UNITED STATES DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

WASHINGTON, DC 

In the Matter of: Helicopter Fiite, Inc. JUL | 3 ^flfj 

FAA Order No. 2011-6 

Docket No. CPO9EA0015 

FDMS No. FAA-2009-0579 

^^^^i^im DOCKET 

: • _ ^ •• • ^ M^^ ^ 

PETITION TO MODIFY FAA ORDER NO. 2011-6 - o^^ ^ 

The Complainant, pursuant to 14 C.F.R. Section 13.234, files its Petition to. XI $^^ . 

Modify FAA Order No. 2011-6. As explained below, Complainant requests that the xjo co 

cr 

Order be modified to find a violation of section 135.25(b). Complainant is not-seeking 

modification of the Order with regard to the Decisionmaker's finding that no civil penalty 

should be imposed in these circumstances, but does request that the Order be clarified so 

that the Order not be read as precluding imposition of a civil penalty in an appropriate 

case even if there is no evidence that a carrier has operated during the time it had no 

exclusive-use aircraft. 

In support of its petition, Complainant highlights certain passages that appear to 

be conflicting. Specifically, on page 2 of the Order, it states: 

After consideration of the record and the briefs, it is held that in the absence of 

evidence of operation, a certificate holder cannot be found to have violated 

Section 135.25(b). Consequently, the FAA failed to prove that Helicopter FJite 

violated Section 135.25(b) because the FAA did not introduce any evidence that 

Helicopter Flite or any other entity operated the helicopter in question after the 

helicopter was sold. 

Yet on pages 9 and 10 of the Order, it states: 
...The FAA did prove that Helicopter Flite did not have exclusive use of the only 

aircraft listed on its operations specifications between February 22, 2008, and 

September 15, 2008. 

However, it makes no sense to enforce this requirement by imposing a civil 

penalty unless there is evidence that the certificate holder continued to operate 

during the time period that it did not have exclusive use of at least one aircraft, ff 

there is no implicit operation requirement, then, for example, the FAA could 

assess a civil penalty once a certificate holder's exclusive use aircraft was 

destroyed by a fire or natural disaster. Likewise, a certificate holder would not be 

able to sell its exclusive use aircraft and use iheproceeds to purchase another, 

"aircraft Without being inviolation ofSection-l-35;25(b): -~ -

The FAA did not introduce any evidence to show that Helicopter Flite operated 

any aircraft after the sale of N407Z. 

The language on page 2 seems to. be a holding that, in fact, the FAA failed to 

prove that Helicopter Flite violated the cited regulafion.' Yet the language on pages 9-10 

seems to be a holding that — although the FAA proved that Helicopter Flite did not have 

e.Kclusive use of the only aircraft listed as exclusive-use in its operations specifications — 

then, as a matter of enforcement policy, it would "make[] no sense" to enforce the 

requirement unless the part 135 operator actually conducted a part 135 operation during 

the time that it did not have an exclusive-use aircraft. In other words, on the one hand, 

the Order seems to state that there was no violation (page 2) at all, but on the other hand, 

it seems to suggest (pages 9-10) that there was a technical violation - but noting that a 

technical violafion could arise through no fault of an operator due to a fire or other 

' Reading Helicopter Flite, Inc.'s Appeal Brief in the broadest sense possible, while it appears that it 

challenged whether it violated the regulations, that challenge was based solely on the absence of a specific 

sanction type or civil penalty amount listed in FAA Order 2150.3B for noncompliance with Section 

135.25(5). FAA Order 2150.38 does not provide specific guidance on each type of potential regulatory 

violation or the type of enforcement action to be .sought. And, the FAA Decisionmaker did not base his 

decision on the absence of specific sanction guidance regarding Section 135.25(b). Notably also, 

Helicopter Flite, Inc. did not argue on appeal that absent a showing - that someone else operated the 

exclusive use aircraft or absent a showing that Heh'copter Flite only operated nonexclusive use aircraft — 

meant that no violation occurred. Neither did Helicopter Flite, Inc. specifically argue that even if there was 

a violation, no c'wil penalty should be imposed. Instead, it requested that the civil penalty should be -

reduced to something more reasonable. Thus, this is Complainant's first opportunity to address the legal 

analyses (in terms of whether there was a violation of Section 135.25(b) or in terms of sanction policy for a 

Section 135.25(b) charge) set forth in the Decisionmaker's Order in this matter. 
natural disaster. And, it seems to hold that the FAA must prove that the Respondent 

carrier actually operated, in part 135 operations, a nonexciusive-use aircraft during the 

period when it had no exclusive-use aircraft in order to impose a civil penalty. See FAA 

Order 2011-6 at pp. 9-10. 

