### U.S. DEPARTMENT OFTRANSPORTATION OFFICE OFHEARINGS FEDERALAVIATION ADMINISTRATION

FEDERAL AVIATION ADMINISTRATION, Complainant, 

# RECEIVED MAR 192014 

## HEARING DOCKET

vs. DocketNo. FAA-2013-0291 FAA CaseNo. 2011S0290032 AIRBORNE MAINTENANCE AND ENGINEERING SERVICES, Respondent. Judge Sullivan

RESPONSE

### INOPPOSltlONtO

### MOTION to COMPEL On March 10, 2014, Respondent moved the Judge to compel the FAA to further respond to certain discovery requests. As discussed in the FAA's objections to those discovery requests, Respondent's discovery requests were untimely, and the information sought is beyond the scope ofdiscovery orprivileged. Accordingly, Respondent's Motionto Compel should be denied. / 

### Untimeliness As Respondent notes in its Motion to Compel, but does not address, the FAA objected to Respondent's discovery requests as untimely filed. See 

### Motion to Compel at 1 n.l; Motion Exhibit 1 at 1. Because Respondent failed to timely initiate discovery, in violation ofthe Judge's Order, and without any apparent reason, the Judge should not compel any response to the latefiled discoveryrequests. 1 

### In the Judge's Order Setting Litigation Dates and Procedures, dated November 7, 2013, the Judge stated that the parties were to beginwritten discovery "on or before January 28, 2014."

1As a courtesy, the FAA has agreedto provide responses to Respondent's otheraspects ofRespondent's untimely discovery requests that did not consist ofirrelevantpersonal attacks on the reporting inspector and/or delibeate requests for privileged information. 1

### This was consistent with the discussions of the parties, which resulted in a joint submission proposing January 28, 2014 as the date on which initial written discovery requests would be due. See 

### Joint Supplemental Rule 26(f) Schedule/Discovery Plan, dated November 4, 2013. Respondent, however, did not promulgate its initial written discovery requests until February 6, 2014, nine days after that deadline. See 

### Motion Exhibit 3 at Certificate of Service. When addressing this untimeliness (both in its e-mail and telephonically), Respondent has provided no
reason for its failure to timely initiate discovery, but rather has insisted that there was no deadline to initiate written discovery. See Motion Exhibit 2 at 2. Respondent's position, it appears, is that the Order's statement that written discovery was to be initiated "on or before January 28, 2014" means that written discovery can be first initiated at any point after January 28, 2014, through June 6, 2014. Respondent correctly noted that discovery continues until June 6, 2014, see 

### id., but this does not mean that the parties were permitted to simply delay the initiation ofdiscovery for no reason, because the remainder ofthat discovery periodis to be used for follow up on that initial written discovery, such as the taking ofdepositions, the submission ofexpert information, and (ifnecessary) the issuance of supplementary written discovery. For example, by not submitting its initial written discovery until February 6, 2014, the FAA's responses were not due until March 10, 2014,2 

### and we are already in the time period where depositions were to be conducted. Respondent's discovery requests were untimely, and Respondent has asserted no basis at all for that untimeliness, much less shown good cause for it. Accordingly, Respondent's Motion to Compel compliance withthose discovery requests should be denied.

2 They wouldhave been due on March 8, 2014, butbecausethat was a Saturdaythe deadline would not fall until the next weekday, which was Monday, March 10, 2014. 2

### Personal Attacks onFAA Personnel Are Not Withinthe Scope ofDiscovery Almost half of Respondent's discovery requests did not concern the allegations in the Complaint, but instead consisted of Respondent's complaints about what it perceived as the "intimidating, harassing, abusive, and inappropriate conduct" of one of the FAA inspectors involved in this matter. See 

### Motion Exhibit 3 at Interrogatories 1 0-12; Requests for Production 4-10. The FAA objected to these requests as beyond the scope ofdiscovery because they did not
concern this litigation, but rather sough to air irrelevant complaints about the reporting inspector. See 

### MotionExhibit 1. Respondent now argues that these requests address the credibility and bias ofthe FAA inspector. See 

### Motion at 2. The FAA does notdispute that the credibility ofwitnesses can be at issue in litigation. The problem is that Respondent's discovery requests have nothing to do with the credibility of any witnesses. Respondent asserts that its questions concern bias concerning Respondent because the Inspector advised Capital Cargo International Airlines (CCIA) to stop using Respondent's services, and "directed" Respondent to use the services of another repair station. See 

