### UNITED STATES DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION WASHINGTON, DC In the Matter of: RUSHMORE HELICOPTERS, INC. FAA OrderNo. 2012-8 DocketNo. CPIOGL0002 FDMS No. FAA-2010-0023 1



### Served: October II, 2012 

### DECISIONAND ORDER2 

### I. Introduction Respondent Rushmore Helicopters, Inc. (Respondent) has appealedthe written initial decision ofAdministrative LawJudge (ALJ) Richard C. Goodwin.3 

### The ALJ found that Respondent violated 14 C.F.R. §§ 91.7(a), whichprohibits operating an unairworthy aircraft, 4 

### and 91.13(a), whichprohibits operating an aircraft carelessly orrecklessly so as to endangerthe life or property ofanother.5 

### The ALJ assessed a civil penalty of$22,500 against Respondent.

1Materials filed in the FAA Hearing Docket (exceptfor materials filed in security cases) are also available for viewing at the following Internet address: www.regulations.gov. 2The Administrator's civilpenalty decisions, d!ong with indexes ofthe decisions, the rules ofpractice, and other information, are available on the Internet at the following address: www.faa.gov/abaut/ajjice _org/headquarters

_afficeslagclpol_adjudication/ AGC400/ Civil_Penalty. In addition, Thomson Reuters/West Publishing publishes Federal Aviation Decisions. Finally, the decisions are available through LEXIS (TRANS library) and WestLaw (FTRAN-FAA database). For additional infonnation, see the Web site. 3 A copy ofthe ALJ's written initial decision is attached.

4 14 C.P.R.§ 91.7(a) provides that, "No person may operate an aircraft unless it is in an airworthy condition."
5 14 C.P.R.§ 91.13(a) provides that, "No person may operate an aircraft in a careless or reckless manner so as to endangerthe life or property ofanother." I

### This decision denies Respondent's appeal and affirms the ALJ's assessment ofa $22,500 civil penalty. 

### II. Background Respondent is a commercial air tour operator in Keystone, South Dakota and operate$ under 14 C.P.R. Part 91. (Tr. 18-19.) On August 6, 2009, Robert Leffert, a pilot employedbyRespondent, lostthe fuel cap while refueling one ofRespondent's helicopters, a Bell206Jet Ranger, with registrationnumberN2268W ("68 Whiskey"). (Tr. 70.) Leffert searched for the fuel cap without success, and finally placed ducttape

overthe fuel filler port. (Tr. 71-73.) The nextmorning, on August 7, 2009, Respondent's owner and president, Michael Jacob, along with several ofhis pilots, discussed the missing fuel cap with Leffert. They concludedthat it was safe to use the duct tape temporarily to coverthe port becausethe fuel cap was not a structural component ofthe helicopter and the fuel loads

were low. (Tr. 73-74.) Atthis meeting, Jacob stated that another fuel caphadbeen ordered and was on its way. (Tr. 74.) That same morning, Jacob had a telephone conversationwith a design engineer at Bell Helicopters named Daniel Bias, who saidthat the fuel cap prevents fuel contamination and spillage in case ofa dynamic rollover. (!d.) 

### Bias toldJacob thatthe missing fuel cap was not a safety issue and that he would send a letter of"non-objection." (Tr. 119.) Jacob told his chiefpilot, Roger Dubbs, and Leffert about the conversation. (Id) 

### The three decidedthatthe missing fuel cap was not an airworthiness issue. (Id) 

### Also on August 7, 2009, FAA Safety Inspectors Gary Kwasniewski and BarryDunmire went to Keystone to investigate a complaintfrom a member ofthe public

2about an aircraft with duct tape over a fuel port. (Tr. 19-20.) Whenthey arrived, they

sawN2268W. (Tr. 22-23.) According to the inspectors, they metthe pilot, Robert Leffert, and asked him ifthe helicopterhad any airworthiness issues.6 (Tr. 23-24, 110.) He said

no. (Tr. 24.) Leffertrepositioned the helicopter to a padthatwas farthest from the office, and aboutthattime, Inspector Kwasniewski noticedthatthere was ducttape overthe filler port. (Tr. 25.) The helicopter was about to take offandthe inspector did notthinkit would be safe to run to try to stop it. (Tr. 26.) While waiting for the helicopterto return, Inspector Kwasniewski asked a member ofRespondent's ground crew, Mariah Weller, for the day's flight schedule, and she gave itto him. (Tr. 29; AgencyExhibit4.) He sawherremove the record from a binder. She then made a copy and handed itto him. (Tr. 66-67.) Afterthe inspectors left, theyrealized thatthis schedule was marked "August 6, 2009." (Tr. 36.) ButInspector Kwasniewski testified thathe believedthe schedule was actually for August 7, 2009, because: 

### (I) Wellertoldhimthat Respondent takes all previous schedulesto a sister company in Custer, South Dakota; (2) it was the oruy schedule that Weller had for that day; and (3) Weller handedit to him onAugust 7 and saiditwas for that day. (Tr. 37.) The schedule that Weller handed him showed thatN2268Whad flown 10 flights, carrying a total of27passengers, that day. (Tr. 40, 66.) Leffert returned a short time later inN2268W. 

### (!d.) He let the passengers out and thenrepositioned his helicopter so that it was atthe far end ofRespondent's location, towardsthe hangar. (Tr. 27.) Thetwo inspectors approached Leffert. 

