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# ° n1. I L:,.-, U.S. DEPARTMENT OF TRANSPORTATION FEDERAL AVIATIONADMINISTRATION OFFICE OF HEARINGS

WASHINGTON, D.C.
Inthe Matter ofHeloair, Inc. DocketNo. FAA-2012-0472, CaseNo. 2011-EA-210081

AGENCY'S ANSWERTO MOTIONTO DISMISS 

# RE-CEIVED SEP 102012 

## HEARING DOCKET

The Federal Aviation Administration (FAA), by counsel, hereby files its Answer to Motion to Dismiss, pursuant to Rule 13.218(d) ofthe Rules ofPractice (14 C.F.R. 13.218(d)) as follows:

In the original Complaint, it was alleged that Heloair, Inc. (Respondent) improperly installed a Garmin GPS 496 on the Bell 427 aircraft, identification number N7NU. In the Answer to the original Complaint, Respondent admits that it maintained and operated this particular aircraft. In the Motion to Dismiss, it is argued that it was not, in fact, Respondent that installed the GPS. In fact, the Agency concedes that it
was not Respondent that.performed the installation and this allegation has been withdrawn from the Agency's Amended Complaint (attached).

\ ',!'Left in the Amended Complaint, however, are the allegations that the wiring for the GPS was not properly installed and the GPS was not properly tested, and Respondent thereby performed improper maintenance on the aircraft. Also left in the Amended Complaint are the allegations that Respondent proceeded to operate the aircraft on two flights in. an unairworthy condition, even after being advised by the FAA that installation of the GPS may be contrary to the Federal Aviation Regulations.

In the Motion to Dismiss, Respondent argues that it "reasonably relied upon the expertise" of Edward & Associates, an FAA-certified repair station, for the / installation ofthe GPS. It is also claimed that Respondent relied upon the FAA, which supposedly "inspected the aircraft on numerous occasions and flew in the aircraft on numerous check flights" and neverpreviouslynotified Respondent ofany problems with the installation ofthe GPS.
Respondent, as the holder of a Part 135 air carrier, is subject to 14 CFR Section 135.413(a), which states, "Each certificate holder is primarily responsible for the airworthiness ofits aircraft, including airframes, aircraft engines, propellers, rotors and appliances, and parts, and shall have defects repaired between required maintenance under part 43 ofthis chapter." Thus, regardless ofwhether it was

2someone else who installed the GPS and regardless ofwhether the FAA overlooked the discrepancies, it was ultimately the responsibility ofRespondent to ensure that the GPS installed on the aircraft that it maintained and operated was installed properly. As alleged in the Complaint, Respondent failed in this responsibility. The fact that the FAA did ,not notify Respondent of the problems with the GPS installationpreviously is irrelevant; once the FAA discoveredtheproblem, it notified Respondent, and Respondent still insisted on operatingthe aircraft.



### In the Motion to Dismiss, it is claimed that "The installation ofthe Garmin 496 has been conducted in a similar fashion on numerous (hundreds) aircraft of various makes and models across the Country and has been approved by theFAA." There is
no evidence for this claim, however, and even ifit is true, it's not relevant as to the issue as to whether the installationwas properin this particular case, and not in other "similar" (whateverthatmeans) cases.

In the Motion to Dismiss, it is claimed that the case is stale because it was initiated
more than 2 years after the improper GSP installation. As indicated above, however, the allegation that Respondent performed the improper installation is withdrawn. As indicated in the Amended Complaint, it was actually on January 20, 2011 that the FAA discovered the improperly installed GPS. Thus, at that time, the

3violation (having the improperly installed GSP) was still ongoing and continued on August 6, 2011, when Respondent operated the aircraft on two flights in an unairworthy condition. Thus, when the Agency initiated the Notice ofProposed Civil Penalty on November 3, 2011, it was actually within less than 4 months ofthe violation and thus not stale.
Thus, theMotionto Dismiss is withoutmerit.

WHEREFORE, the FAA, by counsel, respectfully requests that the AdministrativeLawJudge denythe Motionto Dismiss in its entirety. Respectfully submitted, AlfredR. Johnson, Jr. Regional Counsel

By:

# ~~**Zachary~**an Attorney Federal AviationAdministration 1AviationPlaza Jamaica, NY 11434 718 553-3258 718 995-5699 Date: September4, 2012

