling ceases, indirhar the water has complerely evaporated and the 

ring is complete. 

b. Drain the oil cooler and then either reinthe airplane or place in srock. 

fc) ADJUSTMENTS.-See figure 198. 

(d) ASSEMBLY AND INSTALLATION. -Rethe removal procedure. 

h. FUEL SYSTEM. 

(I) GENERAL.-The file I sy~tem is compost?d of 

four indepcndem fuel supplies, each feeding one engine. Each outboard engine is fed from a ·125 U. S. 

054 Imperial) gallon tank and each inboard engine 

is fed from a 213 U. S. ( 177.4 Imperial) gallon tank 

having in addition a feeder rank of 212 lJ. S. (1766 

Imperial) gallons, making 425 gallons for each engine. B-17G airplanes have a supplemental fuel supply carried in collapsible self-sealing fuel cells installed 

in the wing between the ribs outboard of rhe exist· 

ing main tanks. The installation includes nine cells 

with permanent aromatic resistant liners in each wing, 

providing additional capacity of approximately 1,080 

gallons or an increase of 270 gallons per engine. 

The cells in each wing are divided into rwo groups, each 

of which acrs.as a feeder rank for one of the main ranks. 

The four inboard cells tie inro the feeder tanks through a 

1-1/4-inch inside diameter self-sealing hose and an E-5 

or D-5 valve. This valve is controlled from the rear bulkhead of the bomb bay compartment or the forward 

bulkhead of the radio comparrmenr by a self-contained 

hydraulic sysrem. When the valve is OFF, accidental 

loss of hydraulic fluid or pressure will cause the valve ro 

open, permitting delivery of fuel from the mHer wing 

tanks. The five outboard cells are provided with a similar connection to the engine No. 1 and No. 4 tanks. 

Venting is accomplished by interconnecting the out· 

RESTRICTED 

17 
In the Matter of: Liberty Foundation April24, 2014 CCR # 016895-6 Page 231 

1 suddenly start describing a fuel design system for the 

2 B-17 as a whole, then I think that you may still have 

3 some problems with what's in the record at this point. 

4 MR. GOLDSTEIN: I did ask him about the 

5 function, I said how does it work. But, did ask him, 

6 I didn't ask him about the design in the question. 

7 THE COURT: Okay. 

8 CONTINUING DIRECT EXAMINATION 

9 BY MR. GOLDSTEIN: 

10 Q. So, with the clarification made by Judge 

11 Sullivan, can you tell us what questions you were 

12 asked about the function of the fuel system and how 

13 you answered those questions, as best you can recall. 

14 A. It's been a while with regards to what was 

15 asked but basically what's asked is, of course, 

16 quantity. There's seventeen hundred gallons, 

17 depending on the aircraft. I mean, for the way with 

18 the Liberty Belle, we had six tanks total. We did not 

19 have the Tokyo tanks, which were outboard tanks that 

20 would increase capacity. The, every engine has a 

21 boost pump that is mounted to the bottom of the main 

22 tanks. There's a main tank for number two and number 

23 three and there's a tank that feeds those. And, 

24 there's a main tank for engines one and four. The 

25 boost pumps are operated from the cockpit. We turn 

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In the Matter of: Liberty Foundation April 24, 2014 CCR # 016895-6 Page 232 

1 those on for takeoff and landing and for priming the 

2 engine. The engine driven fuel pump is what maintains 

3 the flow of fuel to the engine during flight. The 

4 boost pumps are, like I said, for, they're for a 

5 backup purpose as well. If the engine driven were to 

6 fail, you could run the boost pumps and there's 

7 basically four hundred and twenty-five gallons total 

8 behind each engine. That's kind of the basics of the 

9 fuel system. 

10 Q. Did you have to know the location of the 

11 fuel tanks? 

12 A. Yes, sir. For fueling purposes and where 

13 they are in relationship inside the wing. 

14 Q. Did you have to know, did you answer 

15 questions about the flow of fuel provided by the fuel 

16 pumps? 

17 A. Yes. With regards to my recollection, the 

18 exact number is not readily off the top of my head. 

19 But there were answers on, questions with regards 

20 mainly to the transfer pump between the sides and how 

21 many gallons per minute that, that would do. I 

22 believe that's thirteen, if I'm correct. 

23 Q. Do you recall any other areas that you were 

24 asked about and would answered on your oral in regard 

25 to the fuel system? 

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In the Matter of: Liberty Foundation April 24, 2014 CCR # 016895-6 Page 241 

1 A. We had discussions, you know, amongst me, 

2 Mr. Schneider, Mr. Fowler and it was in the 

3 organization directly that those are, pretty much, the 

4 three principals. Other than discussions amongst 

5 pilots and other mechanics that are involved in the 

6 organization. 

7 Q. What ultimately was decided? 

8 A. We decided we needed to replace the tanks. 

9 The availability of new bladders or bladders that are 

10 new old stock, which are unusable, knowing that, you 

11 know, in years past B-17's had aluminum tanks in them 

12 as well, you know, we all discussed and wanted to 

13 proceed to see about using the shells that are in the 

14 aircraft for the fuel tanks. 

15 Q. So what did you all do in that regard. 

16 A. In that regard, the first thing we did was, 

17 we started the initiation contact with Mr. Rocky 

18 Howard and Mr. Terry Bowden, who are both, I'm not 

19 sure exactly their designation, DER, DAR, with regards 

20 to what we would like to do and get general 

21 discussions on opinions from them. 

22 Q. Did you personally have conversations with 

23 them? 

24 A. Yes, I did. 

25 Q. Can you describe those conversations, 

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In the Matter of: Liberty Foundation April 24, 2014 CCR # 016895-6 Page 242 

1 please? 

2 A. With Mr. Bowden, he basically initially 

3 wanted a retainer to start, kind of, his process with 

4 regards to evaluating what we were wanting to do for 

5 his time. And with Mr. Rocky Howard, we had worked 

6 with Rocky in the past on other projects and we sent 

7 him the Boeing manufacturing drawings of the shells 

8 and the support systems from the wing structure itself 

9 to have him look and evaluate what we were talking 

10 about doing. 