### (!d.) When

6 Lefferttestified thatthe inspectors asked him whetherthe helicopter had any maintenance issues. The ALJ accepted Leffert's version, which was that he was asked whether the helicopterhad any maintenance, as opposed to airworthiness, issues. (Initial Decision at 8 n.6.) 3

### Inspector Kwasniewski asked about the situation, Leffert admitted that he had lost the fuel cap the day before and had covered the fuel filler port with ducttape, but, he said, the helicopterwas airworthy. (Tr. 27-28.) Leffert also said thathe had not been able to ask any maintenance personnel aboutthe matter. (Tr. 28.) Inspector Kwasniewski recommended that Rushmore not fly the helicopter until it determined the helicopter's airworthiness and warned that anyflights might constitute violations ofthe regulations. (I

d) 

### That same day, the inspectors went to Custer, South Dakota, to speak with Michael Jacob, Respondent's owner andpresident. (Tr. 33.) The inspectors noticed that N2268W was in Custer, South Dakota. They told Jacob thatthey were disappointed that thehelicopterhad flown there, given that theyhad warned Leffert about flying without determining N2268W's airworthiness. (Tr. 44.) The inspectors obtained a copy ofthe August 6, 2009, flight log while at Custer.' (Tr. 3:3-35; Agency Exhibit 3.) Lefferttestified thatwhenhe saw the inspectors at Keystone, the fuel cap had not

even enteredhis mind. (Tr. 74.) He stated he thought itwas aroutine ramp check. (Jd) 

### He testified thathe went over and asked them ifhe couldhelp them. (Id.) 

### They told him to fly his waiting load ofpassengers and they would talk to him when hereturned. (Tr. 75.) Whenhe did so, they came outto the helicopter and toldhim he was in violation of Section 91.7(a) and they were grounding him. (Tr. 75-76.) Regarding the number of flights on August 7, 2009, with duct tape overthe fuel port, he testified, "According to the records, there was [sic] about ten flights. I don't remember doing that many, butthat was, apparently, the case." (Tr. 77.)

7

### This flight log reflected a different series offlights than the flight log obtained from Weller. 4,

### FAAInspectorJames BadHorse, Respondent's Principal Maintenance Inspector (PM!), testified that he wentto speakto Leffert onAugust 11, 2009, and found that Leffert had left the area. (Tr. 93.) He then spoke to Respondent's owner and president, Michael Jacob. (Jd.) 

### At first, Jacob said he was unaware ofthe fuel cap occurrence. (Tr. 94.) Buthe subsequentlytold the inspectors that the aircrafthad flown a number of flights that day and that he had ordered a fuel cap. (Tr. 95.) Inspector BadHorse testified thatN2268Wdid notmeetits type design ortype certificate whenRespondent operated it with duct tape over the fuel filler port. He explainedthat ifa helicopter went down and rolled over on its side, the fuel cap would prevent any fuel spillage andwould reduce the risk ofthe aircraft catching fire. (Tr. 96.) According to BadHorse, the aircraft is not airworthy withoutthe fuel cap. (!d.) 

### The fuel cap, he explained, also prevents contaminants from enteringthe fuel. (Tr. 98.) Ifthe duct tape was not completely secured, he said, the rotorwash, whichincludes dust anddebris, could get into the fuel cell. (Tr. 98.) BadHorse testified that operating withthe tank only

one quarter full would not make a difference. The helicopter still would not meetits type design orcomplywith its type certificate. (Tr. 98-99.) Ifthere was an engine flame-out, shut down, or emergency, andthe pilothad to set it down and the aircraft rolled over, he stated, thenfuel would come out ofthe port and with a hot engine, a fire couldresult. (Tr. 105.) InspectorBadHorse also testifiedthat Respondent had been very helpful to him

overthe preceding 3 years, giving him whatever informationhe had requested. (Tr. 1 00.) He had not found that Respondent intentionally tried to cut corners. (Tr. 101.)

5

### Atthe hearing, Jacob testified that Leffert, as pilotin command, was responsible for determining that the aircraft was safeto fly. He admitted that there were errors in judgmentmade on all their parts. (!d.) 

### He testified that he did notreceive a letter ofnonobjectionfrom Bias, and that the engineer latertoldhim that his supervisors would not permithim to provide any written documentationbecause it could establish a legal precedent. (Tr. 120.) 

### III. ALJ's Decision The ALJ found that Complainantproved each ofthe alleged violations. He wrote that Respondent admitted the facts, and that the evidence showed that Respondent violated Section 91.7(a) (operating an unairworthy aircraft) becausethehelicopter was not airworthy under eitherprong ofthe airworthiness test. Regarding the first prong, the ALJ wrote that the helicopter failed to conform to its type certificate due to the ducttape coveringthe fuel filler port. Regardingthe second prong, the ALJ wrote that the duct tape endangeredthe passengers and crewbecause ofthe risk offire and fuel depletion. The ALJ also found that Respondent violated Section 91.13(a) (operating carelessly) because oftherisk offuel contamination and fire. Herejected Respondent's argumentthatthe violation ofSection 91.13(a) should be treated as merely aresidual violation. Respondent argued that the pilot should be held solely responsible for the violations, butthe ALJ pointed out thatRespondent's owner and president knew on the morning ofAugust 7, 2009, that the helicopterhad duct tape coveringthe fuel filler port buthe still allowed the helicopter to operate. In addition, the ALJ wrote, air carriers are responsible for violations committedby an employee acting withinthe scope ofhis orher



### 6

### employment for that air carrier. Regarding the civil penalty, Complainanthad sought $25,000, butthe ALI assessed $22,500 instead. The ALIwrote thatunder the FAA's sanction guidance, operation ofan unairworthy aircraft warrants a civil penalty in the moderate to maximum range.8 

### He noted that the sanction guidance table lists the following civil penaltyranges perviolation for small businesses like Respondent: moderate, $2,200 to $4,399; and maximum, $4,400 to $11,000.9 

### The ALIwrote thatthis equates to between $22,000 and $110,000 for 10 flights. Complainant asked for $2,500 perflight, or $25,000 total. The ALI found, however, that $22,500 was appropriate. He wrote thatRespondent's helicopterwas flown when it was not airworthy onten occasions, placing the passengers at risk. The ALI rejected Respondent's contention that it did notintendto bypass any requirement, given that pilot Leffert was coy in his dealings with the inspectors, which the ALI held was an aggravating circumstance. The ALI did, however, permit some mitigation due to the fact thatJacob relied on an opinionfrom a Bell technician, although he noted that the opinionwas entitledto less weightbecause it was hearsay. The ALI concluded that the sanction amount of$22,500 took into accountthe totality ofthe circumstances ofthis case, was suitably substantial, was withinthe range given inthe sanction guidance, and would have sufficient deterrent effect. IV. Analysis Onappeal, Respondent argues that the sanction is too high. According to Respondent:

8 Agency Exhibit 6, FAA OrderNo. 2150.38, Appendix 8, Part II, Fig. 8-3-a(5) at 8-20 (October 1, 2007).
9 AgencyExhibit 6, FAA OrderNo. 2150.38, Appendix 8,Part I,§ 3c(7) at 8-6 (October 1, 2007). 