### Motion at 3. However, even ifthese allegations were true it would not show bias,
none of Respondent's discovery requests concern such an allegation, this is (contrary to Respondent's assertions) simply a "shot in the dark," and none of the discovery requests promulgated actually concernbias or credibility. As an initial matter, most ofRespondent's discovery requests do not even relate to the alleged bias presented in its Motion. The alleged bias concerns disfavoring Respondent and favoring some other repair station. But that is not what the discovery requests concern. Request for Production #6 concerns any complaint by any party concerning intimidating, harassing, or abusive conduct. See 

### Motion Exhibit 3 at 6. Interrogatory #12 and Request for Production #9

3

### concern an allegation that the FAA Inspector "threatened" CCIA personnel by informing them (accurately) that their certificates couldbe injeopardyifthey did not comply with Airworthiness Directive (AD)3 

### documentation requirements. See 

### Motion Exhibit 3 at 9-10. Interrogatories #10 and 11 and Requests for Production 4 and 5 concern allegations of unspecified intimidating, harassing, and abusive conduct towards CCIA. See 

### Motion Exhibit 3 at 9-12.Request for Production #7 concerns a more specific allegation that the Inspector made intimidating, harassing, and abusive statements, and expressed a negative opinion ofRespondent. See 

### Motion Exhibit 3 at 7-8. Except for Request for Production #7, none ofthese discovery requests have anything to do withRespondent or withthis case. And none ofthemhave anything to do withthe arguments ofbias raised byRespondent in its oWn Motion. Even iftrue 

### (which they 

## are hot); allegations ofwhetherthe Inspector was being "intimidating"have no relationto bias. Second, even ifthe new allegations made by Respondent in its Motion to Compel were accurate (which they are not), they would not show bias. Notably, all of the alleged matters raised in Respondent's discovery requests occurred in 2012, the year after the Notice of Proposed Civil Penalty in this case was issued, and two years after Respondent's improper maintenance was discovered. Respondent presents no explanation for how it would demonstrate bias for an Inspector to hold or express negative opinions about the competence of a repair station, after conducting investigations into maintenance performed by that repair station, after concluding that the repair station had violated multiple sections of the Federal Aviation Regulations on multiple occasions, after concluding that those violations were severe enough to warrant legal action, and after the issuance by the FAA of a civil penalty action for those violations. Indeed, it is unclear how an Inspector in such a situation could not have some negative views about the Respondent and its conduct. If this shows "bias," then every 

### FAA

3 There are no ADs at issue in this case. 4

### Inspector in every civil penalty case would be subject to the same sort ofharassing discovery propounded by Respondent inthis case. Further, none of the alleged statements concern the Respondent's interactions with Respondent, but rather the Inspector's interactions with an air carrier for which he was a Principle Inspector. And all ofthose conversations occurred on or after the date ofthe issuance of a civil penalty letter against that air carrier as a result of (among other things) AMES's improper performance of maintenance. In the long-term relationship between a principle inspector and an air carrier, it would be entirely reasonable and appropriate for the inspector and the air carrier to discuss steps that the air carrier could take to ensure safe operation going

··· forward;stepswhichmightincludeseveringa-relatiunship··with a· maintenance·contractorthat had resulted in numerous instances of the operation of aircraft in an unairworthy condition. Indeed, the approved list ofmaintenance contractors is something that an air carrier is required to submit to the FAA- it is not only appropriate for FAApersonnel to have opinions on whether a maintenance provider is appropriate; it is part oftheirjobto consider suchthings. That these questions are beyond the scope of discovery is further demonstrated by the explosion of irrelevant material that would consume this litigation ifthe Inspector's opinions about Respondent, and the manner in which he expressed those opinions, were ruled to be within the scope ofdiscovery. For ifthe Respondent is allowed to "impeach" the inspector's credibility by seeking to present evidence that he made comments on the quality ofRespondent's work and whether it was a good idea for CCIAto continue to use AMES, then it will become necessary for the FAA to present evidence ofnumerous maintenance failures by AMES, which otherwise have
no relation to this case, and also evidence of complaints by CCIA personnel about the low quality ofwork performed by AMES, which CCIA was forced to use as a maintenance provider

5by the parent corporation that owns both CCIA and AMES. As a practical matter, it should not be ruled that such a breadth ofotherwise irrelevant material should come withinthe scope ofthis case, but it will become necessary ifthe Judge determines that an exploration ofthe Inspector's allegednegative opinions on AMES are somehowpertinent to the Inspector's credibility. Contrary to Respondent's assertions, this is simply a "shot inthe dark." Respondent cites 

### In re: BaldMountain Air Services, but the ruling in that case concerned allegations ofconduct (thatthe inspector had sent sexually explicit e-mails to the Respondent) thatwere "so bizarre and unprofessional" that they might indicate problems with the inspector, and involved allegations based on documentary evidence. 