11 Q. Do you know if a check was also sent to Mr. 

12 Bowden? 

13 A. Mr. Bowden was a check sent, yes, sir, but 

14 not to Mr. Howard. 

15 Q. Do you know how much the check was? 

16 A. I believe Mr. Bowden was $500.00. 

17 Q. So, you were, you all were in conversations 

18 with two DEA, DER's or the DAR's or a combination? 

19 A. Yes. 

20 Q. What resulted as the project went on, what 

21 did you learn from them? Let's talk about Mr. Howard. 

22 A. With what Mr. Howard said what he had, and 

23 this also was culmination with conversations that I 

24 had with David Miller within the FSDO, that back and 

25 forth with Mr. Howard, with him looking at it and 

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In the Matter of: Liberty Foundation April 24, 2014 CCR # 016895-6 Page 242 

1 please? 

2 A. With Mr. Bowden, he basically initially 

3 wanted a retainer to start, kind of, his process with 

4 regards to evaluating what we were wanting to do for 

5 his time. And with Mr. Rocky Howard, we had worked 

6 with Rocky in the past on other projects and we sent 

7 him the Boeing manufacturing drawings of the shells 

8 and the support systems from the wing structure itself 

9 to have him look and evaluate what we were talking 

10 about doing. 

11 Q. Do you know if a check was also sent to Mr. 

12 Bowden? 

13 A. Mr. Bowden was a check sent, yes, sir, but 

14 not to Mr. Howard. 

15 Q. Do you know how much the check was? 

16 A. I believe Mr. Bowden was $500.00. 

17 Q. So, you were, you all were in conversations 

18 with two DEA, DER's or the DAR's or a combination? 

19 A. Yes. 

20 Q. What resulted as the project went on, what 

21 did you learn from them? Let's talk about Mr. Howard. 

22 A. With what Mr. Howard said what he had, and 

23 this also was culmination with conversations that I 

24 had with David Miller within the FSDO, that back and 

25 forth with Mr. Howard, with him looking at it and 

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In the Matter of: Liberty Foundation April 24, 2014 CCR # 016895-6 Page 243 

1 knowing, you know, the B-17's had previous aluminum 

2 fuel tanks and him having the shells in front of him 

3 with what was there, he did not see an issue with 

4 using what we had, as long as we maintained the attach 

5 points. 

6 Q. When you say ... 

7 MR. STEVENSON: Your Honor, I'm going 

8 to move to strike that last answer. There's a certain 

9 amount of this that I think is acceptable as scene 

10 setting but this witness now, on multiple occasions, 

11 testified at length at the supposed opinions of, I 

12 think it was Mr. Howard. Those witnesses are not 

13 here. If the respondent had wanted to call them to 

14 testify about their opinions, they could have done so 

15 and they have not and I do not believe that this level 

16 of testimony is necessary to simply do the appropriate 

17 stage setting. 

18 THE COURT: Mr. Goldstein ... 

19 MR. GOLDSTEIN: I don't understand the 

20 objection. It's hearsay? Hearsay is obviously 

21 allowable. 

22 THE COURT: Your objection is noted and 

23 respectfully overruled. Heresay is specifically 

24 allowable and the FAA benefitted from that rule during 

25 its prima facie case. The respondent has the same 

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In the Matter of: Liberty Foundation April 24, 2014 CCR # 016895-6 Page 246 

1 what you said but, as long as the fittings and 

2 something were the same, he didn't see a problem with 

3 using the aluminum shells. Can you elaborate on that? 

4 A. With our discussions and, you know, the 

5 items that I sent to Mr. Howard, he reviewed those, 

6 over, it was probably a week, week and a half time 

7 period before he got back to me. And, he basically 

8 said that, you know, with what's here, is the B-17 

9 fuel tanks minus the rubber bladders. He did not see 

10 an issue being, that we're not going to war anymore. 

11 We're not needing a self-sealing fuel tank and he 

12 expressed his opinion that he wouldn't have to do 

13 anything with regards to that if everything was 

14 returned to its original mounting positions and 

15 takeoff points. 

16 Q. You had mentioned you'd sent him some 

17 drawings, etcetera. What did you send him? 

18 A. I sent him Boeing prints of the shells and 

19 the Boeing drawings of the attachment structures and 

20 the internal portions of the wing and in the manner 

21 that the tanks are held. 

22 Q. Where did you get these documents? 

23 A. These documents came from the Liberty 

24 Foundation. We have a complete set of manufacturing 

25 prints for B-17's. 

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In the Matter of: Liberty Foundation April23, 2014 CCR # 016895-5 Page 205 

1 slightly different format. Let me just stand over 

2 here if I may, Mr. 

3 THE COURT: Would that be acceptable, 

4 Mr. Stevenson, to share ... 

5 MR. STEVENSON: Yes, Your Honor. 

6 THE COURT: the one document? 

7 Okay. Thank you. 

8 MR. GOLDSTEIN: Ready? 

9 CONTINUING CROSS EXAMINATION 

10 BY MR. GOLDSTEIN: 

11 Q. Beginning at line seventeen. Question. 

12 Okay, what else did you look at it in performing your 

13 review of the case at anytime? Answer. I, I gathered 

14 as much information as I could on the B-17 fuel 

15 system. Question. That's, that's what I'm asking. 

16 What did you look at? Answer. I looked at how the 

17 tank was, how, how the tanks were constructed. Now, I 

18 know in my experience from my, from my experience that 

19 there are three different sets of tanks that can be 

20 used, can be used in the B- 17. The A, Band C models 

21 had metal tanks of much less capacity than the D, Es 

22 and Fs, okay? The D, Es and Fs, the Ds, Es, Fs and Gs 

23 all had bladder tanks, all had the same capacity as 

24 this aircraft. The late model, the very, very late 

25 model Gs reverted back to the metal tanks because they 

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In the Matter of: Liberty Foundation April 23, 2014 CCR # 016895-5 Page 206 

1 were no longer in a, in a position where they had to 

2 worry about Ge~an fighters and flack, so that's why 

3 they got rid of the self-sealing tanks and went back 

4 to a metal tank. Do you recall that? 