However, this raises a second area of confusion. The second sentence in the 

above-quoted language from page 2 of the Order seems to state that the FAA can prove a 

violafion of 135.25(b) when the aircraft "in question" (i.e., the listed exclusive-use 

aircraft) is either operated by the Respondent carrier or by another operator. We do not 

believe that the FAA Decisionmaker intended to suggest that one of the necessary 

elements of a Section 135.25(b) violation is that the actual aircraft "in question" (i.e., the 

aircraft listed in the opcrafions specifications as the "exclusive-use" aircraft) was 

operated by the Respondent carrier or by another operator. Whether the listed exclusiveuse aircraft is operated or not.by anyone is not relevant to whether the Respondent carrier 

had an exclusive-use aircraft in its exclusive possession and control for the requisite 

period. However, we agree that the use of nonexclusive use aircraft by the Respondent 

carrier itself, during a period when it no longer had an exclusive-use aircraft, might be 

relevant to whether enforcement action should be taken or not and might be relevant as to 

the nature of the enforcement action (e.g., certificate acfion versus civil penalty). 

A third area of confusion arises from the above-quoted language from pages 2, 9 

and 10. One could read FAA Order 2011 -6 to be more of a sanction-guidance holding 

^ Clearly, use of the listed "exclusive-use" aircraft by someone other that the pari 135 carrier would be 

evidence that the part 135 carrier did not have exclusive use of the aircraft, but that is not the only way to 

establish a lack of use-exclusivity. Contract provisions regarding the aircraft could be written in such a 

way to establish that someone, other than the part 135 carrier, had the right to use the aircraft during the 

six-month period. In fact, the Decisionmaker, in FAA Order 2001-6 at footnote 8, questioned whether the 

contractual provision in this case met the use-exclusivity requirements of Section 135.25(c). 
than a holding on the circumstances in which there is a violation of Section 135.25(b). 

The above-quoted language fi-om page 9 of the Order regarding whether it makes sense or 

not to impose a "civil penalty" could be read as guidance on when to penalize someone 

with a civil penalty as opposed to other types of enforcement action not specifically 

mentioned in the Order - like "remedial" certificate action, which is taken by the FAA 

even in circumstances where a Respondent, even through no fault of its own, is not in 

compliance or is no longer expected to be in compliance with safety regulations. 

The three areas of confusion in the Order may have arisen by the bottom-line rub 

of this case, namely whether imposition of a civil penalty in this case was considered 

appropriate even if there was noncompliance with section 135.25(b). As will be 

discussed in greater detail below, although compliance or noncornpliance with section. 

135.25(b) is a fairly straightforward issue, it is a different issue, perhaps more difficult, to 

decide, in the public interest, when to take enforcement action and what kind of 

enforcement acfion is appropriate. 

Finally, perhaps another underlying difficulty in regard to this safety regulation is 

that ~ in the absence of the operation of any aircraft (whether it is the operation of the 

listed exclusive use aircraft or whether it is the operation of only nonexclusive use 

aircraft) - it is not readily obvious why the FAA, and its predecessor agencies, decided 

thai safety in air commerce required the adoption of this type of regulation. The nexus to 

aviation safety (e.g., in terms of crash avoidance or injury/death avoidance or property 

damage avoidance) is usually readily apparent in most safety regulations. In many 

respects — as wilJ become more apparent after a review of the regulatory historj' for 

exclusive-use aircraft regulations, FAA responses to petitions for exemption and a 
reiafively recent FAA rule that has similar safety rafionale and goals - Section 135.25(b) 

can have a prophylactic safety effect when used to deny fty-by-night applicants for a part 

119 certificate to conduct part 135 operations and Section 135.25(b) can serve as an 

early-warning system that an existing part 135 operator that has no exclusive-use aircraft 

might have problems conducting a safe and compliant part 135 operation. Under either 

safety theory, certificate action could be warranted to protect the public interest, and the 

agency's historical interpretation and application of that regulation has not requned that 

the agency show that the part 135 operator conducted operations with nonexclusive use 

aircraft during the period when the part 135 operator had no exclusive use aircraft. 