### See Motion at 2. No such allegations are present here. Rather, ··Respondent**make~r**unverifiable··accusations;·unsupported byanyevidence, thatthe Inspector··

expressednegative opinions aboutRespondent, and on one occasion expressed a positive opinion about another repair station. The chasm between these allegations and some sort of bias is insurmountable. Respondent is not engaged in a legitimate exploration ofbias, but rather in an attempt to use the discovery process to harass the FAAinspector who assembledthe case against it. This is emphasized by Respondent's Request for Production #6 and the other requests noted above, which have no relation ofany sort to AMES or to the facts ofthis case, but are simply unrelated accusations thatthe inspector was "intimidating" orused course language. In sum, Respondent has promulgated a series ofdiscovery requests concerning whether the Inspector acted in an "intimidating" and "abusive" manner, and now seeks to compel responses to those requests based on a theory ofbias that has no relation to the large majority of those requests. Most significantly, it seeks to compel responses based on a theory ofbias that simply does not demonstrate any bias

- whether the Inspector formed and expressed negative opinions ofRespondent after years ofinvestigating maintenance violations by Respondenthas no

6

### relation to whether the Inspector is credible or not when he testifies about those maintenance violations. Further, even if Respondent's theory of bias held water, at least eight of the ten discoveryrequests at issuebear no relationto thattheory. The FAA ShouldNot Be Compelledto Produce Privileged Documents Respondent also seeks to have the Judge require the FAA to produce an unredacted copy ofSection B ofthe EIR in this case. See 

### Motion at 3-5. Section B ofthe EIR, and in particular the opinions expressed within that document, are covered bythe attorney-client and deliberative process privileges. Each privilege independently precludes the production of the requested document. The FAA shouldnotbe required to produce the document, and no in camera

### review is

··· ·neeessary;···· As an initial matter, it may be worth noting how an EIRis organized, and what Section B of the EIR is. An Enforcement Investigative Report contains three sections. See 

### FAA Order 2150.3B at 8-l to 8-3 (a copy ofwhich is attached as Exhibit A). Section A ofthe EIR is Form 2150-5, Section B is a Statement ofthe Case and Factors Affecting Sanction, and Section Cis Items of Proof (lOPs). See id. 

### As noted in in Order 2150.3B, Section B is written by the reporting inspector and contains a statement ofthe facts that the Inspector believes are pertinent, along with the Inspector's feelings, opinions, and conclusions about the case, including recommendations about what appropriate action in the case is. See id. 

### Ifthe reviewing specialist at the regional office concurs that legal action is called for, then that specialist will also add a sanction recommendation memorandum to Section B. See id. 

### The ultimate audience for Section B is agency counsel, who will consider those feelings, opinions, conclusions and recommendations in determining whether there was a violation (or violations) ofthe Federal

7

### Aviation Regulations, whether legal action is appropriate, and what form the legal action should take. First, the document is covered by the attorney-client privilege. Respondent asserts that Section B was not produced at request of counsel, and was not for purposes of securing legal advice and is, therefore, not covered by the attorney-client privilege. Respondent is mistaken on both counts. Section B is produced at the request ofcounsel. FAA Order 2150.3B requires FAA personnel to prepare Section B when they are preparing an EIR to be sent to agency counsel. Order 2150.3B notes that it was "Initiated By: AGC-300," which is the enforcement division within the FAA's Office of Chief Counsel. Additionally, the EIR is made for the purpose of

------- - ------- -- -----securing-legal advice-and-representation;-As discussed·

