CERTIFIED MAIL-RETURN RECEIPT REQUESTED 

CERTIFICATE OF SERVICE 

I certify that the foregoing Amended Motion to Dismiss has been placed this date in the Cf\f^ ^ ^ 

United States mail, postage prepaid, by Certified Mail-Return Receipt Requested 

addressed as follows: 

ORIGINAL & ONEX:OPY 

Federal Aviation Administration 

800 Independence Avenue S.W. 

Washington D.C. 20591 

Attn: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building- Room 2014 

ONE COPY 

Zachary M. Berman, Attorney 

Federal Aviation Administration 

Office of the Regional Council 

1 Aviation Plaza 

Rockaway Boulevard 

Jamaica, N.Y. 11434 

Tel: 718-553-3258 

FAX: 718-995-5569 

! 1 

CO 

C3 

0 

The Honorable Ronnie A. Yoder, Chief Administrative Law Judge 

U.S. Department of Transportation 

Office of Hearings, M-20, Room El 2-320 

1200 New Jersey Avenue, S.E. 

East Building Ground Floor 

Washington, D.C. 20590 

TEL: 202-366-2142 

FAX: 202-366-7536 

Date: \V-^0 - V\^ 

EugerTe K. McDwnough 

President, Million Air Richmond 

400 Portugee Road 

Richmond Intl. Airport 

Virginia 23250-2417 

Tel: 804-222-3700 

FAX : 804-222-4044 
In the Matter of Carolina Blue Air. LLC 

FAA Docket N. CPIOEAOOIO 

FDMS No. FAA-2010-0972 • ' t 

AMENDED MOTION TO DISMISS 

No violation occurred and no fine is appropriate 

STATEMENT OF UNDISPUTED FACTS 

1. Undisputed 

2. Undisputed 

3. Undisputed 

4. Undisputed 

5. Undisputed 

6. Undisputed 

7. Disputed 

ARGUMENT 

1. No argument 

2. No argument 

3. No argument 

4. The effective date of the AD applied to the initial compliance in 1998. 

5. During the FAA's inspection of March 21, 2010, a logbook entry of August 20, 2009 

was reviewed. The August 20, 2009 date indicates the end of the work-scope and is 

incidental to when the aircraft was last subject to the required inspection. The aircraft 

entered a maintenance event on August 1, 2009. The practicality is the AD may have 

been accomplished some weeks prior to the log entry date, as part of a larger workscope. It would be prudent to expect that recurrent ADs would be accomplished in the 

first few days, allowing any anomalies to be discovered early enough not to affect a 

delivery date. A logbook date [FAR 43.9 (a) (2)] does not indicate when the AD was 

accomplished nor when the aircraft was returned to service, two major and very 

different elements. It is not a substitute for the effective date of an AD. 
6. No argument 

7. The text that is paraphrased in Complainant's Motion for Decision is irrelevant to the 

issue at hand. This paragraph of the Airworthiness Manual (hereinafter the "ADM") 

refers to the initial compliance times, not the recurrent thresholds. (ADM Page 54) 

The paragraph prior to the one quoted in the Motion, albeit still applicable to initial 

compliance, states (ADM Page 53): 

c. Calendar Times and Dates. 

(!) Calendar times (e.g., "within six months after the effective date of this AD") may be used 

to express compliance times when a direct relationship between calendar time and airworthiness 

(including corrosion) can be established; an aircraft's utilization rate varies greatly throughout 

the fleet; or logistical support considerations (parts availability, repair facility availability) 

dictate that compliance be one on an attrition basis with a calendar deadline established to 

minimize impact on operators (that is, avoid unnecessary grounding of aircraft). 

Consider the following analogy: 

E.xample: An aircraft has an AD visual inspection due before the next flight and 

recurrent within three days thereafter. It is accomplished at 1000 on Monday morning. 

Is it due again by 1000 Thursday morning or by midnight Thursday? 

If the additional hours of the day were consequential and the intention was to have it 

accomplished on or before Thursday at 1000, it would have been stated in the text of the 

AD "due each 72 hours" not due within three days. 

The effective date of the AD or the initial compliance date has no relevance on recurrent 

thresholds. The controlling factor of the AD in this case is not the day of the month the 

last recurrent inspection log entry was entered, nor the time of day it was performed. The 

AD did not specify consecutive months, unit months, or calendar months. It did not state 

"each 180 days". No violation occurred providing the recurrent inspection was 

accomplished in February or the aircraft was not operated in March 2010 until it was. 

There is a paragraph in the ADM for recurrent thresholds. According to the ADM, on 

Page 56 in the section Repetitive Compliance Time, the following is stated: 

/. Repetitive Compliance Time. 

(1) When an initial inspection is followed by repetitive inspections at periodic intervals, 

tlie following statement may be used, but it should be included in the instruction itself, not as a separate 

compliance paragraph: 

Within the next [25 hours] time-in-service (TIS) after the effective date of this AD, 

unless already done within the last [75 hours] TIS, and thereafter at intervals not to 

exceed [100 hours] TIS from the last inspection, inspect... 

