UNITED STATES DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION WASHINGTON, DC In the Matter of: AIR CHARTER, INC. d/b/a AIR FLAMENCO FAAOrderNo. 2012-11 DocketNo. CP09S00008 FDMS No. FAA-2009-0100 1

Served: October II, 2012 DECISION AND ORDER' Administrative Law Judge Isaac D. Benkin ("ALJ") issued a written initial decision' on January 8, 2010, finding that the FAA did notprove that Air Charter, Inc., d/b/a Air Flamenco ("Air Charter") operated an air ambulance flight contrary to its operations specifications in violation 14 C.P.R.§ 119.5(g). 4 The ALJ also held that the FAA did not prove that Air Charter violated 14 C.P.R. § 91.13(a)5 by conducting a flight with a stretcher that had been installed backwards and that hadthe wrong number ofrestraintbelts. Finally, the ALJ held that Air

1Generally, materials filed in the FAA Hearing Docket (except for materials filed in security cases) are also available for viewing at http://www.regulations.gov. 14 C.F.R. § 13.21 0(e)(l).
2 The Administrator's civil penalty decisions, along with indexes ofthe decisions, the rules of practice, and other information, are available on the Internet at the following address: www.faa.gov/about/office**~orglheadquarters ~offices/age/pol~** adjudication/AGC400/Civil**~Penalty/.** See 14 C.F.R. § 13.21O(e)(2). In addition, Thomson Reuters/West Publishing publishes Federal Aviation Decisions. Finally, the decisions are available through LEXIS (TRANS library) and WestLaw (FTRANFAA database). For additional information, see the Web site.
3 A copy ofthe initial decision is attached. Ahearing was held in this case on October 23 and 26, 2009, in San Juan, Puerto Rico.
4 Section 119.5(g) provides in pertinent part: "No person may operate as a direct air carrier or as a commercial operator without, or in violation of, an appropriate certificate and appropriate operations specifications."
5 Section 91.13(a) provides that regarding aircraft operations for the purpose ofair navigation, "[n]o person may operate an aircraft in a careless or reckless manner so as to endanger the life or property ofanother."Charter did not have an FAA-approved flight manual aboard the aircraft on this flight in violation of 14 C.P.R.§ 121.14l(b). 6 He assessed a $550 civil penalty for the Section 121.141(b) violation. The FAA appealed, arguing that the ALJ's initial decision contains material errors offact that are not supported by the preponderance ofthe evidence and conclusions oflaw that are not in accordance with applicable law, precedent and public policy. The FAA urges the Administrator to find that it proved that Air Charter violated Sections 119.5(g) and 91.13(a), as alleged, and to assess an $11 ,000 civil penalty against Air Charter. The FAA's appeal is denied. As will be explained in this decision, the FAA failed to prove its allegations that Air Charter violated Sections 119.5(g) and 91.13. The $550 civil penalty assessed by the ALJ is not affected bythis decision. I. Facts On June 8, 2008, a woman between the age of60 and 70 years old (Tr. 270) visited the emergency room in the Center ofDiagnosis and Treatment ("the Center") on the island of Culebra, which is offthe east coast ofthe main island ofPuerto Rico. The woman had fallen in her apartment and was complaining about a pain in her hip. When she arrived at the Center, she told Dr. Manangely Rodriguez that she could not stand up by herself. (Tr. 270, 272.)

6 The FAA alleged in its Complaint that Air Charter had violated Section 91.9(b)(1) by not having a current manual on board the flight in question. Section 91.9{b)(1), in pertinent part, provides: "No person may operate a U.S.-registered civil aircraft (I) For which an Airplane

... Flight Manual is required by§ 21.5 ofthis chapter unless there is available in the aircraft a current, approved Airplane