### 71. There was only one flight onAugust 7, 2009, ratherthanten, as the ALI found; 2. Respondent did not commit an independent violation ofSection 91.13(a); and 3. The ALI shouldhave considered Respondent's financial hardship. Respondent asks for a remand so thatthe ALImay reconsider the penalty. A. Numberofflights Respondent argues thatthe ALI erredinfinding thatthere were 10 flights with duct tape coveringthe fuel filler port. (Appeal Briefat 3.) The ALI appears to have assessed a civil penalty of$2,250 for each of 10 flights, for a total of$22,500. (Initial Decision at 7.) Complainant introduced a flight log- AgencyExhibit4- showingthat Respondent had made 10 flights inN2268W,butthatJog is dated August 6, 2009, rather thanAugust 7, 2009, the date ofthe alleged violations. Complainant contendsthatthe log

was simply misdated and was actually the logfor August 7, 2009. Respondent argues that the only evidence introducedby Complainant showing that it had the correct flight Jog was hearsay- specifically, FAA Inspector Kwasniewski's ' testimony thatwhen Weller, a member ofRespondent's ground crew, gave himthe log dated August 6, 2009, she stated thatit was for August 7, 2009, and that the previous days' records were kept at a different location. Respondent argues that Complainant shouldhave called Wellerto testify becauseFAAguidance states: "FAAinvestigative personnel should obtaindirect evidence ifit is available

...." FAA OrderNo. 2150.3B,**~** lO.b (October J, 2007). Therecord does notreflect whether Weller was available. Respondent also takes issue withthe ALJ's statementthat "Rushmore witnesses each acknowledge thatthe Bell 206 helicopter

... had operated ten flights

...." (Initial

8

### Decision at 5.) Respondent is correct that Rushmore owner and presidentJacob was the onlywitness for Respondent and did nottestify about whetherthe log was for August 7, 2009, butthis was harmless error. As discussed below, there was still sufficient evidence thatthere were 10 flights. Respondent argues that Leffert, who was called by Complainant, did not acknowledge that he flew 10 flights in the Bell206helicopter on August 7, 2009. Leffert testified thatthe records showed about I

### 0 flights eventhough he did not rememberthat many. Specifically, hetestified, "Accordingto the records, there was [sic] about 10 flights. I 

### don'tremember doing that many, butthat was, apparently, the case." (Tr. 76- 77.) Respondent asserts that there was proofofonly one flight on August 7, 2009- the air tour flight witnessedby the inspectors. Therefore, according to Respondent, the civil penalty mustbe reduced to reflect onlyone violation. The standard ofproofin FAA civil penalty cases is as follows: The administrative lawjudge shall issue an initial decision or rule in a party's favor only ifthe decision orruling is supportedby, and in accordance with, the reliable, probative, and substantial evidence contained in the record. 14 C.F.R. 

### § 13.233. Hearsay is admissible, although it is entitledto lesser weight than direct evidence. 

### Ratner, FAA Order 2009-2 (January 12, 2009), quoting 14 C.F.R. 

### § 13.222(c) ("[t]he fact that evidence submitted by a partyis hearsay goes only to the weight ofthe evidence and does not affect its admissibility"). Particularly wherehearsay is consistent with other evidence, it has beenheld worthy ofconsideration. 

### TWA, FAA OrderNo. 1998-11 n.18 (June 16, 1998).



### 9

### There is sufficient evidence to support Weller's out-of-court statementthatthe flight log was for the August 7, 2009, flights. Inspector Kwasniewski testified that he asked for the flight logfor August 7. He sawWellerrespond byremoving the flight log from the folder and making a copy. Hetestifiedthat she handed that copy to the inspectors. (Tr. 66-67; Agency Exhibit4.) Weller contemporaneouslytoldthe inspector that it was the record for that day, August 7, 2009, and that the previous days' records

were kept at a different location. (Tr. 37, 66.) The inspector did indeed obtain a copy of the previous day's record, another flight log page dated August 6, 2009, atthe other location. (Tr. 33; Agency Exhibit 3.) Complainant is correct that once it produced evidence thatthere were I0 flights, the burden ofproduction shiftedto Respondent, but Respondent failed to carry this burden. Further, Respondent neither objectedto the admission ofthe flight log that Weller gave the inspectors nor did it introduce evidence to showthat fewer flights were conducted that day. Thepreponderance ofthe reliable, substantial, andprobative evidence showed that the flight logthat Weller gave the inspector, showing 10 flights, was for August 7, 2009. The ALJ did not err in finding that there were I0 flights without a fuel cap and with duct tape coveringthe fuel filler port.

10

### B. Separate Violation ofSection 91.13(a) On appeal, Respondent asserts that Complainantfailed to prove aviolation of Section 91.13(a) (operating carelessly so as to endanger another's life orproperty) that

was separate and independentfrom Section 91.7(a) (operating an unairworthy aircraft). (Appeal Briefat 7.) The ALJ stated that: Respondent endangered life and propertyto an unacceptable degree. Its actions risked fuel contamination and created an intolerable risk offire. Complainantthus proved a violation of§ 91.13(a) as well [as§ 91.7(a)]. I reject Respondent's counterthat§ 91.13(a) shouldbe treated merely as a residual violation. (Initial Decision at 5; citations omitted.) Section 91.7(a) provides that, "No personmay operate an aircraft unless it is in an airworthy condition." TheAdministratorhas held that: To be airworthy, an aircraft must: (1) conformto its type design approved under a type certificate or supplemental type certificate and to applicable airworthiness directives; and (2) be in a condition for safe operation. 