Turning to the regulatory history of exclusive-use provisions, it appears that as 

early as 1949, the United States imposed an exclusive-use requirement on some air 

carriers. On November 22, 1949, the Civil Aeronautics Board [CAB] issued several nonofice final rules, policies and interpretations based on a finding that it would 

impracficable and contrary to the public interest to delay the effectiveness of the new 

rules, policies and interpretations. Among other things, the CAB wrote the following: 

Exclusive use (C/IA policies which apply to Section 42.11) When large aircraft 

are operated under the terms of an irregular air carrier operating certificate, the aucarrier shall own or have the exclusive use of at least one such aircraft. In other 

words, the air carrier shall have the sole possession, control and use of such 

aircraft for a definite and reasonable period of fime. The minimum duration of a 

lease which meets the above requirements will be for a period of 60 days. The 

basic principle determining what constitutes a reasonable period of time is that 

which will enable the Administration to perform its enforcement ftinctions. 

Accordingly, if the circumstances warrant, a lease of more than 60 days duration 

may be required. 

14 CFR§ 42.11-1 (1949). See 14 Fed. Reg. 7032-7033 (November 22, 1949). 
In 1950, the CAB stated that; 

"...[the Administrator of Civil Aeronautics advised] with the limited staff 

available for administration and enforcement of safety standards applying to air 

carriers and commercial operators operating large aircraft the Administration is 

unable, under the current provisions of Part 42 and the practices herewith 

described, to take all necessary and desirable measures to assure the attainment of 

the required safety standards by all such operators. 

These amendments herein adopted are intended to focus responsibility for 

maintenance and operation by requiring an operator of large aircraft to have 

exclusive operational control of all such aircraft used in his business for a period 

of at least six months. Heretofore, an operator who had such control of one 

aircraft could use any additional aircraft, provided, if a large aircraft, that it was 

listed in the air carrier operating certificate and at the time of such listing was 

found safe for the service to be offered. However, where such an aircraft is listed 

in the opei'ating specificafions of more than one person, as is often the situation, 

we are advised that it is practically impossible m many cases to fix responsibility 

fairiy for poor maintenance or other airworthiness deficiencies. To support 

administration of existing requirements, tlie regulation hereby promulgated 

provides that no large aircraft may be listed simultaneously in the air carrier or 

commercial operating certificate of more than one air carrier or commercial 

operator, and that when the operator, ceases to have exclusive operational control 

of any large aircraft he shall report such fact to the Administrator so that the 

aircraft my be removed from his operating specification. 

This regulation further provides that all air carrier operafing certificates and 

commercial operator certificates issued prior to July 1, 1950, shall expire no later 

than June 30, 1951, and that all certificates issued after July 1, 1950, shall be 

limited in duration to one year. This provision is designed to provide a specific 

recurrent period for proving qualification for an operating certificate. Such a 

provision isdeemed necessary, in view of the fact that experience has shown that 

operators who safisfactorily show their ability to perform air carrier operations 

safely at the time of original issuance of an operating certificate often fail to 

maintain the necessary facilities and personnel thereafter. In order to permit the 

Administrator to cope with the recurrent inspection burden created by this 

provision by distributing such burden over the entire year, we are providing that 

he may immediately initiate his reinspecfion program for renewal of air carrier 

operating certificates rather than wail until the end of this year. 

15 Fed. Reg. 4263 (July 1, 1950). 
7 

It is interesting to note, that the Government's actions in 1949 were limited to 

requiring one exclusive use large aircraft for at least 60 days, while in 1950 the 

requirement was extended to provide that aH large aircraft used by an irregular air carrier 

or commercial operator had to be in the exclusive use and control of that certificate 

holder for a period of at least six months. The common safety thread running through 

these two actions was the view that Government safety oversight, which was and is in the 

public interest, would be thwarted in the absence of such regulafions. Implicit, if not 

explicit, in the statements issued in 1949 and 1950 was that there was a compelling public 

interest to not merely rely on the good intentions or representations or assurances made 

by already-certificated air carriers and commercial operators, but that there was great 

value in having independent, tax-payer-funded Government-employee inspections of the 

aircraft and operafions of such air carriers and commercial operators. 