5 A. Yes, I do. 

6 MR. STEVENSON: Having had that portion 

7 of the declaration spoken I would like to read into 

8 the record the rest of Inspector Duellman's answer 

9 during that deposition. 

10 THE COURT: You're welcome to do that 

11 during your redirect. 

12 MR. STEVENSON: Okay. 

13 CONTINUING CROSS EXAMINATION 

14 BY MR. GOLDSTEIN: 

15 Q. And you recall when I took your deposition 

16 that you were not aware of the fact that the airplane 

17 had been severely damaged in a tornado? 

18 A. That's correct. You told me that. Or you 

19 provided that information to me. 

20 Q. So my question is do you know for a fact, 

21 not a guess, whether the wings that were on the 

22 airplane that we're talking about in this case were 

23 manufactured in 1945 or 1944 or 1943 or when they were 

2 4 manufactured? 

25 A. No, I can't. 

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In the Matter of: Liberty Foundation April 22, 2014 CCR # 016895-4 Page 162 

1 extremely significant, but the fact that Mr. Schneider 

2 addressed a discrepancy in the discrepancy log and 

3 that's where he signed off for return to service. And 

4 then under section four in talking about how the tanks 

5 were prepared, that they had been removed and that, 

6 and inspected for corrosion and damage. 

7 Q. You already knew they'd been removed though, 

8 right? 

9 A. Yes. They talked about what material was 

10 used. They talk about that they were abrasively 

11 sandblasted or blasted inside and out to remove paint, 

12 surface imperfections to prepare them for welding. It 

13 wasn't significant to me but, you know, they talked 

14 about the fact they used TIG welding which I kind of 

15 suspected but I didn't know that anywhere for sure. 

16 Q. You think TIG welding would be appropriate 

17 for this kind of work? 

18 A. Most likely. I'm not a super experienced 

19 welder, but I often see TIG used in aluminum. I 

20 learned that the welding was done by Cobb Industrial 

21 Fabricators. Before that I had no idea and I think I 

22 had said earlier today I think that was a wise 

23 decision to use a professional welder. I don't know 

24 if they're aircraft certified and if that needs to be 

25 I'm sure. That's all I note on Mr. Schneider's. 

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In the Matter of: Liberty Foundation April24, 2014 CCR # 016895-6 Page 193 

1 no trying to make it fit in there. 

2 Q. Did you work with Mr. Underwood in this, in 

3 the project that your company worked on? 

4 A. Yes. 

5 Q. Was Mr. Underwood there on a regular basis? 

6 A. Yes. 

7 Q. What exactly, did your company do with the 

8 aluminum tanks? 

9 A. We received the tanks, we cleaned the tanks, 

10 made patch plates. We received the fittings that 

11 Cullen provided and then welded all the fittings and 

12 patch plates in place. 

13 Q. Did you personally do the welding? 

14 A. No, I did not. 

15 Q. Did you inspect the welding afterwards? 

16 A. Yes. 

17 Q. Was it done satisfactory to you? 

18 A. Yes. 

19 Q. The persons that did the actual welding, 

20 what kind of experience did they have? 

21 A. They ranged from forty years of experience 

22 to twenty years experience. Three different people. 

23 Q. I want to show you 

24 MR. GOLDSTEIN: May I approach the 

25 witness, Your Honor? 

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U.S. DEPARTMENT Of TRANSPORTATION 

Office of Hearings 

Washington, D. C. 

The Liberty Foundation, Inc. 

FAA DOCKET NO. 2012-0477 

(EIR 2011-GL-03-0070) 

(Civil Penalty Action) 

Hon. J. E. Sullivan, Administrative Law Judge 

DECLARATION OF DAVID WILKINS 

My name is David Wilkins. I am President of Cobb Industrial Fabricators, 1394 

Cobb Industrial Way, Marietta, GA, 30666. I make this Declaration upon my personal 

knowledge. 

Cobb Industrial Fabricators is in the business of sheet metal fabrication of steel 

and aluminum products. We are welders and fabricators of steel, stainless steel and 

aluminum. We have been in this business since 1972. During the Winter of 2011, at the 

request of Cullen Underwood, I participated in the process of welding aluminum fuel tanks 

that had been removed from a 8-17 known as The Liberty Belle - N390TH. My 

participation was direct and personal and included supervising the welding of various 

openings on the aluminum fuel tanks. I was assisted in this process by Mr. Underwood 

wi""o supplied drawings and information from Boeing and by David Owen of my company. 

The aluminum tanks were made of 1100 series aluminum. The old designation is 

25 and the markings from Alcoa were still visible on the inside of the tanks. 

R-Jo 
Each \an~ nad a 'oo\\ed end ca? \nat 'Nas 'He\ded \n ~\ace. E.ach 'Jent and fue\ flow 

connection was welded to the tank using AN bung fittings. The fuel caps, boost pumps, 

and level sensor mounts were copied from the original fittings and welded to the tanks in 

the appropriate, and same locations. All fittings were made from 6061 aluminum and all 

welding was done using the TIG method of welding and the filler rod was 4043. This filler 

rod is what is recommended by all manufacturers for welding these alloys. The welds 

were inspected visually arJd::tt:te t8nks=were fille(j with ft1el to verify any pos8i0fe=feaks. No 

leaks were found. The welding was normal. 

I declare under penalty of pe~ury under the laws of the United States of America 

\na\ \he 'otlaClO\Nl \-a \rue and conect 

Executed on this 271h day of January, 2014 
In the Matter of: Liberty Foundation April 24, 2014 CCR # 016895-6 Page 58 

1 Q. Tell Judge Sullivan please, your current 

2 employment. 