4CERTIFICATE OF SERVICE I hereby certify that the foregoing Answer to Motion to Dismiss has been sent this date via first class mail and telefaxto the following: John G. Butler, III, Esq. SANDS ANDERSON, PC BabankofAmerica Center 1111 EastMain Street, Suite 2400 Richmond, VA23219 FAX: (804)783-7291 The Honorable J. E. Sullivan, AdministrativeLawJudge Office ofHearings, M-20 U.S. Department ofTransportatation 1200 NewJerseyAvenue, S.E. (El1-310) Washington, DC 20590 FAX: (2020)366-7536 I hereby certify thatthe foregoing Answer to Motion to Dismiss has been sent this date via first class mail to the following: FederalAviationAdministration (Original and one copy) 800 IndependenceAvenue, S.W. Washington, D.C. 20591 Attn: HearingDocket Clerk, AGC-430 Wilbur Wright Building-Room2014

Date: September4, 2012

# Zachary~~ Attorney FederalAviationAdministration Office ofRegional Counsel 1AviationPlaza Jamaica, NY 11434

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U.S. Department ofTransportation FederalAviation Administration September4, 2012 Eastern Region Regional Counsel Telephone: 718553-3258 Facsimile: 718**995~5699**

FIRSTCLASS MAIL AND TELEFAX (202)366-7536 TheHonorable J.E. Sullivan, AdministrativeLawJudge Office ofHearings, M-20 U.S. Department ofTransportation 1200 NewJerseyAvenue, S.E. (Ell-310) Washington, DC 20590 1Aviation Plaza Jamaica, NY 11434

Re: IntheMatterofHeloair, Inc.DocketNo. FAA-2012-0472, CaseNo. 2011-EA210081 DearJudge Sullivan:

Enclosed hereinplease find a copy ofthe FAA's Amended Complaint inthe aboveentitled action for filing, togetherwithproofofservice upontheRespondent. Sincerely, AlfredR. Johnson, Jr. Regional Counsel
By:

# ~~**Zacha~bllan** Attorney Enclosures

cc: John G. Butler, III, Esq., SANDS ANDERSON PC, Bank ofAmerica Center, Ill EastMain Street, Suite 2400, Richmond, VA, FAX: 804-783-2391 (via fax and first class mail)cc: Federal Aviation Administration, 800 Independence Avenue, SW, Washington, DC 20591, Attn: Hearing Docket Clerk, AGC-430, Wilbur Wright Building-Suite 2Wl0000 (via first class mail)

2U.S. DEPARTMENT OF TRANSPORTATION FEDERAL AVIATIONADMINISTRATION OFFICE OF HEARINGS

WASHINGTON, D.C.
In the Matter ofHeloair, Inc. DocketNo. FAA-2012-0472, CaseNo. 2011-EA-210081
AMENDED COMPLAINT The Federal Aviation Administration (FAA), by counsel, hereby files its Amended Complaint, pursuant to Rule 13.214(b)(l) of the Rules of Practice (14 C.F.R. 13.208), and states as follows: I Respondent, Heloair, Inc., was advised through a Final Notice ofProposed Civil Penalty that the FAA proposed to assess a civil penalty in the amount of$33,000. On May 9, 2012, Respondent submitted a written demand for ahearing. II

I. At all times relevant herein, Heloair, Inc. (hereinafter "Heloair'') was the holder ofPart 135 Air Carrier Certificate No. RW8A341W. 2. At all times relevant herein, Heloair, Inc., maintained and operated a Bell 427 aircraft, identification number N7NU (hereinafter "the aircraft"). · 3. At all times relevant herein, the aircraft had installed in it a Garmin GPS 496.