### Whitley, FAA OrderNo. 2009-4 at 12 (January 14, 2009), quoting 

### Kilrain, FAA Order No. 1996-18 at 10 (May 3, 1996),

### petitionfor reconsideration denied, FAA OrderNo. 1996-23 (August 13, 

### l996),petitionfor review denied, Kilrain v. FAA, No. 96-3587 (3'd Cir. May 1, 1997). Bothrequirements ofthis test mustbe met for an aircraft to be airworthy. 

### !d. Airworthiness means more thanthat an aircraft canbe flown. 

### !d., citing 

### Copseyv. NTSB, 993 F.2d 736, 739 

### (lOth Cir. 1993); 

### USAir, FAA OrderNo. 1996-25 at 13 (August 12, 1996). Complainantelicitedtestimony from its inspectors thatthe fuel cap is an essential part ofthe helicopter's drawings, which are part ofthe type certificate data sheet. (Tr. 45-46.) Thus, with the fuel cap missing and duct tape covering the filler port,

11

### the aircraft failed to meetits type design and was not in condition for safe operation. (Tr. 45-46, 49-50.) As for Section91.13(a), it provides that, "No person may operate an aircraft in a careless or reckless manner so as to endangerthe life orproperty ofanother." Regarding Section 91.13(a) as aresidual violation, the National Transportation Safety Board (NTSB) has explainedthat: A residual violation is one that flows solely from arespondent's violation ofanother, independent regulation. A residual violation has no effect on sanction

....[T)he finding ofa violation ofan operational provision

...,without more, is sufficient to support a finding ofa "residual" or "derivative" Section 91.13(a) violation. 

### FAA v. 

### Richard, NTSB OrderNo. EA-4223, 1994 WL393358 at *6 n.17 (July 22, 1994). TheNTSB has further stated that an independent violation ofSection 91.13(a) requires a higher threshold ofevidence. 

### FAA 

### v. Hollabaugh, NTSB OrderNo. EA-5609, 2011 WL 7025300 at *3 (December 21, 2011). (!d. 

### at 3.) TheNTSB requires "proofofan unacceptably high likelihood ofpotential harm or clearly deficientjudgment

... to establish an independent violation ofSection

## 91.1~(a)." FAA v. 

### Richard, NTSB Order No. EA-4223, 1994 WL393358 at *6 (July 22, 1994). The Administratoris notrequired to followNTSB case lawin this forum, butmay do so ifitis persuasive. 

### Richardson & 

### Shimp, FAA 

### Order 1992-49 at 9

### n.l3 (July 22, 1992). It

### is not necessary to decide whether the violation ofSection 91.13(a) was an independent or residual violationbecause the ALI does not appearto have assessed a higher civil penalty on the grounds that the violation was independent. The sanctionhe assessed was near the bottom ofthe range and was appropriate even for a residual violation.

12C. Financial Hardship Respondent did notraise the issue offinancial hardship during the proceedings below. On appeal, Respondent argues thatit was Complainant's burdento produce evidencethatRespondent was able to paythe penalty and continue inbusiness despite the penalty. (Appeal Briefat 6.) Respondent notes that Complainantdid not ask a single question about financial hardship atthe hearing, eventhough Respondentbelievesthat its 

### prose status should have been "atleast a slightindication that money was an issue." 

### (I d.) Respondent also points outthat inhis decision, the ALJ did not considerRespondent's ability to paythe penalty or the penalty's effect onRespondent's ability to continue in business. (Jd.) Forthese reasons, Respondent asks for a remandto considerthe issue of financial hardship, which it states has onlyincreased since the hearing. 

### (I d. at 7.) Respondenthas attached to its appeal briefwhat it terms new evidence in the form oftwo affidavits and a profit-and-loss statement. Respondent argues that these documents shouldbe consideredunderthe standard in 14 C.P.R. 

### § 13.234(c)(2) (emphasis added), whichprovides as follows: Ifthepetition is based, in whole or inpart, onnewmaterial notpreviously raised inthe proceedings, the party shall set forth the new material and include affidavits ofprospective witnesses and authenticated documents that wouldbe introduced in support ofthe newmaterial. 

### Thepartyshall explain, in detail, why the new materialwas notdiscoveredthrough due diligenceprior to the hearing. Respondentis correctthat although Section 13.234(c)(2) applies to petitions for reconsideration, it should also be applied here; the Administratorheld in aprevious case that 

### itwas reasonable to applythe standardinthis provisionto all post-hearingrequests to submit newevidence. 

### Blue RidgeAirlines, FAA Order No. 1999-15 at 7-8 n.6 (December 22, 1999).

13

### Respondent is correct that among the variqus factors to considerin determining an appropriate civil penalty are the respondent's abilityto paythe civil penalty and the effect

on the respondent's ability to stay in business. 

### Folsom'sAirService, Inc., FAA Order No. 2008-11 at 11 (November 6, 2008). However, financial hardship is an affirmative defense that a respondent has the burden ofproving, because its financial records are within its sole control.

### Atlas Frontiers, LLC, FAA OrderNo. 2010-10, 2010 WL 

### 7940346 at *6 (June 16, 2010). It was not Complainant's burden to produce evidence showing Respondent's ability to pay. Respondent asks for leniency, pointing outthat it was

### prose atthe hearing, having beenrepresented by its owner andpresident. 

### Prose respondents, however, are not

l 

### exemptfrom the procedural rules governing civilpenaltyproceedings. 

### GlobalPeace Initiative, Inc. (GPI), FAA OrderNo. 2008-8 at 6 (August 21, 2008), citing 

### Conquest Helicopters, Inc., FAA OrderNo. 1995-25 at 6 n.6 (December 19, 1995). Underthe Rules ofPractice, a respondent has the burden ofasserting and proving an affirmative defense like financial hardship. (See 

### 14 CFR 13.224(c) "[a] party who has asserted an affirmative defensehas theburden ofproving the affirmative defense"). 

