Zachary M. Berman, Attorney Federal Aviation Administration Office ofthe Eastern Regional Counsel I Aviation Plaza Jamaica, NY 11434 April3, 2014

RE: Endless Mountains Air, Inc. Docket No. FAA-2013-0848 Case No. 20!2EA050008

Dear Attorney Berman, 

### SeamansAirport 727 Windsock Lane Factoryville/ PA 18419

Phone: 570.945.5125 Fax: 570.945.5953 http:/ jwww.seamansairport.com 

# RECEIVED

APR -8 2014 

## HEARING DOCKET

Following up on our Rule 16 Litigation Conference on March 18,2014 with Judge J.E. Sullivan, I submit the following response to the allegations and penalty outlined in the FAA's Motion for Decision. Regarding the charges that Endless Mountains Air, Inc. violated the oral and flight test requirements set forth in Section 135.293(a) ofthe Federal Aviation Regulations, these violations
were technical, were not intentional and never compromised the safety ofthe flights and our passengers.
Let us review the following facts and my explanations related to the above charges:

On July 7 and July 22, 2010, Mr. Randy Palmer successfully passed oral and flight checks given by Mr. Robert Ference and another safety inspector from ofthe Allentown Flight Standards District Office (FSDO).

OnAprilll, 2011, Mr. Palmer successfully passed both an oral and flight check given by Mr. Ference ofthe Allentown FSDO.

Toward the end ofAugust 2011, Mr. Palmer and I were unsure as to whether Mr. Palmer was due for an oral and flight check in our Cirrus SR20 aircraft so that we could continue to operate under Part 135 regulations. After reviewing Mr. Palmer's previous Airman Competency/Proficiency Check forms along with FAR's 135.293 and 135.297, we believed an oral/flight check would not be necessary until after October 31, 2011. We did however want to be sure ofour interpretation therefore, Mr. Palmer reached out to Mr. Ference and left numerous

### telephone messages. Mr. Pahner did receive a return call/voicemail from Mr. Ference on August 29, 2011 and his response was "check your paperwork".

Mr. Palmer and I again reviewed his previous competency/proficiency check forms and the actual oral questioning and flight maneuvers that were done along with the FAR's. My understanding ofthe regulations at that time was such that Mr. Palmer required the same oral and flight check every 6 months and that his April 11, 2011 check ride had complied with that requirement. We both thus concluded that he was indeed legal to fly and we would be in compliance with his oral/flight check requirements for another two months until month end October 20II.

As stated inthe complaint, Endless Mountains Air, Inc. with Mr. Randy Palmer as pilot did then make six flights under Part 135 regulations betweenthe period ofSeptember 1st and October 9, 2011.

InNovember 2011, Mr. Harry Soudas ofthe Allentown FSDO conducted a paperwork inspection ofour charter operation, made copies oftrip logs associated with the flights in question and stated that he would be in touch regarding a potential violation ofregulations.

On January 2, 2012, we received a letter from the Allentown FSDO advising us that we had violated FAR's 135.293 and 135.299 and that we could either respond in writing or request a conference. We promptly requested and scheduled a conference.

Our conference was held on January 18,2012 at the Allentown FSDO with Mr. Ference, Mr. Soudas and Mr. Brandon Ghidiu. Atthat meeting, Mr. Palmer and I explained that we had reviewed his previous competency/proficiency check forms along with FAR's 135.293 and 135.297 and concluded that we would be in compliance. We additionally pointed out that as per FAR 135.293( c) "The instrument proficiency check required by 135.297 may be substituted for the competency check required bythis section for the same type ofaircraft used in the check". This paragraph gave us confidence that Mr. Palmer's April 11, 2011 oral and flight check was sufficient to comply with the requirements ofPart 135.293.

Mr. Ference and Mr. Soudas explained to us in detail how Parts 135.293, 135.297 and 135.299 should be interpreted. In particular, they explained how Part 135.293 establishes a 12 month oral and flight check which sets what they refer to as a "base month", how 135.297 requires a 6 month oral and flight check and how FAR 135.293(c) does not allow a FAR 135.297 oral and flight checkto be used as a substitute for an FAR 135.293 flight check. We let them know that
we now fully understood these regulations and told them that this error would not happen again. I followed this up inwriting on January 31,2012 and thought that the case was closed. Unfortunately, about a month later Mr. Pahner and I received notification ofthis enforcement that I am currently fighting.