Even though the Government eventually dropped the requirement that all large 

aircraft had to be in the exclusive use of air carriers, the requirement that operators large 

aircraft had to have at least one exclusive use aircraft was carried forward and made 

applicable to part 121 supplemental operators, pursuant to former 14 CFR § 121.155 until 

the early 1980s. See, e.g., 46 FR 9868 (January 29, 1981) for the FAA NPRM proposing 

to eliminate section 121.155. 

In regard to the current section 135.25(b) requirement imposed on part 135 

operators, there is regulatory history and exemption history that helps to fi-ame not only 

how this type of regulation (which would include former section 121.155) has been 

interpreted over the years, but also the safety bases for maintaining a requirement for at 

least one exclusive use aircraft for part 135 operators. 
In 1973, in response to a letter from the attorneys for Executive Air Fleet 

Corporafion (EAF), the FAA interpreted the applicability and meaning of then secfion 

121.155 regarding the exclusive use requirement for all aircraft used by part 121 

supplemental operators. EAF staled that 4 of its clients wanted to give E.AF exclusive 

control of their aircraft when EAF used such aircraft on EAF charter flights, but that the 

clients would have access and use of the aircraft during other times for part 91 flights. 

The FAA opined that such an arrangement would mean that "... EAF would not have 

sole possession, control, and use of the aircraft during the period of the written 

agreement..." and thus, EAF "... would not have 'exclusive use' of the subject aircraft 

within the meaning of section 121.155." See Attachment 1. Nothing in that 

interpretation suggests that in order for the FAA to prove that the exclusive-use provision 

has been violated is if the FAA proves that carrier operated nonexclusive use aircraft. 

In fact, in an FAA response to Congressman Parren J. Mitchell, on July 13, 1977, 

it is made quite clear that the exclusive use provisions in the safety rules can be violated 

when a carrier conducts no operations whatsoever. Aire Cardinal International was a part 

121 carrier that lost exclusive control of its two DC-8 ahcraft, lost several required ftillume persormei and ceased operating. As a result, in January 1977, the FAA issued a 

Notice proposing to revoke Ahe Cardinal's Commercial Operator certificate, for . 

violating the then section 121.155 and then section 121.59(a). Aire Cardinal tried to 

minimize its violation of the regulations by labeling them "technicalities". The FAA 

disagreed with labeling the violations as "technicalities" and wrote: 

The requirement for a commercial operator to have exclusive use and control of at 

least one aircraft focuses the responsibility upon the operator — to the exclusion 

of all others — to assure that the ahcraft receives proper maintenance and is kept 

in an airworthy condition. The requirement for a commercial operator to retain 
key management and operations personnel as full-time employees guards against 

the use of untrained and inexperienced management officials who have not been 

determined qualified to make important safety judgments. We view these 

regulatory requirements as paramount safety considerations ftilly consistent with a 

commercial operator's legal obligafion to condiict operafions with the highest 

degree of safety. 

FAA Letter to Congressman Mitchell, dated July 13, 1977 at page 2. Attachment 2. 

The letter to Congressman Mitchell is mstructive for a number of reasons. First, it 

makes clear that the exclusive use rule could be violated even when the operator 

conducted no operations. Second, nothing in the letter indicates or suggests that the two 

former "exclusive use" aircraft (i.e., the two DC-8s) were actually used by anyone after 

Aire Cardinal lost die aircraft and nothing in the letter suggests that establishment of a 

violation of former section 121.155 was dependent on a showing that someone actually 

flew those aircraft after Aire Cardinal lost use of the aircraft. The third way the letter was 

instructive was that its whole tenor was not that this carrier needed to be punished (even 

though the agency characterized the situation as a "violation" of section 121.155) or that 

this carrier would never be able to return to compliance and thus avoid the revocation of 

its certificate. In fact, the FAA clearly stated that if the carrier got an exclusive use 

aircraft, the certificate action would be dropped. 

Additionally, former section 121.155(c) itself is somewhat instructive on the type 

of remedy that should be sought when an operator does not meet the exclusive use 

provisions of the safely rules. Former section 121.155(c) specified the following: 

A supplemental air carrier or commercial operator that does not have exclusive 

use of at least one aircraft does not meet the requirements of this part, and the . 