3 A. Current employment is with American Aero 

4 Services in New Smyrna Beach, Florida. 

5 Q. What is the business of American Aero 

6 Services? 

7 A. We are a warbird restoration and maintenance 

8 facility, along with other artifacts. 

9 Q. When you say warbird, what do you mean? 

10 A. Former military aircraft. Our business is 

11 mainly World War II vintage aircraft and Korean 

12 vintage aircraft. 

13 Q. What, first of all, how long have you been 

14 employed by American Aero Services? 

15 A. Twenty-plus years. 

16 Q. And, are you the owner of the business? 

17 A. Yes. 

18 Q. Have you been employed by the business, were 

19 you employed by the business before you were the 

20 owner? 

21 A. Yes. I started employment there with George 

22 Baker, who was the owner at that time, and worked with 

23 him until 1998 when I took the business over. 

24 Q. So, when did you first start working at 

25 American Aero Services for Mr. Baker? 

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In the Matter of: Liberty Foundation April 24, 2014 CCR # 016895-6 Page 59 

1 A. About 1986, '87. 

2 Q. So that's twenty-six or seven years, right? 

3 A. Yes. Yes. 

4 Q. Okay, I'm not doing the math very well but, 

5 okay. So, for that period of time, twenty-six year~ 

6 or so, you've been in the business of restoring and 

7 maintaining World War II warbird and other aircraft? 

8 A. Yes. 

9 Q. What licenses to you hold that are issued by 

10 the FAA? 

11 A. I have an airframe and powerplant license 

12 and an inspection authorization. 

13 Q. What does the inspection authorization allow 

14 you to do? 

15 A. Allows me to perform annual inspections and 

16 sign them off and to go ahead and sign off Form 337's 

17 on behalf of the FAA. 

18 Q. So, you're designated by the FAA to perform 

19 that function? 

20 A. Yes. 

21 Q. And, do you recall with you received you're 

22 a&P Certificate? 

23 A. My A&P, I believe, was probably 1985. 

24 Q. And, when do you recall when you received 

25 your Inspection Authorization? 

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In the Matter of: Liberty Foundation April 24, 2014 CCR # 016895-6 Page 60 

1 A. The Inspection Authorization was 1998. 

2 Q. And, briefly, what is your educational 

3 background? 

4 A. Didn't finish high school but went to 

5 Spartan School of Aeronautics in Tulsa, Oklahoma, 

6 where I got, received my airframe and powerplant 

7 ratings. 

8 Q. When you say you restore warbird aircraft, 

9 what do you mean by that? 

10 A. We have aircraft that customers bring by 

11 that come in on a trailer, they're non-flying. It 

12 might be damaged or have missing parts and we do what 

13 we call a ground-up restoration. Totally disassemble 

14 the aircraft, redo all the systems, bring it up to a 

15 flying aircraft again. 

16 Q. And, does that include aircraft such as 

17 B-17 's? 

18 A. We haven't done a ground-up restoration on a 

19 B-17 but we have maintained two. Annual maintenance 

20 and preventative maintenance. 

21 Q. Sticking with the restoration for a moment, 

22 what kinds of aircraft have you done restorations on? 

23 A. We've restored a Chance Vought Corsair. 

24 Q. And what, I'm going to interrupt you 

25 probably, as you go along. Would you tell the judge 

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In the Matter of: Liberty Foundation April 24, 2014 CCR # 016895-6 Page 62 

1 early Mustang, an extremely rare Mustang. 

2 Q. Did it have radial engines like, and when I 

3 say like or similar to, the kinds of radial engines 

4 that the B-17 has? 

5 A. No, this has a V engine. Like your V-8 

6 engine would be. Instead, it's a V-12. 

7 Q. You mentioned T-28's. What kind of an 

8 aircraft is that? 

9 A. That's a training aircraft used by the Navy 

10 and Air Force, all the way up into the 1980's from the 

11 1950's and that has a radial engine in it. 

12 Q. And, you mentioned T-6's as well. 

13 A. T-6's, again, pre World War II aircraft, 

14 used all the way through World War II, Korea and up in 

15 South Africa until the mid 1980's. 

16 Q. What kind of an engine? 

17 A. Radial engine. 

18 Q. You also mentioned that you maintained 

19 warbird and other aircraft. And when you say 

20 maintained, what do you mean by that? 

21 A. Do their yearly maintenance inspections or 

22 their preventative maintenance, squawks, 

23 discrepancies. 

24 Q. I'm going to try to get a little bit more 

25 detail on that kind of maintenance. First of all, do 

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In the Matter of: Liberty Foundation April 24, 2014 CCR # 016895-6 Page 63 

1 you regularly maintain any B-17 aircraft? 

2 A. Yes. We maintain the Collings Foundation's 

3 B-17 and until the aircraft was sold, we maintained 

4 The Fighter Factory's B-17, which is based out of 

5 Virginia. 

6 Q. And, do you also maintain a B-24 Liberator? 

7 A. We've maintained the B-24, which is the only 

8 one flying in the world, and that's owned by the 

9 Collings Foundation. 

10 Q. And, what kind of an aircraft is a B-24? 

11 A. B-24 is a four engine heavy bomber for World 

12 War II. This particular one is the only one flying. 

13 Q. And it has radial engines as well? 

14 A. Yes. 

15 Q. Any other B, I'm sorry, any other World War 

16 II aircraft that you maintain? 

17 A. B-25, which is a North American medium 

18 bomber from World War II. 

19 Q. Two engines? 

20 A. Two engines. 

21 Q. And, radial engines? 

22 A. Radial engines. 

23 Q. And, I don't know if you mentioned, but the 

24 B-24 has four engines, correct? 

25 A. Yes. 

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In the Matter of: Liberty Foundation April 24, 2014 CCR # 016895-6 Page 68 

1 MR. STEVENSON: I do not have an, I do 

2 not have an objection to that. I don't know that, 

3 that, my understanding of that in it's context does 

4 not add much beyond the general maintenance, but, I do 

5 not have an objection, with the same proviso that 

6 should something out of left field be asked, I would 

7 reserve the right to object to that particular 

8 question as being outside the scope of the established 

9 expertise. 