In addition to the above, I have had an informal conference with you on June 21, 2012 and have also provided federal tax 

### returns and other financial information. This information demonstrated that any fine would be an extreme hardship and Endless Mountains Air, Inc. would likely have to file for bankruptcy. Unfortunately, the attempt at reliefwas also denied.From the above narrative, it is clear that:
1) Endless Mountains Air, Inc. (EMA) strongly believed at the time ofthe alleged violations that it was adhering to the word ofthe applicable regulations.
a. Afterreviewing previous competency/proficiency check forms along with applicable FAR's, Endless Mountains Air, Inc. and Mr. Pahner understood itthat Mr. Palmer was legal to make the charter flights in question. b. Additional interpretation and clarification was sought with Mr. Ference ofthe Allentown FSDO. Unfortunately, little guidance was received.
c. Based on the information and our interpretation, EMA decided that it would be in compliance with regulations and operated during the time in question.
2) 

### IfEMA had intentionally disregarded regulations, it would not have completed or kept any paperwork associated with these flights. Why would EMA keep a paper trail for unlawful charter flights? Clearly, any paperwork would have been absent for an FAA inspection had we intentionally violated FAA regulations.
3) EMA has been a Part 135 charter operator since 2003 and has not had any other enforcements or violations.
4) Pilot Mr. Palmer did not have any prior enforcements or violations onhis record.
5) EMA has been cooperative and has shown good faith throughout:
a. Immediately after we were made aware ofpossible violations, we met as soon as possible with the Allentown FSDO for an explanation ofour mistake and instruction inthe regulations. We dealt with the issue right away and assured corrective action. b. We later met with Mr. Berman at the Eastern Region Office to state our case and seek a resolution ofthis enforcement action.
c. The FAA's ownreport on the case states that I have "been cooperative with this investigation and his company has no prior violations, he has expressed remorse for these violations occurring. This would make this inadvertent".
6) Over the past 15 years, Mr. Randy Palmer has taken approximately two dozen, Part 135 competency/proficiency checks under Part 135.293 and 135.297 with EMA and another local charter operator and 

### in his own words, he has "never been able to differentiate one from the other".
7) At NO TIME did Endless Mountains Air operate unsafely. Bear in mind that Mr. Palmer did receive and successfully pass an oral and flight check less than six (6) months prior to these flights.

I submit to youthat at the end ofthe day, this was a technical error and nothing more. In addition, a $46,200 fine is completely unwarranted, extremely excessive and payment would result in Endless Mountains Air, Inc. having to cease operations. Please also remember that I have made every effort to learn from this and make sure this never happens again.



### 1n closing, I would like to refer you to the attached article written by then Flight Standards Director John Allen in the July/August 2012 issue ofthe FAA's publication Flight Safety

### Briefing. His piece was written during the time both Allentown and your office were reviewing my case and moving forward with enforcement and penalties. The piece is exceedingly appropriate to this case and while I'm sure you'll read it through, I'd like to draw particular attention to the final paragraphs inhis article.

Mr. Allen writes that 

### "The FAA has a wide range of tools toperform thefunctions associated with continued operational safety. Because enforcement is the most obvious tool, it is often the first to be used. My message to the FAA 's inspector workforce, though, is that enforcement may not be the most effective means ofachieving compliance and, more importantly, itmay not be the best way to achieve our goal of promoting safety. Infact, I believe that an enforcement-only approach is counterproductive. It obscures the goal of achieving safety compliance. It misses opportunities to educate. It undermines efforts to develop a strong safety culture. It wastes FAA and industry resources. And it dilutes our ability tofocus on real risk.
My staff is working on updatedguidance for our inspectors that outlines a more thoughtful approach. The key question is what best serves our safetypromotion goal. Enforcement should be reserved for events and incidents where intentional disregard,flagrant safety violations, dangerous complacency, or outright stupiditypose a systemic threat to continued operational safety in aviation. For an unintentional infraction, I want inspectors tofirst seek resolution via positive, corrective action that most likely would include additional education andskills training".

Without a doubt, our technical violation was not intentional, nor a flagrant safety violation, nor showed dangerous complacency, or outright stupidity, nor did itpose a systemic threat to continued operational safety.

It is myhope that both your office and the Allentown FSDO will again review the facts and circumstances relating to this case, take note ofMr. Allen's wise words and sensible guidance and come to the conclusion that this case has already gone too far and should be dismissed.