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### 4. The Garmin GPS 496 was aportable electronic device. 5. On or about July 20, 2011, inspectors of the Federal Aviation Administration (FAA) performed an inspection of the aircraft and the records associated with the aircraft at Heloair's principal base of operations in Richmond, VA (hereinafter "the inspection"). 6. Incident to the inspection, the FAA inspectors discovered that the wiring associated with the installation ofthe Garmin GPS 496 had not been tested in accordance with 14 CPR Section 27.1365(c). 7. Incident to the inspection, the FAA inspectors discovered that the Garmin GPS 496 had not been tested to determine that it would not cause interference with the navigation or communication system of the aircraft on which it would be used 8. Incident to the inspection, the FAA inspectors discovered that the Garmin GPS 496 was installed with unapproved wiring. 9. By virtue ofthe allegation set forth in Paragtaphs (6) through (8), above, the aircraft was not in an airworthy condition. 10. Incident to the inspection, on or about July 20, 2011, the FAA inspectors advised Heloair oftheir findings set forth in Paragraphs (6) through (8), above, and advised Heloair that installation ofthe· Garmin GPS 496 may be contrary to the Federal Aviation Regulations. 11. Notwithstanding the above, Heloair released the aircraft for return to service when the aircraft was not in an airworthy condition for the reasons set forth above. 12. Heloair thus performed maintenance on an aircraft and failed to use the methods, techniques, and practices prescribed in the current manufacturer's maintenance manual or Instructions for Continued Airworthiness prepared by its manufacturer, or other methods, techniques, and practices acceptable to the Administrator, except as noted in §43
.. 16. 13. Heloair thus performed maintenance on an aircraft and failed to do that work in such a manner and use materials ofsuch a quality, that the condition of fJle aircraft, airframe, aircraft engine, propeller, or appliance worked on would be at least equal to its original orproperly 4altered condition (with regard to aerodynamic function, structural strength, resistance to vibration and deterioration, and other qualities affecting airworthiness). 14. On or about August 6, 2011, Heloair operated the aircraft on two flights, from Richmond, VA to Irving, VA, and return (hereinafter "the flights"). 15. During the flights, the aircraft was in an unairworthy condition, as described above. III Byreason ofthe foregoing facts and circumstances, Respondent violated the following sections ofthe Federal Aviation Regulations:
a. Section 43.13(a), which states that each person performing maintenance, alteration, or preventive maintenance on an aircraft, engine, propeller, or appliance shall use the methods, techniques, and practices prescribed in the current manufacturer's maintenance manual or Instructions for Continued Airworthiness prepared by its manufacturer, or other methods, techniques, and practices acceptable to the Administrator, except as noted in §43.16. He shall use the tools, equipment, and test apparatus necessary to assure completion ofthe work in accordance with accepted industry practices. If special equipment or test apparatus is recommended by the manufacturer involved, he must use that equipment or apparatus or its equivalent acceptable to the Administrator. b. Section 43.13(b), which states that each person maintaining or altering, or performing preventive maintenance, shall do that work in such amanner and use materials ofsuch a quality, thatthe condition of the aircraft, airframe, aircraft engine, propeller, or appliance worked on will be at least equal to its original or properly altered condition (with regard.to aerodynamic function, structural strength, resistance to vibration and deterioration, and other qualities affecting airworthiness).
c. Section 91.7(a), which states that no person may operate a civil aircraft unless it is in an airworthy condition. 5

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d. Section 91.21(a)(l), which states that noperson may operate, normay any operator or pilot in command of an aircraft allow the operation of, any portable electronic device on aircraft operated by a holder ofan air carrier certificate oran operating certificate.

IV

Pursuant to 49 U.S.C. §46301(a)(l), Respondent is subject to a civil penalty not to exceed $25,000 for each ofthe violations alleged, or, for a small business concern, pursuant to 49 U.S.C. §46301(a)(5), Respondent is subject to a civil penalty not to exceed $11,000 for each ofthe violations alleged. 2. Under the facts and circumstances of this case, a civil penalty of $33,000 is appropriate.

WHEREFORE, the FAA, by counsel, respectfully requests that the AdministrativeLawJudge enter an orderthat Respondent be assessed a civilpenalty

6in the amount of$33,000. Respectfully submitted, Alfred R. Johnson, Jr. Regional Counsel

By:

# ~~ Zachary

### ~flllan Attorney Federal AviationAdministration 1AviationPlaza Jamaica, NY 11434 718 553-3258 718 995-5699


### NOTE: 

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The Rules of Practice for this proceeding are set forth in Part 13, SubpartG, oftheFederalAviation Regulations (14 C.F.R. Part 13). The Rules of Practice provide that Respondent must file a written answer to this Complaint, or a written Motion to Dismiss if appropriate, not laterthan 30 days afterthe date shown on the Certificate ofService. A general denial is deemed a failure to file an answer (Section 13.209(e)).

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CERTIFICATEOF SERVICE I hereby certifY that the foregoing Amended Complaint has been sent this date via tirst class rna:

### 1andtelefaxto the following: John 

### G. But·er, 

### III, Esq. SANDS 1\.r iDERSON, PC Babankc ;America Center 1111 EastMain Street, Suite 2400 Richmond, VA 23219 F**·~** : (804)783-7291 The Honorable J. E. Sullivan, Administrative LawJudge Office ofHearings, M-20 U.S. Department ofTransportatation 1200NewJersey Avenue, S.E. (Ell-310) Washington, DC 20590 FAX: (2020)366-7536 I hereby certifY that the foregoing Amended Complaint has been sent this date via first class mail to the following: Federal Aviation Administration (Original and one copy) 800 IndependenceAvenue, S.W. Washington, D.C. 20591 Attn: HearingDocket Clerk, AGC-430 WilburWrightBuilding-Room2014

Date: September4, 2012 Attorney FederalAviationAdministration Office ofRegional Counsel I AviationPlaza Jamaica, NY 11434

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