... Flight Manual or the manual provided for in§ 121.141(b)." Air Charter was certificated to conduct operations under 14 C.F.R. Part 135, not under Part 121, (See Air Charter's operations specifications at AOOl-1 and A003-l included in Government Exhibit 4). Therefore, Section 121.141(b) was neither applicable to the operation in question nor alleged as having been violated. Air Charter did not file an appeal from the ALJ's finding that it did not have a current manual on board during the flight giving rise to this case, which does constitute a violation ofSection 91.9(b)(I). The ALJ's error appears to have been inadvertent and no further discussion regarding this violation is warranted.
2Dr. Rodriguez testified that she referred the patient to University ofPuerto Rico (UPR) Hospital in Carolina, Puerto Rico, for x-rays because the Center in Culebra does not have anx-ray machine. (Tr. 456.) The Center arranged for Air Charter to fly the patient to the mainisland. Air Charter flew this patient to Isla Grande Airport in Puerto Rico on a Britten-Norman BN2A-

' 26 Islander multi-engine aircraft, registration numberN906GD, (Government Exhibit I) on June 8, 2008. Air Charter is a certificated air carrier authorized to conduct on demand operations under 14 C.P.R. Part 135 based in Isla Grande, Puerto Rico. (Government's Exhibit 3 at AOOI-1.) Air Charter has a contract with the Municipality ofCulebrato transport elderly indigentpatients who need to go to the main island for medical appointments. The contract does not include transportation for emergency care or for treatment ofa critical condition.' (Air Charter's Exhibit 21; Tr. 390-391; Government Exhibit 8.) Under its operations specifications, Air Charter is not authorized to conduct air ambulance operations. (Government Exhibit 4 at A004-IA004-2.) An "air ambulance operation" is defined inAir Charter's operations specifications as follows: (a) Air transportation ofa person with a health conditionthat requires medical personnel as determined by a health care provider; or (b) Holding outto the public as willing to provide air transportation to a personwith a health condition thatrequires medical personnel as determined by a health care provider including, but not limited to, advertisement, solicitation, association with a hospital or medical care provider and (c) Uses an air ambulance aircraft, either fixed wing orhelicopter. (Government Exhibit 4 at A002-1.) The operations specifications define "air ambulance aircraft" as follows:

7 The president ofAir Charter, Francisco Torres, testified that the contract does not call for Air Charter to provide air ambulance service. (Tr. 390-391.) He said thatthey use the stretcher for passenger comfort only. (Tr. 389.) 3An aircraft used in air ambulance operations. The aircraft mustbe equipped with at least medical oxygen, suction, and a stretcher, isolette, or other approved patient restraint/containment device. The aircraft need not be used exclusively as an air ambulance aircraft and the equipment need not be permanently installed. Dr. Rodriguez testified that at the time that she sawthe patient, the patient did not have a medical condition that required that she be accompanied on the flight by medical personnel. (Tr. 267.) Dr. Rodriguez stated that she wouldhave called for an air ambulance, such as Aeromed, Aviane, or Critical Care, ifthe patient's condition had required care by medical personnel during the flight. She testified that she could have called the Coast Guard ifnone of the air ambulances were available. (Tr. 267-269.) Dr. Rodriguez said that she later heard from other residents ofCulebrathat the patient had fractured her femur and had been transferred to anotherhospital, Centro Medico, where the patient received surgical treatment for the fracture. (Tr. 272 -278 .) She testified that when she called Air Charterto arrange for the flight, she did not knowthat the patient had a fracture. (Tr. 77.) According to the president ofAir Charter, Francisco Torres, and an automobile mechanic named Robert Emeric, there were two individuals other than the patient on the flight: the pilot,' and Mr. Emeric. Mr. Emeric testified that he sat inthe seat next to the pilot in Row I, that no

one sat near the patient during the flight, and that the pilot did not attend to the patient during the flight. (Tr. 315-316, 318, 324.) The weight and balance form thatthe pilot completed for this flight indicated, however, indicated that there was someone weighing 140 pounds in Row 5, which is the seat next to the stretcher. (Goverrnnent Exhibit 6.) While conducting surveillance operations at Isla Grande Airport, Puerto Rico, on June 8, 2008, FAA Inspector Eugene Jester observed the landing and unloading ofN906GD. Inspector