Ifyou have any questions;please feel free to contact me at any time. ,_,,!"'**,~** Sincerely,

I 

## ,/LJ/ // ', / ' W'il}iam 

### J. Dobitsch, Jr., President EIJI1less Mountains Air, Inc. l

# Adventure, Commerce, andService

We live in a complexworld, and there's not muchwe can do to change thatreality. Butwhenit
comesto suchbasic thlngs as ourmission statement, short, sweet, and simple is the onlywayto go. That's whyI pushed for adoption ofa newFlight Standards Service mission statement, onethat explains the what, the why, and the who ofwhatwe do in a way that everyone caneasilyremember. Our mission is: To assure the safety, while enabling the adventure, commerce andservice of aviation. For me, and I hope for you, this simple statement captures the essence and the heart ofwhat the FAA Flight Standards Service is chargedto do. Butlet me take a momentto talk about the individual elements. Adventure:Aviation is very much about adventure, and abouthavingftm- thefocus ofthis issue ofFAA SafetyBriefingmagazine. Much of whattheFAA does is necessarily associatedwith commercial aviation,
so I put "adventure" right atthe beginning ofthe mission statement. I wanttobe sureweremember that enablingthe ftm, adventure, andpassion of personalflying is also animportantpart ofthe FAA's aviation safetymission.
Commerce: The FAA's missionwithrespectto commercial aviationis betterknown, and understandably
so. Civil aviation contributes $1.3 trfllion to our economy and generates morethan 10 millionjobs in theUnited States alone. Millions ofpeopletravel by air each day, and theworkwe do contributes to making our aviation systemthe envy oftheworld. Service:Aviation serves not only ournation's economy, but also theAmerican spirit ofservice and volunteerism. Our safetywork enables and facilitates thekind ofservice performedthrough programs like BAA's Young Eagles, Grace Flight, Pilots 'nPaws, and

numerous others. Safety:Assuring safetymight seemtobe the most obvious componentofourmission statement, but I wantto spend a little more time explainingthe
nuances ofour safetyrole. The Flight Standards Service has three main safetyfunctions: settingthe certification standards for airmen and operators; issuing certificationbased

onthose standards; and conducting oversight and surveillance ofcertificate holders to assure continued operational safety. Though theFAA clearlyhas a significant role in assuring continued operational safety, everyone bearsthat responsibility.**The}<~** cannot "inspect safetyinto the system:' Itis the duty ofeachindividual and each organizationthatwe certificate to operate in accordance with the established standards. The agency's role is to verifythat certificate holders continueto meet standards. The FAA has a widerange oftools to perform the functions associatedwith continued operational safety. Because enforcementis the most obvious tool, it is often the first to beused. Mymessage to the FAA's inspectorworkforce, though, is that enforcement maynotbe the most effective means ofachieving compliance and, moreimportantly, itmaynotbe thebestway to achieve our goal ofpromoting safety. Infact, I believe that an enforcement-only approach is counterproductive. It obscuresthe goal ofachieving safety compliance. Itmisses opportunities to educate. It undermines effortsto develop a strong safety culture. Itwastes FAA and industryresources. And it dilutes our ability to focus onreal risk. My staffis working onupdated guidancefor

ourinspectors that outlines a more thoughtful approach. The key question is whatbest serves
our safetypromotiongoal. Enforcement shouldbe reserved for events andincidents whereintentional disregard, flagrant safetyviolations, dangerous complacency, or outright stupiditypose a systemic threatto continued operational safety in aviation. For anunintentionalinfraction, I wantinspectors to first seekresolutionviapositive, corrective action that mostlikelywould include additional education and skills training. Thankyou for thepassionyou have for aviation safety, and for helpingtokeep the adventure, commerce, and service ofaviation alive andwell.

July/August 2012 Safety

### SERVICE LIST- BY U.S. 

### MAIL
ORIGINAL & 

### ONE COPY

Federal Aviation Administration 800 Independence Avenue, S.W. Washington, DC 20591 Attention: Hearing Docket Clerk, AGC-430 Wilbur Wright Building- Suite 2WI0001



### Mr. Zachary M. Berman Complainant's Counsel 

### ONE COPY

Office ofRegional Counsel, Eastern Region Federal Aviation Administration 1 Aviation Plaza Jamaica, NY 11434 TEL: 718-553-3258 FAX: 718-995-5699

Mr. William J. Dobitsch, Jr. Endless Mountains Air, 

### Inc. Respondent Seamans Airport 727 Windsock Lane Factoryville, PA 18419 TEL: 570-945-5125 FAX: 570-945-5953

Judge J.E. Sullivan U.S. Administrative Law Judge Office ofHearings, M-20 U.S. Department ofTransportation 1200 New Jersey Avenue, S.E. (E11-310) Washington, DC 20590 TEL: 202-366-6941 FAX: 202-366-7536