(2) The phrase "unless already done within the last 75 hours time-in-service" accounts for 

an operator that has made an inspection before the effective date of this AD. If the compliance time for the 

initial inspection is the same as that for the repetitive intervals, the following statement may be used: 

Compliance: Required within the next [25 hours] time-in-service (TIS) after the effective 

dale of this AD, and thereafter at intervals not to exceed [25 hours] TIS from 
the last inspection. 

(3) Again, the complexity of the statement will determine whether it is best issued as part 

of the compliance as part of the inspection instruction. 

The ADM is obvious in its instructions: 

(3) Do not use calendar time Just because it ensures that the AD is complied with at a certain time 

(Page 54, ADM) 

The Motion for Decision acknowledges that exceeding three hundred hours is immaterial. 

The ADM distinctly advises against using dates as a compliance threshold. The Motion 

for Decision is based on a selective and improper interpretation of the ADM. 
In the Matter of Carolina Blue Air. LLC 

FAA Docket N. CPIOEAOOIO 

FDMS No. FAA-2010-0972 

AMENDED MOTION TO DISMISS 

No violation occurred and no fine is appropriate 

STATEMENT OF UNDISPUTED FACTS 

1. Undisputed 

2. Undisputed 

3. Undisputed 

4. Undisputed 

5. Undisputed 

6. Undisputed 

7. Disputed 

ARGUMENT 

1. No argument 

2. No argument 

3. No argument 

4. The effective date of the AD applied to the initial compliance in 1998. 

5. During the FAA's inspection of March 21, 2010, a logbook entry of August 20, 2009 

was reviewed. The August 20, 2009 date indicates the end of the work-scope and is 

incidental to when the aircraft was last subject to the required inspection. The aircraft 

entered a maintenance event on August 1, 2009. The practicality is the AD may have 

been accomplished some weeks prior to the log entry date, as part of a larger workscope. It would be prudent to expect that recurrent ADs would be accomplished in the 

first few days, allowing any anomalies to be discovered early enough not to affect a 

delivery date. A logbook date [FAR 43.9 (a) (2)] does not indicate when the AD was 

accomplished nor when the aircraft was returned to service, two major and very 

different elements. It is not a substitute for the effective date of an AD. 
6. No argument 

7. The text that is paraphrased in Complainant's Motion for Decision is irrelevant to the 

issue at hand. This paragraph of the Airworthiness Manual (hereinafter the "ADM") 

refers to the initial compliance times, not the recurrent thresholds. (ADM Page 54) 

The paragraph prior to the one quoted in the Motion, albeit still applicable to initial 

compliance, states (ADM Page 53): 

c. Calendar Times and Dates. 

(1) Calendar times (e.g., "within six months after the effective date of this AD") may be used 

to express compliance times when a direct relationship between calendar time and airworthiness 

(including corrosion) can be established; an aircraft's utilization rate varies greatly throughout 

the fleet; or logistical support considerations (parts availability, repair facility availability) 

dictate that compliance be one on an attrition basis with a calendar deadline established to 

minimize impact on operators (that is, avoid unnecessary grounding of aircraft). 

Consider the following analogy: 

Example: An aircraft has an AD visual inspection due before the next flight and 

recurrent within three days thereafter. It is accomplished at 1000 on Monday morning. 

Is it due again by 1000 Thursday morning or by midnight Thursday? 

If the additional hours of the day were consequential and the intention was to have it 

accomplished on or before Thursday at 1000, it would have been stated in the text of the 

AD "due each 72 hours" not due within three days. 

The effective date of the AD or the initial compliance date has no relevance on recurrent 

thresholds. The controlling factor of the AD in this case is not the day of the month the 

last recuixent inspection log entry was entered, nor the time of day it was performed. The 

AD did not specify consecutive months, unit months, or calendar months. It did not state 

"each 180 days". No violation occurred providing the recurrent inspection was 

accomplished in February or the aircraft was not operated in March 2010 until it was. 

There is a paragraph in the ADM for recurrent thresholds. According to the ADM, on 

Page 56 in the section Repetitive Compliance Time, the following is stated: 

/. Repetitive Compliance Time. 

(t) When an initial inspection is followed by repetitive inspections at periodic intervals, 

the following statement may be used, but it should be included in the instruction itself, not as a separate 

compliance paragraph: 

Within the next [25 hours] time-in-service (TIS) after the effective date of this AD, 

unless already done within the last [75 hours] TIS, and thereafter at intervals not to 

exceed [100 hours] TIS from the last inspection, inspect... 

(2) The phrase "unless already done within the last 75 hours time-in-service" accounts for 

an operator that has made an inspection before the effective date of this AD. If the compliance time for the 

initial inspection is the same as that for the repetitive intervals, the following statement may be used: 

Compliance: Required within the next [25 hours] time-in-service (TIS) after the effective 

dale of this AD, and thereafter at intervals not to exceed [25 hours] TIS from 
the last inspection. 

(3) Again, the complexity of the statement will determine whether it is best issued as part 

of the compliance as part of the inspection instruction. 

The ADM is obvious in its instiuctions: 

(3) Do not use calendar timejusi because It ensures that the AD is complied with at a certain time 

(Page 54, ADM) 

The Motion for Decision acknowledges that exceeding three hundred hours is immaterial. 

The ADM distinctly advises against using dates as a compliance threshold. The Motion 

for Decision is based on a selective and improper interpretation of the ADM. 

^»fe..