10 THE COURT: So noted. Mr. Goldstein, 

11 this witness is hereby qualified as an expert in 

12 aviation maintenance and is in B-17 maintenance 

13 expertise. 

14 MR. GOLDSTEIN: And restoration, Your 

15 Honor, as well. 

16 THE COURT: I didn't hear that part but 

17 I'm happy to do that if, is there any objection from 

18 the FAA? 

19 MR. STEVENSON: I don't know that 

20 there's any pertinence to that, but no objection. 

21 THE COURT: There being no objection, 

22 so noted and so ordered. Do you have other questions? 

23 MR. GOLDSTEIN: I have, Your Honor. 

2 4 REDIRECT EXAMINATION 

25 BY MR. GOLDSTEIN: 

COURT 

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In the Matter of: Liberty Foundation April 24, 2014 CCR # 016895-6 Page 81 

1 Q. I think it is, what is the purpose of the 

2 fuel system in a B-17 aircraft? 

3 THE COURT: Thank you. 

4 A. The purpose of a fuel system in a B-17 is to 

5 provide fuel to the engines so the engine can run. 

6 Or, am I missing ... 

7 Q. And, how does it do that? 

8 A. Through tanks, boost pumps, lines. Those 

9 lines eventually run to a engine driven pump which 

10 goes to the carburetor. 

11 Q. And, what you've just described, is that the 

12 basic design of the B-17 fuel system? 

13 MR. STEVENSON: Objection, leading. 

14 THE COURT: Objection is sustained, the 

15 answer is stricken. Do you have another question? 

16 Q. Based on your experience, what is the basic 

17 design then, of the B-17 fuel system? 

18 A. The basic design is a set of tanks in each 

19 wing with each tank having its own boost pump and 

20 individual lines going to each engine. They're engine 

21 driven pumps. Then, the pump line up to the 

22 carburetor which eventually brings the fuel air 

2 3 mixture into the engine. 

24 Q. And in your expert report, you indicated 

25 that you had reviewed, I think, let me just look at 

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In the Matter of: Liberty Foundation April 24, 2014 CCR # 016895-6 Page 86 

1 Q. Based on your twenty-eight years or so of 

2 experience maintaining and restoring warbirds, do you 

3 have an understanding of the term major alteration as 

4 it applies to warbird airplanes? 

5 A. Yes. 

6 Q. And what is your understanding of what a 

7 major alteration is, as it applies to B-17 aircraft? 

8 A. Major alteration would be changing of 

9 control surfaces, changing the gross weight or CG of 

10 the aircraft. 

11 Q. And what about as it might relate to the 

12 fuel system? 

13 A. Major alteration would be changing the flow 

14 of the fuel pump to a lesser or higher value, 

15 rerouting fuel lines. 

16 Q. Anything else that you can think of that 

17 might be considered a ... 

18 A. Putting in extra tanks, extra fuselage 

19 tanks, that's a common practice. 

20 Q. You mentioned, I think you mentioned, did 

21 you say weight or center of gravity in your last 

22 answer? 

23 A. Yes. If it is an alteration that changed 

24 the gross weight or the center of gravity of the 

25 aircraft. 

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In the Matter of: Liberty Foundation April 24, 2014 CCR # 016895-6 Page 98 

1 is. If you were to draw an imaginary line from wing 

2 tip to wing tip, the fuel tanks, the bomb bay, would 

3 be all in that center of gravity. I don't know the 

4 station numbers but it's a very long CG. 

5 Q. And, based on your knowledge and experience 

6 of B-17 aircraft, are you familiar with how the 

7 aircraft were operated in World War II as it might 

8 relate to this large CG envelope? 

9 A. We are, right now as B-17's are operated, we 

10 are well within the CG envelope and well under gross. 

11 We're not carrying twelve fifty caliber machine guns 

12 anymore nor the bullets. These aircraft would leave 

13 with full tanks and ten thousand pounds of bombs and 

14 come back with tanks emptying and no bombs. We don't 

15 carry any of the armor anymore so we're well below 

16 what our gross weight would be and well within our CG 

17 range. 

18 Q. And just as a followup to that, so when they 

19 would come back much lighter, are you saying they 

20 would still be, would they still be within the CG 

21 range? 

22 A. They'd still be within their CG range. 

23 Q. That's all, thank you Mr. Norville. 

24 THE COURT: Thank you, Mr. Goldstein. 

25 Mr. Stevenson, any final recross? 

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In the Matter of: Liberty Foundation April 23, 2014 CCR # 016895-5 Page 99 

1 WITNESS: I thought I'd ask. 

2 THE COURT: Yeah. 

3 Q. Did you prepare the Enforcement 

4 Investigative Report in this case? 

5 A. Yes, sir. 

6 Q. And do you recall that you prepared a 

7 Section C called i terns of proof? 

8 A. Yes, sir. 

9 Q. And do you recall that you made reference 

10 there to 14 CFR Part 43, Appendix A, parentheses 1, 

11 parentheses 1, paren.theses Roman 12? Do you recall 

12 that? 

13 A. Yes. 

14 Q. And do you recall you made no reference to 

15 FAR 1 . 1 in your i terns of proof? 

16 A. I'd have to look at the list. 

17 MR. GOLDSTEIN: May I show, I don't 

18 have an extra copy. May I show this to ... 

19 THE COURT: You're welcome to take, 

20 show it to Mr. Stevenson and then if he has an 

21 objection. Mr. Stevenson, any objection? 

22 MR. STEVENSON: My understanding is' 

23 I'm taking this presentation to the witness as a 

24 refreshing of his recollection? 

25 THE COURT: I have no idea, Mr. 

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In the Matter of: Liberty Foundation April 23, 2014 CCR # 016895-5 Page 100 

1 Stevenson. 

2 MR. STEVENSON: Oh, okay. I'm sorry. 

3 That's what I was ... 

4 THE COURT: Do you have any objection 

5 to the witness being shown this one document that's in 

6 Mr. Goldstein's hand? 

7 MR. STEVENSON: No, Your Honor. 

8 THE COURT: Okay. Mr. Goldstein, 

9 please go ahead. 