8 Air Charter's presidenttestified that the pilot, who did not testifY at the hearing, had no medical training. (Tr. 424.) 4Jester became curious about this Air Charter flight whenhe observed an ambulance pull up to N906GD. (Tr. 41.) Whikhe was standing about 50 to 75 feet away from the aircraft, he observed someone being taken offthe aircraft on a stretcher. (Tr. 64-65.) He said that the patient on the stretcher was removed head first from the aircraft through the passenger door on the left side ofthe aircraft. (Tr. 79.) The inspectortestified that it appeared to him to be an emergency situation. (Tr. 43, 64.) The photographs that he took show several individuals, including the pilot, around the stretcher as they carried it offthe airplane and subsequently while it stood onthe runway before being loaded on the ground ambulance. The inspector identified a paramedic from the ground ambulance in the photographs but no other medical personnel. (Tr. 47.) Inspector Jester testified that he thought that he had seen a fourth person get offthe aircraft (besides the patient, the pilot and the auto mechanic) buthe did not know that person's identity. After everyone deplaned, Inspector Jester boarded the aircraft to see whether it was equipped for air ambulance operations. (Tr. 92.) He did not see any ofthe medical equipment, such as an oxygen system, that is required onboard air ambulance aircraft. (Tr. 95.) He did not testify whetherthe stretcher was on the aircraft at the time or whether it was still on the tarmac. According to Britten-Norman, only a configuration for two restraints crisscrossing the patient is approved for a stretcher on this aircraft.' (Govermnent Exhibit 16; Tr. 125-127.) Inspector Jester testified that based upon his review ofphotograph 5 in Govermnent Exhibits 3a and 3b, there were four restraints on the stretcher. This photograph shows the patient on a stretcher, which is on the tarmac. The view ofthe stretcher in this photograph is partially blocked because the stretcher is behind the gurney from the ambulance.

9 A Britten-Norman representative wrote thatthe British Civil Aviation Authority approved the stretcher modification for the BN2A series Islander aircraft as a major modification, and the FAA would accept such a modification under a "cross-validation" agreement. (Government Exhibit !6.) 5Inspector Joel Rodas, who was not present at the Isla Grande Airport during the inspection, testified that according to the maintenance.manual for this aircraft, the stretcher should have been installed so that the foot ofthe stretcher is toward the cargo end ofthe aircraft, and the head is toward the front ofthe aircraft. (Tr. 107, 109; Government Exhibit 5 at 3.) He said that installing a stretcher backwards would affect the weight and balance calculations for the

. . aircraft. (Tr. 108, 160.) Torres testified that the weight andbalance would not be affected ifthe stretcher is installed so that the long part is toward the front ofthe aircraft because the stretcher is attached to the base plate at the same station inthe aircraft. (Tr. 412-413.) II. The Initial Decision The ALJ held that the FAA failed to sustain its burden ofprovingthat Air Charter operated an unauthorized air ambulance service. The ALJ wrote as follows: There is no evidence in the record to provethatthe patient whom Inspector Jester saw being removed from respondent's aircraft was either accompanied by medically trained personnel or was the subject ofa recommendation byher doctor or any otherperson at Culebra Medical Centerthat she must be so accompanied. In fact, the physicianwho treated her as well as the head ofthe Medical Center where she was seenbothtestified thatthere was no recommendation for a medically trainedpersonto accompany the patient onthe flight. The issue is not even close. Inspectors Jester and Rodas could have ascertainedthat this was not an air ambulance service simply by making a few telephone calls to Culebra. The fact that they neglected to do so and instead relied on erroneous inferences from a few distant photographs does notredound to the credit ofthem or the Complainant. (Initial Decision at 6.) The ALJ also rejected the FAA's allegation that Air Charter operated the aircraft in a careless or reckless manner. The ALJ held that the FAA failed to prove that the stretcherhad been installed backwards because neither inspector "actually examined the manner ofthe stretcher's installation during the flight." (Initial Decision at 1 0.) He wrote thatthe photographs ofthe stretcher after it had been removed from the aircraft did not prove the inference drawn by
6the inspectors that the stretcher had been installed backwards. He held further that even ifAir Charterhad installedthe stretcher backwards, the FAA did not prove that operation with a backwards stretcher would have "produced a palpable danger to human life or property." (Initial Decision at 11.) The ALJ also rejected the allegation that the operation constituted a violation ofSection 91.13(a) because the stretcher had the wrong number ofrestraints. (Initial Decision at 9.) Although the FAA alleged that the stretcher had too many- four instead oftwo- restraints, 10 the ALJ held that the FAA failed to prove that the stretcherhad an "insufficient" number of restraints. (Initial Decision at 9.) Finally, the ALJ held that the aircraft did not have a current approved flight manual on board during the flight, and assessed a $550 civil penalty for the resulting violation. (Initial Decision at 11-14.) III. Discussion A. The FAA did not prove that Air Charter operated an air ambulance in violation of Section 1119.5(g). The FAA argued thatthe ALJ should have held that patient was a seriously injured