### GPJstated that the "latitude traditionally afforded

### proserespondents [was]justifiablynarrower whenthe respondent [was] the corporate owner ofa Boeing 747 aircraft." 

### GPI, FAA Order No. 2008-8 at 6. The latitude is also narrower when, as inthe instant case, the respondent is a commercial air tour operator. Respondent's

### prose status atthe hearing does not alter the fact that by failing to raise financial hardship atthe hearing, Respondent failed to preserve it for appeal. 

### NorthwestAircraft Rental, Inc., FAA OrderNo. 1994-4 at 8 (March 10, 1994).

14The affidavits and profit-and-loss statementthat Respondent has attachedto its appeal briefconstitute newmaterial, having not been submittedbefore the appeal. Respondent, however, knew about any financial hardship and most ofthe supporting informationbeforethe hearing on April27, 2011.

### See, e.g., Jacob**Affidavit,~~** 4, 8, 9. Respondent has notprovided a satisfactory explanation for whyit did notpresentthis claim and information at the hearing. Further, "[i]tis too late to submit

... documents on appeal whentheir significance cannot be clarifiedthrough cross-examination." 

### Tabula, FAA OrderNo. 2010-6 at 13 (June 15, 2010). For all these reasons, this case will notbe remandedto the ALJ for further proceedings. Respondenthas already had its day in court. 

### Blue RidgeAirlines, FAA OrderNo. 1999-15 at 7 n.6 (December

### 22, 1999). Respondent's appeal is denied. 10 This decision affirms the $22,500 civil penalty assessed bythe ALJ_II

Federal AviationAdministration

10 Any arguments not specifically discussed have been considered and found unworthy of discussion.
11 This order shall be considered an order assessing civil penalty unless Respondent files a petition for review within 60 days ofservice ofthis decision with the U.S. Court ofAppeals for the District ofColumbia Circuit orthe U.S. court ofappeals for the circuit in which Respondent resides or has its principal place ofbusiness. 14 C.P.R.§§ 13.16(d)(4), 13.233Q)(2), 13.235 (2009). See 71 Fed. Reg. 70460 (December 5, 2006) (regarding petitions for review affinal agency decisions in civil penalty cases). 15' 

# . '4 t ' / SE!WED OCTOBER 3, 2011

.' . 

### UNITED STATES DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, D.C.

FEDERAL AVIATION ADMINISTRATION, ) ) ) .r= co Complainant, ) FAA DOCKET NO. CP10GL0002 

### v. RUSHMORE HELICOPTERS, INC. Respondent. ) ) ) ) ) ) ) (Civil Penalty Action)

OMS No•FAA-20.10-0023**~·.**
INITIAL DECISION OF ADMINISTRATIVE LAWJUDGE RICHARD C. GOODWIN Found: I) Respondent violated 14 CFR §§91.7(11) and 91.13(a)**a~** charged; and 2) Respondent is herebyassessed a civil penalty of$22,500. I. Background Respondent Rushmore Helicopters, Inc. ("Respondent" or "Rushmore"), is a Part 91 commercial airtour operator located in Keystone, SD (Tr. 18-19). One of its pilots, Robert L. "Lee" Leffert, discovered in the late afternoon ofAugust 6, 2009, that the fuel cap for.·the Bell206 helicopter he had been operating was not in place. After he tried and failed to locate it, he placed ducttape over the fuel filler port. The Complaint ofthe Federal Aviation Administration ("Complainant," "FAA," or "the agency"), as amended, asserts that Respondent violated Federal Aviation Regulations ("FARs") when Mr. Leffert operated ten passenger-carrying airtourflights on August 7, 2009, in this condition. -**-=-~-** Complainant charges that Respondent violated the following FARs (both in 14 CFR): section 91.7(a), which prohibits the operation ofa civil aircraft unless it is in an airworthy condition; and section 91.1**~(a),** which prohibits a person from operating an aircraft in a careless manner so as to endanger life and property. The agency seeks a civil penalty of $25,000. Respondent, which appeared through its president and owner, Michael Jacob ("Mr. Jacob"), acknowledged the facts underlying the allegations (Tr. 41, 

# --2 117-18). Lee Leffert, the pilot, conceded that, on August 6, 2009, once he realized that the fuel cap had been misplaced and that an adequate replacement was unavailable, he placed ducttape over the,fuel port. He flew the aircraft the next day, August 7. in that condition (Tr. 70-73). Mr. Jacob testified that he

. learned ofthe situation on the morning ofAugust 71 h , before any flights took off. He permitted the helicopter to be flown in that condition (Tr. 42, 44, 118, 120; 

### see also Resp. Br., p. 1). Respondent denied liability, however (Resp. Br., pp. 1, 9). A hearing was held on April27, 2011, in Rapid City, SO. I determined that a written decision was reasonable and appropriate under the circumstances (Tr. 122). The parties have filed briefs and the matter now is ready for decision. I hold that the facts and circumstances ofthis casejustify findings of violations ofeach count and, allowing for mitigating and aggravating factors, warrant an assessment against Respondent of $22,500. II. The Proceeding**A~** The Evidence Aviation safety inspectors Gary Kwasniewski and Barry Dunmire of FAA's Flight Standards District Office ("FSOO") in Rapid City, SO looked into the matter. _Each testified atthe hearing. James Bad Horse, Rushmore's principal maintenance inspector ("PMI"), also testified. On August 7, 2009, inspector Kwasniewski stated, he learned of a complaint that Rushmore had placed duct tape over the fuel filler port on one its helicopters. He and inspector Dunmire traveled to Respondent's facility in Keystone, SO, and talked to a pilot, Mr. Leffert. A helicopter Leffert had been · operating had just landed and its engine was running. The inspectors did notyet know ifthis was the relicopter implicated by the complaint they had received. They could not see tne·tuel port. Kwasniewski·asked Leffert if his helicopter had any maintenance issues. Leffert replied in the negative (Tr. 113). Inspector Kwasniewski testified that he did not have any reason to doubtthe pilot's · response. As inspector Dunmire explained, "Wetake the pilot's word for it." 