10 MR. GOLDSTEIN: Thank you. 

11 THE COURT: I'll note Mr. Goldstein's 

12 handing the witness a document. 

13 CROSS EXAMINATION 

14 BY MR. GOLDSTEIN: 

15 Q. So that is part of the, just leave it there 

16 for a second. That's part of the Enforcement 

17 Investigative Report that you prepared? 

18 A. Yes, sir. 

19 Q. In this case, is that correct? 

20 A. Yes, sir. 

21 Q. And am I not correct that there's no 

22 reference to FAR 1.1 in your items of proof? 

23 A. You are correct. 

24 Q. In the last twenty-five years, sir, have you 

25 performed any maintenance on any B-17 aircraft? 

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In the Matter of: Liberty Foundation April 23, 2014 CCR # 016895-5 Page 129 

1 A. Yes, sir. 

2 Q. And you're familiar with a term center of 

3 gravity envelope . 

4 A. Yes, sir. 

5 Q. What is, for the Judge's benefit and maybe 

6 for mine, what is the center of gravity, what is a 

7 center of gravity envelope? 

8 A. Last word, please? 

9 Q. Yes. Do all aircraft have center of gravity 

10 envelopes? 

11 A. Yes, sir. 

12 Q. Okay. What, for the Judge's benefit and 

13 perhaps for mine, what is a center of gravity 

14 envelope? 

15 A. That would be a loaded configuration for an 

16 aircraft depending on where weight, including persons, 

17 bomb loading air case fuel is placed within the 

18 aircraft where it's been predetermined that the 

19 aircraft will have no unusual flight characteristics. 

20 Q. Well, a center of gravity envelope has a 

21 range, does it not, where even though the center of 

22 gravity moves it's still within the center of gravity 

23 envelope and therefore is legal to fly that airplane 

24 like that? 

25 A. Yes. 

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In the Matter of: Liberty Foundation April 23, 2014 CCR # 016895-5 Page 130 

1 Q. Okay. Do you have any idea what the center 

2 of gravity envelope was for the Liberty Belle? 

3 A. I don't know the numbers. 

4 Q. Okay. Do you know, and I'm asking you 

5 specifically, if you know whether the difference in 

6 fuel capacity, if indeed there was one, of the 

7 aluminum tanks as compared to the bladder tanks 

8 affected the center of gravity such that it would have 

9 made the aircraft outside the center of gravity 

10 envelope? 

11 A. Excuse me. 

12 Q. You're not going to ask'me to repeat that, 

13 are you? 

14 A. Could you repeat that again, please? 

15 Q. You've testified, sir, that airworthiness 

16 might have been affected because there was a different 

17 fuel capacity in the aircraft after the work, the 

18 February work as before the February work. Do you 

19 recall that? 

20 A. Yes, sir. 

21 Q. Okay. You don't know how much that 

22 difference was, do you? 

23 A. No, sir. 

24 Q. Okay. My next question is considering that 

25 you also don't know what the center of gravity 

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In the Matter of: Liberty Foundation April23, 2014 CCR # 016895-5 Page 131 

1 envelope was for the Liberty Belle, can you testify as 

2 a fact that the difference in fuel capacity, which you 

3 haven't identified, affected the center of gravity of 

4 the Liberty Belle such that it would have been outside 

5 the center of gravity envelope? 

6 A. That would have depended on your loading 

7 configuration. 

8 Q. I'm asking you, do you know if ... 

9 A. I don't know because I'm not loading. 

10 Q. Okay. You also testified about the weight 

11 and you said the difference in the fuel weight could 

12 have affected the airworthiness of the Liberty Belle. 

13 Do you recall that? 

14 A. Not the fuel weight I don't believe. 

15 Q. Well, that's what you testified to, sir. 

16 A. I believe it was bladder. 

17 Q. Well, I'm going to ask you the questions 

18 anyway because I have it in my notes. Do you believe 

19 that there was a difference in the weight of the 

20 aircraft based upon the change in the fuel tanks in 

21 February of 2011? 

22 A. Yes, sir. 

23 Q. And that difference would have resulted from 

24 some difference in the fuel capacity of the two tanks, 

25 is that correct? 

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In the Matter of: Liberty Foundation April 22, 2014 CCR # 016895-4 Page 122 

1 THE COURT: Thank you. 

2 MR. STEVENSON: ... quotes, yeah. 

3 CONTINUING DIRECT EXAMINATION 

4 BY MR. STEVENSON: 

5 Q. In your opinion could the alteration of the 

6 fuel system that was performed by the respondent be 

7 completed using only elementary operations and why do 

8 you believe that? 

9 A. I think by in large most aircraft mechanics, 

10 A&P or IA, do not possess the skill to weld something 

11 of that magnitude as already, well. It is my 

12 understanding that a professional shop welded this up 

13 and I think that was a good idea if you're going to do 

14 welding of that magnitude that you use a professional 

15 welder. So it's truly beyond the elemental, 

16 elementary operations that a normal A&P would be 

17 experienced enough to do. 

18 Q. As you addressed in your affidavit there 

19 have been questions raised about whether or not the 

20 alteration performed was a change in the basic design 

21 of the fuel system. In your opinion was this 

22 alteration a change in the basic design of the fuel 

23 system? 

24 A. Yes, it was. 

25 Q. And why do you think it was a change in the 

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In the Matter of: Liberty Foundation April 24, 2014 CCR # 016895-6 Page 196 

1 A. Normal would, we did not have to do any, 

2 what you would call, out of position welding. We 

3 didn't have to, as if we were welding this table 

4 together, we didn't have to get underneath it and try 

5 to weld upside down. We positioned everything 

6 properly to have the optimum position for welding the 

7 parts up. 

8 MR. GOLDSTEIN: I'm going to argue the 

9 introduction to R-1 0. 