### a:bove, the-·EIR (including Section

### BJis

-- presented to agency counsel so that counsel can determine whether and what legal action is appropriate. Just as a letter from Respondent to its attorney discussing the Notice ofProposed Civil Penalty and asking opposing counsel to represent it in this action would be privileged, so too is Section B privileged, for it serves the same role ofinforming the attorney aboutthe case so that the attorney canmake an appropriate legal decision. Second, the document is covered by the deliberative process privilege. Respondent does not dispute that SectionB is privileged, but argues that the privilege should be disregarded here. In particular, Respondent argues for the first time that because it has made an allegation ofbias against the reporting inspector, it should be permitted to review the entirety ofSection B ofthe EIR. This argument is without foundation or merit. As an initial matter, it is worth noting that, if accepted, Respondent's position would mean the annihilation of the deliberative process privilege, because all that a litigant would have to do is allege bias, and would then get to review privileged documents, regardless ofwhether there was any foundation for or evidence in support



### 8

### ofthat allegation. See 

### Motion at 4-5. Even ifthe Judge only grants an in camera

### review, and then does not order any disclosure, such a ruling would mean that in most future FAA civil penalty litigations, the Judge may end up having to perform such a review, for there would be nothing stopping a Respondent from asserting without any foundation that the reporting inspector was overlyharsh and thatthis demonstrates bias. Further, Respondent has not demonstrated any need to review the entirety ofSection B, 

### a high bar that Respondent does not make any significant effort to hurdle. Respondentprovides no explanation ofwhy it has any need ofthe documents, much less why its need is so strong that it
can overcome the deliberative process privilege. Respondent asserts that it wants to see the

········· -·----contents-of-Section B,···butdoes·nutsaywhatevrdencecould··bec·ontained-witlllii 

### tharitwouldneed orwhy it cannot obtainthat evidence elsewhere. Nor does Respondentpresent any evidence of its own, which one would normally except to see when a party is requesting something so significant as the voiding ofthe deliberative process privilege. Respondent already has access to all ofthe information it needs for its defense ofthis
case. Respondent has beenprovided withthe factual portions ofSection B, 

### and asserts in its own Motion that the FAA's case is "easily contradicted by the facts." See 

### Motion at 4. The Respondent has been provided with the factual observations ofthe reporting inspector, and other FAA personnel, and personnel from Respondent and CCIA had the opportunity to and did conduct their own inspections and review of the aircraft at the time the problems were discovered4 

### The Respondent is already aware ofthe aircraft maintenance manual sections at issue inthis case, and why the FAA alleges thatthey were not followed. Knowing the Inspector's

4 Respondent mayno longerbe satisfiedwith the reviews that it and CCIA conducted, inasmuch as they concluded that the maintenance hadbeen improperlyperformed, but that is not a basis for removing the privilege. 9

### opmwns, feelings, conclusions, and recommendations based on these matters will not add anything to Respondent's defense. Respondent's allegation of abrasive statements by the Inspector is, as discussed above, spurious and has no relation to bias. But even ifit was taken to have any relevance to this case such that Respondent would be permitted to conduct discovery on the subject, Respondent has not demonstrated why it could only obtain information from privileged documents, as opposed to routine discovery requests or through talking to CCIA personnel who were allegedly present for the supposedly "intimidating" comments by the Inspector. Respondent has not even presented any evidence that these incidents occurred, merely the Respondent's own briefstatements in its

············ ···motion-·andits··discoveryrequests;·which(as·discussed-above}arenot·even·consistenrwtthea:chother. Additionally, requiring disclosure of Section B would have a substantial negative effect
on the FAA's ability to conduct investigations. The FAA and agency counsel rely on frank and honest discussions between FAA personnel in order to properly investigate and assess potential aviation safety violations. To shred the privilege that shrouds these discussions would negatively impact the FAA's ability to conduction investigations, bring legal enforcement actions, and promote aviation safety. Respondent's request that the privilege be voided makes no consideration for the government's strong need to be able to conduct internal discussions in a frank manner. In sum, Respondent has made no serious, credible allegation ofbias, nor has it identified any way in which is needs to review these privileged documents even ifits "shot in the dark" allegations of bias were considered pertinent to this matter. Respondent admits that the

10dellberative process privilege applies, butpresents no sufficientbasis for voiding thatprivilege in this case. Conclusion Respondent moves to compel the FAA to comply with certain discovery requests, those discovery requests bearing no relation to the allegations in the Complaint, but rather consisting of an effort by Respondent to harass the reporting inspector. Respondent's Motion to Compel should be denied. First, Respondent's discovery requests were untimely and Respondent has presented no reason for thatuntimeliness. Second, Respondent's allegations ofbias, made for the first time in its Motion to Compel, would not show bias even if true. Third, Respondent's

.........discoveryrequests.headittle,.ifany, relationtoitsallegationsofbias. Fourth,thedocumentsthat Respondent seeks are covered by the attorney-client privilege and, as Respondent admits, by the deliberative process privilege. But there is no exception to the attorney-client privilege, and the exception to the deliberative process privilege that Respondent raises is not applicable in this
case.