Administrator may, in an appropriate case, suspend or revoke the supplemental air 

carrier's or commercial operator's certificate. 
10 

This former secfion, taken together with the analysis in the Letter to Congressman 

Mitchell, illustrates that a violation or noncompliance with exclusive-use provisions --

should probably result in the potenlia! remova} of the certificate. The secfion. itself is 

written with the expectation that the FAA would use good judgment. In regard to the 

exercise of prosecutorial judgment, we submit that in some circimistances, if the loss of 

the exclusive use aircraft is temporary, then no certificate action would necessarily be 

warranted - even if the part 135 operator confinues operations with nonexclusive-use 

aircraft.^ hi other cases, it might be appropriate to suspend, pending compliance with the 

exclusive use provisions, the part 119 certificate. In other cases, where, for example, the 

operator has not conducted any operation for quite some time or where the operator has 

not had an aircraft that meets the exclusive use requirements for quite some time, then the 

appropriate remedy to protect the public interest in meaningful FAA oversight of the 

operator's maintenance program and in the efficacy of the FAA's safety inspector work 

force, might well be the revocation of the certificate. 

The idea of requiring that part 135 operators have at least one exclusive use 

aircraft was discussed in the 1978 final rule wherein Section 135.25 was adopted. In the 

section-by-section analysis of the Final Rule, the FAA noted that two conmienters urged 

that part 135 operators should have exclusive use of each aircraft used in their operafions. 

In rejecting that suggestion, the FAA stated that the rule adequately ensures proper 

control over maintenance and also is sufficiently flexible. The FAA also stated that: 

•' For example, as noted in FAA Order 2011-6, if the exclusive-use aircraft was destroyed in a storm or if it 

was sold in order for the operator to get funds to purchase or lease another aircraft that would meet the 

requirements of Section 135.25, then in appropriate circumstances, it could be appropriate for the FAA to 

wait a reasonable period for the carrier to return to compliance. 
11 

An applicant or a certificate holder should reasonably expect to either own or 

have exclusive use of at least one aircraft and the rule provides positive control 

for both operation and maintenance of the aircraft. 

43 FR 46742 at p. 46763 (October 10, 1978). 

In 1981, Executive Air Fleet Corporafion sought an exempuon fi'om section 

135.25. Thepefition for exemption was published for public comment. One commenter 

stated the following: 

This industry has been plagued with temporary operators who decide to help 

defray expenses on aircraft or provide employment for out-of-work pilots by 

getting into the air taxi business for short periods of tune. Requiring that at least 

one aircraft be exclusively available for charter use is one means or requiring a 

commitment to the air taxi business that undoubtedly prevented the existence of 

even more short-term air taxi operators. 

The level of inspection and surveillance of someone m and out of the air taxi 

business over a short period of time cannot be as comprehensive as it is for the 

continuing, full-fime operators the local FAA offices have dealt with over a 

period of time; hence, the possibility of alower level of safety for those operators 

exists. 

In denying the petition for exemption, the FAA stated: 

Based upon a review of the facts presented and in light of the comment received 

[italicized emphasis added], the FAA believes that the aircraft requirement in Part 

135 provides a stable base for certification. At the present time, as many as 100 

operators go out of business monthly, with about the same number apply for new 

certificates. 

This aircraft requirement has been in existence since 1949, and the industry has 

voiced no objection to the rule. In the revision to Part 135 in 1977, only a few 

comments were received requesfing a change. 

From a safety standpoint, the rule provides proper control over operations and 

maintenance for one aircraft. Executive Air Fleet Corporafion argues that this 

does not accomplish that purpose. The FAA maintains that by requiring 

ouTiership or leasing of one aircraft, an applicant will hesitate before making 

application because it must commit itself to control one akcraft. Without such a 

commitment, the operator might be tempted to reduce aircraft maintenance and 

crew training and then sell or least the aircraft before routine FAA surveillance 

reveals only possible irregularities. Such a situation is not in the public interest 

and could result in operations conducted at a reduced level of safety. 
12 

Denial of Exemption No. 3438, pp 2-3 (December 31, 1981). Attachment 3. 