woman with a broken femur who was unable to move on her own, instead ofdescribing her as a "recumb.ent woman" with a fractured tibia. In support ofits argument, the FAA pointedto the following evidence:

• the patient was driven from her home to the Center to see Dr. Rodriguez, and from the Center to the local airport in a ground ambulance;

• the patient told Dr. Rodriguez that she could not stand by herself;

• the patient had a fractured femur, not a fractured tibia.

10 Paragraraph 11.7 ofthe complaint alleged that the stretcher had "had an improper number of safety belts (four)" and the witnesses testified that the stretcher should have had two belts, not four. 7The FAA argued, without any supporting evidence, that a "broken femur is a more threatening condition for an elderly person than a broken tibia." (Appeal Briefat 10). The FAA also argued that the ALJ ignored the evidence that there was a person in Row 5 during the flight. According to the FAA, the passenger needed the same level ofattention as that whichthe ground ambulances could provide to her. The FAA argued further that the patient needed the stretcher for her safety during the flight, notjustfor her comfort. According to the FAA, any lack ofcare

or equipment during the flight does not prove that this flight was not an air ambulance flight. Air Charter responded that the FAA's assessment that Air Charter conducted an air ambulance operation was in error. The FAA, Air Charter argued, based its allegation solely uponthe observation ofthe offloading ofthe stretcher from the flight and ignoredthe opinion of Culebra Medical Center staffthat the patient did not need air ambulance transportation and that the use ofthe stretcher was for the patient's comfort only. (Reply Briefat 2-4.) The FAA's argument that Air Charter conducted an air ambulance operation contrary to its operations specifications is rejected. The FAA failed to prove that the operation met the definition of"air ambulance operation" set forth in Air Charter's operations specifications. Air Charter's operations specifications, as well as FAA OrderNo. 8900.1 (change 22, dated May 1, 2008), defined air ambulance operation as "air transportation ofa person with a health condition that requires medicalpersonnel as determined by a**he~lth** careprovider.'' (Emphasis added.) FAA Order No. 8900.1, change 22, defined the term "medical personnel" as "persons with medical training who are assigned to provide medical care during flight." The FAA did not introduce any evidence that a medicalprovider**h~d** determined that the patient's condition made it necessary for the patientto have medical personnel attend to her during the flight.

11 The FAA did not contend that Air Charter had held out to the public that it would be willing to provide airtransportation to aperson with ahealth condition that requires medical personnel including, but not limited to, advertising, solicitation, or association with ahospital or medical care provider. 8Dr. Rodriguez, the physician who examined the patient at the emergency room in the Center in Culebra, testified that inher opinion, the patient's conditionhadnot required her to be accompanied bymedical personnel on the flight. She said that ifshe thought that the patienthad required medical care during the flight, she would have ordered an air ambulance to transport the ' patientto the main island. (Tr. 267-268.) Although there maybe a question regarding whether