10 MR. STEVENSON: With the witness's 

11 correction, no objection, Your Honor. 

12 THE COURT: R-10 as modified by the 

13 witness is hereby admitted. 

14 CONTINUING DIRECT EXAMINATION 

15 BY MR. GOLDSTEIN: 

16 Q. Thank you. Mr. Wilkins, as you understand 

17 these words in your business and in your experience, 

18 was the welding that you performed on these tanks, 

19 simple or difficult, complex or non- complex? 

20 A. Be non-complex. 

21 Q. Simple or difficult? 

22 A. Simple. 

23 Q. Was the, sorry, were the materials that were 

24 used, appropriate for the project? 

25 A. Yes. 

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In the Matter of: Liberty Foundation April 22, 2014 CCR # 016895-4 Page 157 

1 would need some type of engineering to show that 

2 they're appropriate in size, shape and, you know, in 

3 the way they would be welded on. So I disagree that it 

4 can easily be said that they were of equal, of equal 

5 quality. And then number eight says the welding that 

6 was done on the aluminum tanks was not complicated at 

7 all. It was a simple, non-complex job. I disagree 

8 with that. I think it was simple, non-complex job for 

9 a professional welding agency, but it wasn't an 

10 elementary type of operation that normally we can do 

11 or maybe Rod had done. Under number nine it says that 

12 there was no evidence that the repair failed. I just 

13 have no knowledge about that. I don't know what 

14 occurred there so I can't support that or contest it. 

15 Q. You don't disagree with it, you just don't 

16 know. 

17 A. Right. FAA's claim that the repair was 

18 improper because the sealant was packed from the 

19 outside is wrong. Packing the sealant from the outside 

20 was an improvement. Well, I guess that, I can't argue 

21 with that either. And number ten is kind of a general 

22 statement about methods and practices. It, I don't 

23 agree with it because I don't agree with turning that 

24 shell into a tank without having proper engineering 

25 and specifications to work from. But the actual 

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X900. I ('II( i 71 

rc -'-68, Ma,jor Altcr·ations .Joh Aid 

NOTE: Aviation Safety Inspectors (ASil should sec guidance in Figure 4-6X to 

determine when additional coordination with a Designated Engineering 

Representative (DER) or the Aircraft Ccrtilication Office (;\CO) may be 

necessary. 

ll1c fi.1llowing lists indicate which mcthod(s) may be used for approving m<~jor alterations to 

"d and STCd products. These lists arc noL all-inclusive. and each alteration should he 

ted on a cas~.:-by-casc basis. Consult each section that concerns your product. Additionally. 

Is should review current bulletins. /\C.s. etc., l(lr specilic types or installations that have been 

ti!icd as candidat~:s for !idd approval. The legend is as ((1llows: 

hems with the letters STC require an STC. 

hems with the letters EVL may be eligible for approval by means other than an STC. 

'ng on the scope aml complexity nf'the alteration. These items will not autornatically 

Jy !()r a field approval; they require evaluation and review of' guidance to determine i r the 

approval process may be used. 

with the letters ENG may be eligible f(w approval by means other than an STC but 

either DER or ODJ\ approved engineering data or concurrence ti·01n the ACO J<.)r licld 

36 
)18109 

iligure 4-68, Major Alterations Job Aid (Continued) 

proximity warning systems (GPWS). 

night instmment systems (EFIS) (see InFO 08047). 

r:errain Awareness and Warning Systems (TAWS-A) (see InFO 08047). 

l:errain Awareness and Warning Systems (TAWS-B) (see InFO 08047). 

inergency Vision Assurance Systems (EVAS). 

~lob<li positioning system (GPS) or Global Navigation Satellite System ( 

lnFO 0804 7). 

lijj0TE: AS!s should also review current guidance for speciti 

Jeen identified as candidates for field approval. 

Changes that increase the differential pressure limits of an atmosphe 

:ontrol system of aircraft interior compartments. 

8900.1 CHG 71 

STC 

ENG 

Changes in engine and propeller combination (vi ENG 

A.ny alteration that requires flight testing to 

1pplicable to operational flights conducted 

the regulations (not ENG 

91, § 9!.407(b)). 

,i\nti-terrorism countermeasures, i STC 

Airworthiness. 

Changes to landing gear and 

iength, geometry of 

such as internal parts of shock struts, EYL 

systems, or additions. 

drains, or battery vents. (Applicable to EVL 

engine.) 

(LOX) or onboard generating systems. ENG 

auxiliary power unit (APU) ram air, nacelle blowout ENG 

raulic, Pneumatic, and Fuel Lines, or Systems That Affect Their 

InstalJation and Flammability Requirements, such as: 

of hoses and/or hose fittings that may not meet installation requirements, ENG 

flow rate and flanunability requirements. 

to fuel dump valves. EVL 

oil/fuel/hydraulic line materials beyond the scope of AC 43 .13-l, Acceptable EVL 

'"'Tnnn" Techniques, and Practices - Aircraft Inspection and Repair (current edition). 

fi'"-'""""'o'"' to, or addition of, permanent fuel tanks or fuel system components, including EVL 

22 

UNCONTROLLED COPY WHEN DOWNLOADED 

Check with FSlMS to verify current version before using 
8900.1 CHG 71 

4-68, Mnjor Alterations Job Aid (Continued) 

in Fixed Fire Extinguisher or Detector Systems That Affect the System's 

css or Reliability, such as: 

---------------------------------------~-----4 

discharge nozzles, detector units, or fixed fire extinguisher bottles. 

new or di fTcrent detector components. 

ing the amount or changing the type of extinguishing agents. 

ges that include substituting airframe materials that affect structural 

· ng protection, or flight characteristics. 

tions or Repairs That Include: 

EVL 

ENG 

ENG 

of synthetic coatings. ENG 

of new plated coatings. ENG 

uipment relocation. EVL 

medical services, sport parachute ENG 

with a certification basis of 14 CFR parts 27, 29, or the 

ficated maximum weight limits affecting structural, STC 

ities, and so forth (for example, increases in the maximum 

takeoff weight, or landing weight). 

center of gravity range limits (for example, decreasing the STC 

increasing the aft limit). 

that increase the operational limits (maximum speed limits such as Y A, Yr·E, STC 

tmum speed limitations such as stall speed, increases in service ceiling, and so 

Changing primary structures (structures that carry flight, ground, or pressure loads as defined in 

AC 25.571-1 Damage Tolerance and Fatigue Evaluation of Structure) as well as the following 

additional modifications or structural members: 

23 

UNCONTROLLED COPY WHEN DOWNLOADED 

Check with FSIMS to verify current version before using 
8900. 1 CHG 71 

re 4-68, Major Alterations .Job Aid (Continued) 

terrorism countermeasures, including nares. STC 

to Systems, such as: 

n of exterior fuel vents or battery vents. 