The statements taken from this Denial of Exemption, along with the earlier 

regulator}' history including the FAA correspondence with Congressman Mitchell in the 

Aire Cardinal enforcement matter, explain the safety bases for the exclusive-use rule.. 

We label these two safety bases as: I. The Best-Use-of-FAA-Safety-Inspectors-forCertification-and-Oversight Theory and 2. The More-Meaningftil-Data Theory. 

Theory 1: The Best-Use-of FAA- Safety-Inspectors-for-Certification-andOversight Theory. 

As tlie regulatory history makes clear, the FAA and its predecessor agencies had 

an interest in not wasting taxpayer funds - or more importantly scarce Government 

certificafion and safety oversight personnel — processing and approving applicaUons for 

an air carrier certificates or commercial operafing certificates if the applicants did not 

have the financial wherewithal or the business commitment to have the exclusive use and 

control of an aircraft for at least 6-month increments. The certification process for a part 

135 applicant is fime-consuming and resource intensive. It would not be in the public 

interest to divert FAA safety resources to applicants that had business models that had a 

good likelihood of being short-term. It would not be in the public interest to have so 

many teetering carriers or fly-by-night operations that Government resources would be 

stretched thin reviewing applicaUons or overseeing such operations and thus haying less 

time to oversee other part 135 operations. Devofing resources to the certification process 

for applicants who might never get off the ground (so to speak) or to overseeing carriers 

that would be in and out of business, would divert scarce public resources from certifying 

and overseeirig those that would be acfively engaged in conmiercfal operations. And 
13 

again, the regulatory history makes clear that the public has an interest in having 

mdependent, taxpayer funded oversight of such operations in that history has 

demonstrated that many certificate holders, once certificafion was complete, did not 

maintain their operafions or maintenance programs to the appropriate levels. If too many 

fly-by-night operations got certificated, safety problems that could otherwise be 

identified and corrected by FAA inspectors after inspecfing real, going-concern part 135 

operators, might be missed. 

Theory 2: The More-Meaningfitl-Safety-Data Theory. 

As the FAA and its predecessor agencies e.xplained, requiring a commercial 

operator to have the exclusive use and control of at least one aircraft for six-month 

increments, gave Government safety inspectors a better opportunity to get a meaningful 

picture of whether the operator was adhering to appropriate air carrier requirements, 

including maintenance requirements. In other words, if an FAA inspector had the 

opportunity to inspect at least one aircraft used and controlled (in at least 6-month 

increments) by the operator, that could give the FAA a more meaningful picture about 

whether the carrier properly maintained the aircraft and whether the aircraft was properly 

returned to service. Thus, even though part 135 carriers can also use aircraft that are not 

exclusive-use aircraft, by the FAA requiring each part 135 operator to have at least one 

exclusive use aircraft it increased the chances that it would get more meaningful data 

points to track the carrier's ability or willingness to comply with safety rules. Therefore, 

even if a carrier is not a fly-by-night carrier and has the financial wherewithal and 

business intention of being a long-term going concern (thus, in the rare case where 
14 

Theory 1 would not be relevant), the FAA decided that it was still important to impose a 

one-aircraft, exclusive use requirement on part 135 operators. 

[nearly 1982, EAF filed a petition for reconsideration of the Denial of Exemption 

issued in December 1981. See Attachment 4. In that proceeding, the FAA granted the 

exemption m part because the safety concerns that we've labeled as Theory I above 

didn't apply (i.e., EAI^ was not a fly-by-night part 135 operator, but instead had been in 

business for quite some time) and because the company demonstrated that all of the 

aircraft that it used in its part 135 operation — that were sometimes used by the aircraft 

owners themselves in part 91 operafions ~ were by contract between the aircraft owners 

and EAF — in EAF's hands for purposes of compliance with aircraft maintenance and 

recordkeeping requirements. See Grant of Exemption, No. 3438A, at page 2. That 

exempuon was extended up to 1989, when EAF decided not to seek its extension. See 

Grant of Exemption No. 6158 for the history. Attachment 5. In 1995, EAF again 

pefitioned the FAA for an exemption fi'om section 135.25(b) and secfioni 135.25(c) for 

the same reasons it cited in the 1980s. The FAA granted the exemption. That exempfion 

does not seem to have been extended beyond the 1997 terminaUon date. 