"(_ Respectfully submitted this

# U day ofMarch, 2014.

# ~~**CHRIS£rH~R** R. STEVENSON Attorney Office ofthe Regional Counsel

IICERTIFICATE OF SERVICE I hereby certifythat the foregoing FAA's Response in Opposition to Motionto Compel was sent: original and one copy via certified mail to: Federal Aviation Administration 800 Independence Avenue, S.W. Washington, D.C. 20591 Attention: Hearing Docket Clerk, AGC-430 Wilbur Wright Building- Suite 2W1000
one copyvia certified mail to: The Honorable J.E. Sullivan Administrative LawJudge Office ofHearings, M-20 U.S. Department ofTransportation**··l200NewJerseyAvenue;SE{EH~310)** ····· ·········· ······· ··········· ·················· --- - ----- Washington, DC 20590 facsimile: (202) 366-7536
one copyviacertified mail to: Robert P. Silverberg, Esq. 1101 301 h Street, NW, Suite 120 Washington, D.C. 20007 Facsimile: (202) 944-3306

Le ssi tant Office ofthe Regional Counsel 

## MAR 1

## 4 2014 Dated

12

### U.S. DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION National Policy

SUBJ: FAA Compliance and Enforcement Program 

### ORDER 2150.38 Effective Date: 10/01/07

This order contains policies, procedures, and guidelines for the Federal Aviation Administration's compliance and enforcement program. The order also articulates the FAA's philosophy for using various remedies, including education, corrective action, informal action, remedial training, administrative action, and legal enforcement action, to address noncompliance with statutory and regulatory requirements enforced by the FAA. It provides for the public a written statement ofthe Administrator's policy guidance for imposing sanctions for violations ofsuchrequirements. The order is used at all levels by agency personnel who are engaged in the investigation, reporting, and processing ofenforcement actions. Itapplies to all offices with regulatory responsibilities. This revision ofthe order comprehensively updates policies, procedures, guidance, and assignments of**responsibility.]t!'eorg1lnize~tl!e_()r<i<)ril11lJl1a_nllert110reuse[u)for"gencue!S()J111"laJ1djsayaila!Jl<O** electronically to agency personnel and the public. The revision amends agency sanction guidance to conform to statutory changes resulting from Vision lOOCentury ofAviation Reauthorization Act and incorporates guidance into the agency's compliance and enforcement program order on policies and programs that have developed since the last comprehensive order revision in 1988. Those include policies relating to the FAA's exercise of its authority to administratively assess civil penalties and guidance onthe agency's voluntary safety programs. A workgroup of agency personnel from the field and headquarters with extensive experience in statutory and regulatory enforcement reviewed the agency's policies and programs in this area to produce this comprehensive revision ofthe agency order on its compliance and enforcementprogram.

Distribution: A-W-l;A-W (AT/PS/SM)-2;A-W (PP/AM/SF/ GCIFSIIAIVS)-3;A-XYZ (A T/AF/CS)-2;Z-X (AS/AM/GC/FS)-3; A-Y (AM/ARIGC)-3;A-Z (AM/AN/GC)-3;A-FAC/FACIFCS-O; A-F AF/FA T/FIA-O(L TD);ZFS-325 Initiated By: AGC-300

GOVERNMENT EXHIBIT 

# &10/01/07 2150.38 Chapter 8. Enforcement Investigative Report (EIR)
1. Purpose for EIR. The EnforcementInvestigative Report (EIR) is themeans for documenting, assembling, organizing, and presenting all evidence and otherrelevantinformation obtained during an investigation. Because it is therecord from which determinations of violations and sanctions are made, the report mustbe well prepared, factual, and providethe proofrequiredto substantiatethe enforcement actions contemplated. 2. EIR Recommendations. Ifduring an investigation, FAA investigativepersonnel determine that no violation occurred, they terminate the investigation and completethe appropriate sections ofthe ErR. Ifa letter ofinvestigation was issued, FAA investigative personnel notify the recipientthatthe matterhas been closed. IfF AAinvestigativepersonnel determine after evaluation ofall the evidence obtained in the investigationthata violation appears to have occurred, then they recommend either administrative action orlegal enforcement action in accordance withthe guidance in chapter 5. FAA investigativepersonnel must exercise caution to ensure that neitherthe alleged violatornor any other unauthorizedperson is informed oftheir recommendations.