I critical access doors, APU ram air. nacelle blowout doors, and fuel 

to Oil, Hydraulic, Pneumatic, and Fuel Lines, or Systems or 

Affect Their Operation or Installation and Flammability 

types of hoses and/or hose fittings that may not meet i ENG 

as those of flow rate and flammability. 

to fuel dump valves. EVL 

EVL 

EVL 

Affect the System's 

ENG 

ENG 

ENG 

materials that affect structural ENG 

of rotorcraft, such as loads, vibration, fatigue, STC 

characteristics of main or tail rotor system, 

veshafts, driveshaft support bearings, and main and 

fication of an existing icing protection system. ENG 

STC 

ng aircraft to an all-cargo or combination configuration. STC 

STC 

support night vision goggle use, or any approvals STC 
8900.1 CHCi 71 

4-68, Major Alterations Job Aid (Continued) 

I or TASs (see InFO 08047). EVL 

STC 

InFO 08047). 

(see InFO 08047). 

(see InFO 08047). 

STC 

EVL 

ASis should also review current guidance for specific types 

fied as candidates for field approval. 

aHeration that requires flight testing to 

to operational flights conducted 

th the regulations (not ENG 

STC 

, such as internal parts of shock struts, ENG 

systems, or additions. 

EVL 

generating systems. ENG 

not meet the installation requirements, ENG 

ENG 
In the Matter of: Liberty Foundation Apri123, 2014 CCR # 016895-5 Page 112 

1 you concluded that the June repair was a major repair? 

2 A. I I d point to paragraph twenty. 

3 Q. Paragraph twenty? 

4 A. Yes, sir. 

5 Q. The job aid that you refer to, Exhibit 23, 

6 C-23 

7 A. Yes, sir. 

8 Q. that is, you described that as something 

9 that's issued to inspectors, FAA inspectors, is that 

10 correct? 

11 A. No, sir. 

12 Q. What is 

13 A. This is available to everybody. 

14 Q. I'm sorry? 

15 A. This is available to everybody. 

16 Q. It's an FAA order. 

17 A. It's an FAA order. 

18 Q. What do you mean it's available to 

19 everybody? 

20 A. Any person can have access to this by going 

21 to FAA. gov. 

22 Q. Is it issued to FAA inspectors? 

23 A. All of our data anymore is online. 

24 Q. Is it issued to FAA inspectors? 

25 A. Yes, sir. Yes. 

County • ~ 

~2~a'lT ~~g~~~~c!~o~?' Inc. 

800.262.8777 TOLL-FREE • 540.667.0600 LOCAL • 540.667.6562 FAX • CountyCourtReporters.com 
In the Matter of: Liberty Foundation April 23, 2014 CCR # 016895-5 Page 113 

1 Q. It is, okay. It's not regulatory, is it? 

2 A. No. 

3 Q. Are you familiar with the history of the 

4 Liberty Belle airplane? 

5 A. Some of it. 

6 Q. What are you familiar with? 

7 A. I know that it was put together, you know, 

8 that there was 

9 Q. It's safe to say every airplane was put 

1 0 together . 

11 A. Yeah, every plane is put together. I know 

12 that it was a modified aircraft based on the 

13 performance document showing that it was a test cell, 

14 you know, it was used for research and development for 

15 a while. I know that it had an extended fuel system 

16 put in it for when the Liberty Foundation went to 

17 Europe with it. I know records from, you know, the 

18 FAA's database in Oklahoma City of like various stages 

19 of the certification and repairs and alterations that 

20 have been done to this aircraft. 

21 Q. Were you aware of the fact the airplane had 

22 been substantially destroyed in a tornado in New 

23 England? 

24 A. Only after the proceedings here today. 

25 Q. Okay. Do you know the extent of that damage 

County • ~ 

~2~a~T ~~g~~~~c!~o~?~ Inc. 

800.262.8777 TOLL-FREE 0 540.667.0600 LOCAL • 540.667.6562 FAX • CountyCourtReporters.com 
Scott Maher 

-""'Jl"''''· Liberty Belle Form 337 

June 5, 2015 at 1:31 PM 

Stuart Goldstein 

Date Signoff 

4/17/2009 Bourgoine/Miller 

2/11/2008 Bourgoine/Fredekind 

7/27/2006 Reilley/Root 

9/8/2005 Electrosonics 

6/13/2005 Reilley /Mosleis 

6/10/2015 Reilley/Mosleis 

4/26/2005 Reilley/Root 

4/26/2005 Reilley/Root 

4/26/2005 Reilley/Root 

4/26/2005 Reilley/Root 

4/26/2005 Reilley/Root 

12/2/2004 Air Associates 

N390TH- Liberty Belle 

Description 

New manufacture tail wheel 

Install ADC oil filters 

Install two place seat in waist section 

Mid-Continent attitude indicator and Sigma-Tek directional gyro 

Install two cockpit seats 

Install three place seat in waist section 

Remove tokyo tanks, rework fuel transfer system. 

Install radio room floor and seats 

Install chip detectors, starter lights 

Recover rudder, elevators, ailerons 

Pre-oil system 

Avionics install 

37