More recently, in the preamble to the March 1995 NPRM regarding proposed new 

part 119, the FAA stated the following concerning a requirement that was eventually 

adopted into the current part 119 and made applicable to all part 135 and pan 121 

operators: 

Section 119.63~Recency of operation. Proposed Sec. 119.63 would 

prohibit a certificate holder from conducfing a kind of operafion if that kind of 

operation has not been conducted for a period of 30 consecufive days. To resume. 

that kind of operation the certificate holder must advise the Administrator at least 

5 consecutive calendar days prior to resumption of that kind of operation and 
15 

make itself available for any FAA reexamination that the FAA considers 

necessar)'. This requirement is being proposed because the FAA believes that the 

safety requirements for a particular kind of operafion might not be met adequately 

by an operator that does not conduct that kind of operations for that length of 

time. Safet}' requires at least 5 days notice so that the FAA has the opportunity to 

conduct an inspection or reexamination to determine whether the certificate 

holder remains properly and adequately equipped and able to conduct a safe 

operation. Unless the FAA suspends or revokes the operator's certificate or 

withdraws the authorization in the operations specification for that kind of 

operafion, the certificate holder may resume that kind of operafion on the sixth 

• - - consecutive calendar day after it notified the FA'^ of its plans to resume that kind 

of operation. Even if the FAA decides not to conduct a reinspecfion or a 

reexamination during that 5-consecutive-calendar-day period, the certificate 

holder may nonetheless resume operations on the sixth consecutive calendar day 

after the notification. For seasonal operators, advance planning and coordination 

with the certificate holding district office would make resumpfion of operafions 

smoother. 

60 FR 16230 at p. 16263 (March 29, 1995). 

Section 119.63 is somewhat relevant to analyzing the safety purpose for having a 

section 135.25(b). In promulgating Section 119.63, the FAA was attempting to protect 

against similar potential safety dangers that section 135.25(b) does not directly regulate. 

Thus, for example, even if a part 135 carrier had an exclusive-use aircraft that literally 

met all of the terms of section 135.25(b), the "data point" theory (Theory 2 discussed 

above) regarding both the operation and maintenance of that aircraft would not be 

meaningful in assessing whether the carrier was still able and willing to comply with the 

regulations - if the carrier had been inactive for a prolonged period. The exclusive-use 

aircraft could have just been sitting in the hangar. Moreover, an extensive dormancy 

period for the part 135 operator raises the potenfial safety concern that the carrier has not 

recently pracficed or implemented its FAA-approved part 135 operations. The secfion 

119.63(a) provision, read together with the notice requirements in 119.63(b)(1) and the 

availability/accessibility requirements of 119.63(b)(2), is - like 135.25(b) ~ an early 
16 

warning system that gives the FAA safety mspectors the opportunity to inspect the 

•operator before the operator resumes operations after a long period of inactivity. 

Clearly, the FAA could charge a part 119 certificate holder with "violating" 

Section 119.63 in the traditional sense of how people would describe noncompliance with 

a safety rule. However it would be somewhat incongruent with the usual sense and use 

of the word "violation" to so label a carrier that did not conduct an operation for an 

extended period instead of the less-judgmental label of "noncompliance". If a carrier 

resumes part 135 operations after a long period of inactivity without first providing the 

FAA with a 5-day notice of its intention to resume operations or if it otherwise fails to 

makes itself available and accessible to an FAA safety inspection, then that would be 

fairly labeled as a "violation" because of the plain requirements of the rule and the public 

interest in giving the FAA the opportunity to verify whether the carrier remains safe 

before it resumes operations. 

So like section 135.25, section 119.63 was designed to provide the FAA with an 

early warning system to inspect an inactive carrier that decides to resume operations. It 

also filled a gap in.the exclusive-use rule in that a carrier could be in complete 

compliance with secfion 135.25(b), but the data point (i.e., the exclusive-use aircraft) 

would not necessarily provide meaningful data on whether the carrier was capable of 

maintaining the aircraft and retuming to part 135 service in accordance with the rules. 

But, it is also worthwhile to note that section 119.63 is not a substitute for section 135.25. 