### (fr. 113). But this in tactwas the helicopter in question. Leffert did not volunteer to ----.the inspectors that.ducNape was covering the fuel cap (Tr. 75, 84). "They didn't -...--...., ask, anaTaidn't say," he testified (Tr. 86). Leffert also seemed to be in a hurry. He said that he had passengers waiting. Kwasniewski and Dunmire allowed him to continue (Tr. 21-26, 61, 110- 15). According to Leffert, the inspectors told him to fly the aircraft and said that they would talk after he returned (Tr. 75). , _: Momentarily, and before Mr. Leffert took offwith his passengers, inspector Kwasniewski noticed that Leffert had repositioned the helicopter to another pad.3 Passengers were loading. The inspectors now could see the fuel port, and duct tape appeared to be covering it (Agency Exhs. 1 and 2; Tr. 31-32). So this was the helicopter in question. It had the registration number 2268W (referred to as "68 Whiskey"). The aircraft now began to take off. Inspectors Kwasniewski and Dunmire agreed that it was not safe to approach. They let it go (Tr. 25-26, 59, 67, 112). Mr. Leffert returned a short time later. When inspector Kwasniewski - now aw<ilre ofthe ducttape covering the fuel port- asked the pilot to explain, Leffert stated that he had discovered that the helicopter's fuel cap was missing shortly before 4 o'clock in the afternoon on the previous day (August 6, 2009). With no adequate substitute cap available, he then decided to cover the fuel filler port with ducttape until a replacement could be obtained: Kwasniewski wondered if Leffertthen thoughtthe helicopter had been airworthy. Leffert replied in the affirmative (Tr. 26-30). The pilot had not sought the opinion of any maintenance personnel, he said, because there had been none to ask, Inspector Kwasniewski now advised Leffert to refrain from further flying until the airworthiness ofthe aircraft could be determined. The inspector also told Leffert that any flights already undertaken in that condition might be in violation (Tr. 28, 45, 75-76, 85).

. Inspectors Kwasniewski and Bad Horse testified that to be airworthy, an aircraft must1) conform to its type certificate or supplemental type certificate ("STC") and 2) be safe for flight (Tr. 45-46, 95). This indeed is the Administrator's test See, e.g., Delaware Skyways LLC, FAA Order No. 2005-6 (March 8, 2005), p. 2; California Helitech, FAA Order No. 2000-18 (August 11, 2000), p. 3 n. 7. The inspectors concluded that 68 Whiskey, with duct tape covering the fuel filler port, had not been airwqrthy. The inspectors supported their position by explaining that thefuel cap is an essential component ofthe aircraft It is shown in the helicopter's engineering drawings. The drawings are considered part ofthe type certificate data sheet This view was confirmed'by a Bell Helicopter technician inspector Kwasniewski later contacted (49-50). When an aircraft does not conform to its type certificate, it is not airworthy by definition (Tr. 45-46, 96, 104). Itfails the first prong ofthe airworthiness test Moreover, inspector Kwasniewski added, the aircraft had not been safe for flight- thus failing the second, independent, prong as well. The use ofduct tape risked fuel contamination (Tr. 46-47, 58).-Rotor wasln:ould·get------- -- into the fuel ceiL Additionally, in an aircraft rollover, fuel might spill out and lead to a fire.' Three Bell Helicopter technicians whom inspector Kwasniewski later contacted substantiated his conclusion that the aircraft in the described condition had been unairworthy. One technician specifically confirmed that the fuel-cap

' Tr. 47, 96-98, I05: Had the cap been vented, duct tape sealing up the port would have prevemed the port to vent. That could have caused partial fuel cell collapse and eventuafly fuel starvation_ This was not a concern in lhis case because the cap had not been venled. Tr. 48, 97, I04.4 substitution created unacceptable concerns lorsafety (Tr. 49-51, 64; Agency Exh. 7). Inspector Kwasniewski determined from Respondent flight records that 68 Whiskey had operated ten times on August 7 with ducttape substituting for a fuel cap. The helicopter had carried a total of twenty-seven passengers! Respondent defended its conduct. Rushmore witnesses testified that Respondent had received assurances from knowledgeable and experienced people in the industry that the duct-tape solution - which, the witnesses noted, was expected to last only until another cap could be delivered to it- did not render the helicopter unairworthy. Mr. Jacob testified that on the morning ofthe 

## ih , after he learned of the situation, he had spoken with a design engineer at Bell. The engineer had advised that the cap was not a structural component. This individual, whom Jacob named, said that, as such, the situation had not created a safety orflight issue. According to pilot Lee Leffert, the engineer added that while Rushmore's temporary solution was not recommended, 

### it had not been a violation to operate without a fuel cap (Tr. 82). The engineer also had promised to forward to Mr. Jacob a "letter of non-objection." (Tr. 118119). Jacob, in consultation with Rushmore's chief pilot- a veteran of more than 40 years of flying·· and other Rushmore pilots, including Mr. Leffert, decided afterthis conversation that the duct-tape substitution did not render the aircraft unairworthy (Tr. 82-83, 119). Leffert added that he proceeded to operate with relatively little gas in the tank to keep the helicopter's total weight down and thereby fly the passengers in a safer condition (Tr. 73-74). Jacob also noted in Respondent's defense that Mr. Leffertwas pilot in command ("PIC"). Protocol and custom dictated that he alone was charged with determining if the aircraft was safe to operate. Since his decision as PIC had been in the affirmative, the implication was that Leffert's decision should be respected. · ··· · Perhaps, Mr. Jacob hinted, the pilot's fix nonetheless had constituted an \ erro[ in judgment. But it had not been

### undert~ken with the intention to circumvent any regulation orto create a hazardous situation, Jacob maintained -------------():r._1.19). • The Bell engineer was unable to make good on his promise. He.told Mr. Jacob later, the witness testified, that his supervisors directed him not to provide written approval. The reason offered was•that sucha letter could establish a (presumably unwanted)_precedent (Tr. 120).