- - ------------------ - -------- ------- - --------- -------------- 3. Organization ofan EIR. An EIRcontains three sections labeled A, B, and C. The information contained in each section is described in chapter 8, subparagraphs 3.a., b., and c. FAA investigative personnel prepare an EIR in accordance withthe guidance in this chapter.
a. Section A. FAAForm 2150-5. Section A oftheEIRcontains a completedForm 2150-5. FAAinvestigative personnel completethe information blocks onForm 2150-5 in accordance with the guidelines in chapter 8, paragraph 4. They enter information required on Form 2150-5 into the Enforcement Information System (EIS) using an interactive terminal that displays information as it is keyed. As a data element is completed, the EIS performs edit and validation routines to ensure the accuracy ofeach data element. The EIS edits user tables, performs range checks, and conducts omission detection and date validation to prevent erroneous information from reachingthe EIS database. When an error is discovered, the terminal displays a descriptive errormessage and sounds an alarm. Two types oferrors can be indicatedby the system: fatal, which users must correct before they can continue, and warning, which is displayed to alertusersto a potential error situation. Aftercompletion ofall required fields on Form 2150-5, FAA investigative personnel print it for inclusion in the EIR. b. Section B. Statement ofCase and Factors Affecting Sanction. The statement ofcase and factors affecting sanction is section B, the secondpartofthe EIR, and is assembled as a separate item behind section A. In section B, FAA investigative personnel also provide any opinions and feelings they have aboutthe case, evaluate the reliability ofthe evidence, and discuss any conflicting evidence in the case. They also state in this section their recommendations on sanction. (I) Statement ofcase. The statement 6fcase is a concise statement ofthe facts and alleged statutory orregulatory violations found during the investigation and a discussion ofhow those facts establish the alleged violations. The statement ofcase identifies who didwhat, when, where, why, andhow. FAA investigative personnel provide an orderly and logical statement of 8-110/01/07 2150.38 the facts necessaryto establish each elementofeach regulationbelieved violated andthe related investigative actionthatestablishedthat fact. Ifthe alleged violations involved one or a few flights, then each flight shouldbe specificallyidentified withthe aircraft, the origin, destination, place oflanding, the name ofthe pilot in command, and the reasons whytheFAAbelieves that individual wasthe pilot in command. Ifthe flight involved an unairworthy aircraft, then each discrepancy needs to be stated. Ifthe violation involvedthe failure to do something required or the doing ofsomethingprohibited, then the specific omission or commission is specifically stated. Itis usuallyhelpful tothe reader ifthe summary ofcase is organized in chronological fashion. FAA investigativepersonnel support each factual statementby referring to an item of proof. The referencetothe item ofproofappears directly after the statement it supports, unless the item ofproofsupports an entire paragraph. Ifan item ofproofsupports an entire paragraph, FAA investigative personnel reference the item ofproofatthe end ofthe paragraph. FAA investigativepersonnel may briefly describe the origin orthe basis ofthe investigation. They have latitude to go into as much detail as necessary giventhe complexity and nature ofthe particular caseto assure an understanding ofthe investigation and apparent violations. Whenthe investigation fails to establish a violation, FAA investigativepersonnel state this conclusion with an explanation ofhowthe investigation led to this conclusion.