A carrier might have no periods of part 135 inactivity but not have an exclusive-use 

aircraft for many months. And, the nonexclusive aircraft that the carrier uses in its part 

135 operation might be maintained by others 
17 

The Complamant respectfully requests, in view of the foregoing discussion about 

the history of exclusive-use aircraft rules, that the FAA Decisionmaker modily FAA 

Order 2011 -6. First, we request that the FAA Decisionmaker clarify that a carrier can be 

found to be in noncompliance with section 135.25 regardless of whether that carrier 

conducts part 135 operafions during the period when it lacks an exclusive-use aircraft or 

whether it is in a period of inacfivity. Thus, once it is proven that the carrier does not 

have an exclusive use aircraft, — for example perhaps because of the way a lease is 

written that gives the owner the right to potenfially use the aircraft during the 6-month 

period or because the listed "exclusive-use" aircraft was used by a person or entity other 

than the carrier— then a finding of noncompliance with Section 135.25(b) can be made. 

Second, we request that the FAA Decisionmaker modify his decision to specifically 

discuss the safety bases (theories) for having an exclusive use safety rule. 

Given the evidence in this case and the Decisionmaker's finding that Helicopter 

Flite, Inc. did not have exclusive use of the only aircraft listed on its operafions 

specifications between February 22, 2008 and September 15, 2008, the Complainant 

requests that the Decisionmaker modify FAA Order No. 2011-6 to fmd that Respondent 

was in violation of section 135.25(b). 

As noted earlier, Complainant is not seeking modification of the Order to impose a 

civil penalty in this case. However, Complainant does seek clarificafiori that this order 

does not preclude imposition of a civil penalty in appropriate circumstances for a 

violation of secfion 135.25(b) even where there is no evidence that the air carrier is 

operating aircraft during the period it has no exclusive-use aircraft. As we have 

suggested above, it may well be that the most appropriate enforcement action, based on 
18 

the purposes behind this rule, would be remedial certificate action if the circumstances 

wanant any enforcement action at all. The Decisionmaker's point is well taken that it 

would likely not be an appropriate exercise of prosecutorial discretion to impose a civil 

penalty simply because a carrier is without an exclusive-use aircraft because it was 

destroyed by fire or a natural disaster, particularly if the carrier is working diligently to 

replace its exclusive-use aircraft. Nevertheless, there might be circumstances, albeit rare, 

when a civil penalty might be appropriate, and we ask that the Decisiomnaker not 

preclude imposition of a civil penalty in such circumstances. 

Conclusion 

The Complainant respectfully requests that FAA Order 2011-6 be modified as 

follows: 

1. To clarify that a carrier can be found to be m noncompliance with 

section 135.25 regardless of whether that carrier conducts part 135 operafions 

during the period when it lacks an exclusive-use aircraft. 

2. To find that Respondent did violate section 135.25(b); and 

3. To clarify that the Decisionmaker's Order does not preclude the imposition -

in appropriate circumstances - of a civil penalty for a violation of secfion 

135.25(b) even where there is no evidence of the carrier operating. 

Respectfully submitted. 

A. Conte 

lanager, Special Emphasis Enforcement 

Enforcement Division, AGC-300 

Office of the Chief Counsel 

Federal Aviation Administration 

800 Independence Avenue, SW 

Washington, DC 20591 

Counsel for Complainant 
19 

CERTIFICATE OF SERVICE 

I hereby certify that the foregoing Petition to Modify the Final Decision and Order of the 

FAA Decisiomnaker in the Matter of HeUcopter Flite. Inc.. Docket CPO9EA0013, 

FDMS. No. FAA-2009-0579, was sent via Federal Express next business day delivery 

service and the US Mail, certified return receipt requested, to: 

Mr. Floyd Hoffman 

President 

Helicopter Flite, Inc. 

-190 Decker Lane . _- _. . . . __ 

Weatheriy, PA 18255 

(one copy with 5 attachments) 

I fijrther certify that the original and one copy of the Petifion to Modify the Final 

Decision and Order of the FAA Decisionmaker (including the 5 attachments) in the 

Matter of Helicopter Elite. Inc. DocketCPO9EA0015, FDMS. No. FAA-2009-0579, was 

hand-delivered to: 

Federal Aviation Administrafion 

600 Independence Avenue, SW 

Washington, DC 20591 

Attn: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building — Room 2014 

Date: July 13, 2011 |^rt^Kv^ 9,,m\ \