2 Agency Exhibits 3 and 4; Tr. 40. The flight schedules list the date"' August 6. 2009, but the evidence showed that the nights took place on August 7. and the documents properly should have rcnected that. Tr. %-37.5
B. Findings and Conclusions I find and conclude that Complainant proved each ofthe violations it alleged. As noted, Respondent admitted the facts underlying the charges. Rushmore's witnesses each acknowledged that its Bell 206 helicopter known as 68 Whiskey had operated ten flights without a fuel filler cap and with ducttape over the area (Initial Decision ("I.D."), p. 2). Complainant showed that Rushmore violated 14 C.F.R. §91.7(a) by operating in an unairworthy condition. The evidence demonstrated that the helicopterwas not airworthy under either prong ofthe airworthiness test' As inspectors Kwasniewski and Bad Horse explained, the ducttape covering the fuel filler port meant that the helicopter did not match its essential engineering drawings. I found that, as such, the aircraft failed to conform to its type certificate (I.D., p. 3). I agree also with inspector Kwasniewski's testimony that the aircraft was neither airworthy underthe second prong because the substitute covering placed the safety of passengers and crew at an unacceptable risk. The prospect offire and the possibility offuel depletion were too greatto be consistent with minimum mandated levels of aircraft safety. Taping the fuel filler port, while wellintentioned and anticipated to be short-term, was an unaccepted and unapproved solution to the lack ofa fuel cap.' The described situation compels the conclusion that the aircraft was not airworthy when operated for the ten flights on August 7, 2009 shown by the evidence. As such, Complainant proved a violation of §91.7(a)

.. 

### " _,, Secondly, by operating the helicopter in the manner described, Respondent endangered life and property'to an unacceptable degree. Its actions risked fuel contamination and created an intolerable risk offire (see I.D., p. 3). Complainant thus proved a violation of §91.13(a) as well. I reject Respondent's counter that §91.13(a) should be treated merely as a residual violation or that Complainant failed to prove the elements ofthe violation (Resp. Br.: pp.- 7-8). Complainant made its case. Respondent also contends that it should not be held responsible for the violations. It was the PIC, Lee Leffert, who operated the helicopter, not Rushmore. The aircraft was Leffert's sole responsibility. Rushmore did ·not- -**~** · --,. "operate" the aircraft in the regulatory sense, it maintains, and therefore cannot be accountable for the results (Resp. Br., pp. 3-4, 9). This argument is rejected.

3See J.D., p. 3. Respondent states that Complainant must

### den~onstrate that Rushmore violated both prongs

.ofthe <1!rworthiness test to prove a §91 ,7(a) violation. Re5p. Br., p. 5. This is not correct; the agency is required onlyto prove ei1her that Respondent violated the first prong orthat it violated the second. See I.D., p. 3; Compl. Reply Br., p. 2. · · 4 Complainant was not required to show-that the described condition was unsafe in fact. II was enough to demonstrate that it carried the potential for ham1., Polynesian Airways. FAA OrderNo. 1994-40 (December 9, 1994); Dm,ldH. Muyer, FAA Order No. 1997-12 (February 20, 1997).6 Rushmore's contention ignores the fact that Respondent's president and owner, Mr. Jacob, knew on the morning ofAugust 7 that 68 Whiskey had covered its fuel filler port with duct tape and nonetheless had allowed the helicopterto operate the ten flights in issue (1.0., p. 2). Responsibility for the resultant violations thus falls squarely on him and, through him, on his company, the Respondent. But even putting that fact asi.de, itis well-established that air carriers are responsible for regulatory violations committed by anyone acting within his or her scope of employment for that carrier. See, e.g., Warbelow's Air Ventures, Inc., 2000 WL 298578 (FAA Order No. 2000-3), February 2, 2000;
· Alika Aviation, FAA Order No. 1999-14 (December 22, 1999). Air carriers,

mandated to perform their services with the highest possible standard of care, carry responsibilities too critical to permit them to transfer their obligations to another. An air carrier's duty of care simply is non-delegable. The public must be assured that carriers will do every1hing in their power to ensure that everyone working on their behalf complies with safety regulations. 

### TWA, FAA Order No. 1999-12, pp. 9, 10 (October 7, 1999). As the pilot of 68 Whiskey, Mr. Leffert clearly was acting within his scope of employment. Respondent is legally responsible for Leffert's conduct. Respondent operated the helicopter. Against this background, I find and conclude that Respondent violated FAR§§ 91.7(a) and 91.13(a) as set out in the Complaint.' III. Penalty

. The agency has asked for a total civil penalty of $25,000. Respondent takes exception. It asks that, should a violatio\1 orviolations be found. the agency's proposed fine be "significantly reduc[ed]." (Resp. Br., p. 1). Complainant bears the burden ofjustifying the amount of the civil penalty it seeks. Phyllis Jones Luxemburg, FAA Order No. 1994-18 (June 22, 1994), p. 6. I conclude that the evidence, taken in total, warrants a civil penalty in the amount of $22,500. A. Issues Complainant is obligated to consider the following factors when determining the civil penalty amount: (1) the nature and circumstances ofthe .,........_**~·violation;** (2)'theextent and gravity ofthe violation; (3) the respondent's degree of