··· (2} Factonraffectingsarrctiorr. FAAinvestigativepersonnel afialyzeWliethefeachofllie factors in chapter 7, paragraph 4 orAppendix C is relevant and applies to the case. The factors in chapter 7, paragraph 4 are the nature ofthe violation, including how safetywas affected; whether the violation was inadvertent and not deliberate;the certificate holder's level of experience; attitude ofthe violator; degree ofhazard; actiontaken by employer or other authority; the use ofthe certificate; violation history; decisional law; ability to absorb sanction; consistency ofsanction; whetherthe violation was reported voluntarily; and corrective action. The factors in AppendixC, which apply to hazardous materials cases, are found in paragraph 2 and subparagraph 6.d ofthat appendix. FAA investigative personnel address each factor in sectionB. Ifa factor is relevantto the case, FAA investigativepersonnel explain in sectionB of the EIRhowthe facts and circumstances support the applicability ofthat factor to the alleged violations. Usingthe guidance in chapter7 orAppendix C, FAAinvestigative personnel explain whetherthe factor has amitigating or aggravating effect on the amount ofsanction for the apparent violations. FAA investigativepersonnel may supporttheir analysis ofthe factors affecting sanctionwithreference to items ofproofas appropriate. Ifa factor does not apply to the case, then FAA investigativepersonnel state in sectionB thatthe factor is not applicable. In each case, FAA investigative personnel summarizeviolation history information contained in EIS records. Printouts ofviolation history from theEIS or a program office-specific database, such as the Program Tracking and Reporting Subsystem (PTRS), are not included as items of proofin section C. (3) Other information. In sectionB, FAA investigative personnel also evaluatethe reliability ofthe evidence and discuss any conflicting evidence in the case. Ifappropriate, they reference specific supporting items ofproof. FAA investigative personnel fully analyze in sectionB any explanation provided by the apparent violator aboutthe incident. Such explanation may appear in arecord ofinterview ofthe apparent violatorora response to the letter ofinvestigation. FAA investigative personnel set forth in section B any other mitigating, extenuating, oraggravating factors about the apparent violations. IfF AA investigative 8-210/23/09 2150.38 Chg 1 personnel have any opinions or feelings aboutthe case, they state them in section B and label them as opinions. FAA investigative personnel state a conclusion, a recommendation about sanction, as appropriate, and set outthe reasonsjustifYingtheir enforcement action recommendations and sanction recommendations. IfF AA investigative personnel receive any information after they forward the EIR to the nextreviewing official, they prepare an analysis and an amendmentto the EIR and forward them withthe information to thatreviewing official. Their analysis indicates whether, based onthe information, they have changedtheir conclusions orrecommendations aboutthe facts, the alleged statutory orregulatory violations, or sanction. (4) EnforcementDecisionProcess Worksheet. FAA investigative personnel include in section B ofthe EIRthe EnforcementDecision Process Worksheetprepared in accordance with the guidance in AppendixF ofthis order. (5) Regional Program Office Sanction Recommendations. Regional program office personnel making a sanction recommendation aboutthe amount ofsanction, that is number of days or dollars, that should be sought in a case, prepare a separate written statementfor such recommendation. In this written statement, Regional program officepersonnel statetheir specific sanction recommendation and the reasons supporting it. Thewritten statementis
·· · indndedtnsectionBoftb:eETR.
c. Section C. Items ofProof. Section C consists ofthe items ofproofand a numerical index ofthose items. The items ofproofconsist oforiginals or certified copies ofeach piece of evidence gatheredto prove the apparent violations. When the size ornature ofphysical evidence precludes including it inthe EIR, FAA investigativepersonnel include appropriate photographs ofsuch evidence in the EIRand an explanation ofwherethe physical evidence is located. The numerical index ofthe items ofproofprovides a briefstatementofeachitem's content. Each item ofproofis numbered consecutively. The items ofproofare listed in a logical orderto facilitate review. Each piece ofdocumentary evidence referenced in section B oftheEIR is included as an item ofproof. The items ofproofmight include records of interview, witness statements, relevant portions ofmaintenance manuals or operations manuals pertinentto the violation, aeronautical charts current on the date ofthe violation, copies of logbooks, and photographs. Printed material about violationhistory from the EIS or a program office-specific database, such as the ProgramTracking and Reporting Subsystem (PTRS) is not included as an item ofproofin section C. FAA investigative personnel summarize relevant information from such databaserecords and include it in section B ofthe EIR. 4. Preparation ofForm 2150-5.
a. EIRNnmber. FAA investigativepersonnel enterthe report number, which identifies a specific EIR, in the appropriate block on Form 2150-5. The report number is a 12-digit code consistingoftheyear, the region, the field office, and a sequential number as explained in chapter 9 (for example, 2005WPOIOOOI). The block identified as relatednumberrefers to the reportnumber for anotherEIRassociated withthe underlying incident. FAAinvestigative personnel enter the report number for the related EIR in the same code form. Ifthere is more than one related case, FAAinvestigativepersonnel select a case to be the leadcase and enterthat case as therelated EIRcase number for all related cases. 8-3