culpability; (4) the respondent's history of prior violations, if any; (5) the respondent's ability to pay the civil penalty; (6) the effect on the entity's ability to stay in business; and (7) other matters as justice may require. See, e.g., Folsom's AirService, Inc., FAA Order No. 2008-11 (November 6, 2008), p. 11. The determination·weighs whether the violation was inadvertent or deliberate, the private or public character ofthe violation, and the attitude ofthe violator. The agency also considers the respondent's size, particularly in determining the**~** I have considered all other arguments advanced by**Respbnd~nt** and reject them without comment.7 offender's ability to absorb the sanction. An appropriate civil penalty must reflect the totality ofthe circumstances surrounding the violations (Tr. 110-11, 117; Folsom's AirService, Inc., FAA Order No. 2008-11 (November 6, 2008), p. 12; Eastern AirCenter, inc., FAA Order No. 2008-3 (January 28, 2008). Finally, the civil penalty should provide sufficient incentive to deterthe respondent and**simil~rly-situated** entities from future violations. Folsom's AirService, Inc., ld., p. 20. The agency has issued enforcement guidelines for its employees to follow in determining appropriate sanctions. The guidelines also advise the public of the sanction policy that the Administrator intends to abide by in adjudicating individual cases. Folsom's AirService, Inc., FAA Order No. 2008-11 (Nol(ember 6, 2008), p. 13. (A relevant excerpt was admitted as Exhibit 6. It is also found at www.airweb.faa.gov). The guidelines set out penalty recommendations within three ranges of amounts- designated minimum, moderate, and maximum- to best reflect the nature and circumstances ofeach violation. Mitigating and/or aggravating factors are part ofthe calculus. Complainant states that its civil penalty determination followed the guidelines. Under them, an unairworthy aircraft having an actual or potential adverse effect on safe operation warrants a civil penalty in the moderate-tomaximum range. For a small business concern such as Respondent, the Sanction Guidance Table sets out the civil penalty ranges perviolation as follows: moderate, $2,200 to $4,399; and maximum, $4,400 to $11,000. For ten violating flights, then, the Sanction Guidance Table recommends a total penalty of between $22,000 and $110,000 (Agency Exh. 

### 6; Compl. Br., p. 12) Complainant concluded that, in view ofthe guidelines' recommendations and all the factors pertinentto this case, an appropriate civil penalty should be $2,500 perflight, or $25,000 in total (Compl. Br., p. 12). B. Decision In weighing all the facts· and circumstances, Ifind and conClude that a civil penalty assessment of$22,500 is appropriate., It is commensurate with the nature and extent ofthe violations, while accounting in suitable**mea~?u~eJor** .**~-** mitigating and aggravating factors. · - . ·• -

### ~- The record shows that Respondent's helicopter was flown outside ofthe specifications of its type certificate and in an unsafe manner on ten occasions. These actions placed the travelling public <;1t significant and unacceptable risk. Respondent's conductwarrants'a substantial penalty. Rushmore contends in mitigation that it did not intend to bypass or evade any requirement. Norwas it trying to court an unsafe situation (see I.

### D., p. 4). This**~rgument** fails to persuade. The behavior of 68 Whiskey's pilot, Lee Leffert, was not completely forthcoming. He demonstrated that he was aware that the. 8 fuel-cap situation might raise questions. When the inspectors asked him if he had any maintenance issues with the helicopter, he replied in the negative (I. D., p. 2). Perhaps in his own mind he had nq such issues-- but as a veteran PIC with forty years' experience (Tr. 43), Mr. Leffert was neil naive. He had to have known what the inspectors were getting at. He had a duty under the circumstances to offer a fuller explanation. He should have raised the matter of the missing fuel cap. He did not. Additionally, Leffert claimed to be in a hurryand it may be fairly inferred in this context that he was hoping to cut short the inquiry.' The pilot's behavior during this conversation, in sum, was not particularly accommodating. Against this background, Respondent may not fairly assert that it had no intention to overlook requirements. It may claim no mitigation on this ground. In fact, Leffert's coy conduct amounts to an aggravating circumstance. Mr. Jacob also asserted in mitigation that Respondent had operated in reliance on an opinion from a Bell technician (I.D., p. 4). I will permit some mitigation on this ground. noting that this testir)1ony is entitled to lesser weight as pure hearsay. Respondent produced neither the technician nor an attestation from him. 7 The sanction amount of$22,500 suitably accounts for the totality ofthe circumstances ofthis case. The assessment determined also is substantial. Further, it is within the guidelines' moderate-to-maximum range of suggested penalty amounts. Ifind also that the penalty has sufficient "bite," or deterrent effect (see Toyota MotorSales, Inc., FAA Order No. 94-28 (September 30, 1994), p. 11). '

f, I note that inspector Kwasniewski testified not that he had asked Mr. Leffert ifhis helicopter had any maintenance issue:;, bul the more pointed- and more difficult to**deny~-** question ofwhether the pilot had any airworthiness issues. Tr. 24. Ldfcrt denied that the inspectors asked him specifically about airworthlness. Tr. 84. For purposes ofthe discussion in the text, Iaccept Leffert's recollection ofthe conversation. 7 Complainant's assertion that three Bell technicians believed that the duCt-tape solution rendered the helicopter unairworthy also,was hearsay, ofcourse; however, it was supp_orted by an e-mail written by one ofthe technicians. Agency Exhibit 7.**Moreover~** this testimony was offered in support of, and coofim1ed, by the expertise ofComplainant's inspec(ors -- who**did~** ofCourse, testify.

Igive no weight to the opinions ofother Rushmore pilots supporting Mr. Leffert's duct-tape solution. In addition to its hearsay nature. there was no showirlg ofexpertise; moreover, theiropinions, as Rushmore employees. were self-serving.

## ,_ 9 Rushmore Helicopters, Inc. is hereby assessed a civil penalty of $22,500 for violations of FAR §§91.7(a) and 91.13(a) as described in this Initial Decision.•

Attachment- Service List In Administrative Law Judge



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# ---- -----·· ....___ -**~Any** ilppeal from the Initial Decision to the Administrator must be in accordance with section 13.233 of the Rules ofPractice, which requires I) that a not[ce ofappeal be filed no later than 10 days (plus an additivnal 5 for mailing) fi'om the date ofthis order and 2) that the appeal be perfected with a wrinen brief or memorandum not later than SO days (plus 5 for mailing) from the date ofthis order. Each is to be sent to the Appellate Docket Clerk, Room 924,A, Federal Aviation Administration, 800 independence Avenue, S.W., Washington, DC 20591, and to agency counsel. Service upon the presidingjudge is optional.