someone sat in Row 5 next to the stretcher during the flight, there was no evidence that any occupant ofthat seat was a medical care provider. The record contained very weak evidence regarding the patient's health condition. Dr. Rodriguez did nothave the equipment necessary to determine the cause ofthe patient's pain. The inspector assumed that the patient had a health condition because she was on a stretcher and

was picked up by a ground ambulance. Dr. Rodriguez never sawthe patient after June 8, 2008. The evidence that the patient later had surgery to treat a fractured femur deserved little weight because it was no more than gossip. Dr. Rodriguez said that Culebra was a very small island and people talk.about each other. She said that she had been told that the patient later had surgery to treat a fracture. (Tr. 272, 278.) The FAA's argument that the patient needed the same level ofcare during the flight as

was provided by the ground ambulances that transported her to and from the hospital was not persuasive because it was not based upon the testimony ofany health care provider. As the administrator at the Center, AidaMaldonado, testified, a ground ambulance transported the patient on a stretcher from her home to the Center and from the Center to the local airport ' because it is a free service in Culebra and there are'no taxis or public transportation onthat island. (Tr. 464.) Dr. Rodriguez testified that she "preferred to send her [the patient] in the same stretcher in which she came to the Emergency Room" (Tr. 272.)

9The FAA relied upon FAA Order No. 8900.1, change 22, to support its argument that the ALJ erred in not finding that Air Charterhad operated an unauthorized air ambulance operation. In particular, the FAAreferred to Paragraph 4-921A(l), which provides in pertinent part: The carriage ofa person or persons requiring medical personnel and/or medical equipment on a scheduledair carrier, under 14 CFR parts 121 or 135, does not constitute air ambulance operations. However, a scheduled air carrier who transports a person or persons requiring medicalpersonnel and/or equipment on an unscheduled flight (charter) is engaged in air ambulance operations. (Emphasis added.) The quoted language inthis paragraph does not apply to Air Charter because it pertains to scheduled air carriers, and Air Charter is an on-demand air carrier." The FAA also referred to paragraph 4-921C, which provides, in pertinentpart, as follows: Operators holding part 135 OpSpecs withoutparagraphs A021 or A024 may transport medicalpersonnel aspassengers who are accompanyinga sickor injuredperson, but must meet the following requirements: 

### * * * (2) Any in-flight patient care equipment and medical personnel that accompany the passenger must be provided solely for the patient's comfort. Ifany medical care provider has determined that the medical personnel are required for the patient's safety, the flight is an air ambulance operation (Emphasis added.) This paragraph does not apply because there is no evidence that any medical personnel accompanied the'patient as a passenger. Inspector Jestor did not knowthe identity of the fourth person whom he thought he had seen get offthe aircraft. Forthese reasons, the FAA's argument that the ALJ shouldhave held that Air Charter conducted an unauthorized air ambulance operation is rejected.

12 This paragraph is also troublesome to the extentthat it provides that ifa person requires medical equipment- but not medical personnel-- during flight, then that flight is an air ambulance operation. First, this paragraph ofthe Order goes beyond the definition ofair ambulance operation which only includes a requirement for medical personnel- not for any medical equipment-- as determined by a health care provider. Second, it does not mention the role ofa health care provider in determiningthe requirements ofthe patient. In this case the issue is whetherthe respondent violated the operation specifications, and therefore, the definitions found in the operations specifications control. 10B. The FAA did not prove that the stretcher was installed backwards or had the wrong number ofrestraints in violation ofSection 91.13(a). Government Exhibit 5, an excerpt from SupplementNo. 16 to Chapter 2.4 ofthe BrittenNorman Islander Maintenance Manual, provided instructions for the installation ofa stretcher unit with one, two or three stretchers in an Islander. The manual provides that the stretcher unit "installation is accomplished by removal ofthe standard cabin passenger seats and replacing them with light alloy baseplates slotted into the standardkeyhole seat floor attachment points." The manual directs that the single-stretcher installation with one attendant's seat, "is assembled

onthe rear baseplate which is slotted into rows 4 and 5 seatretaining keyholes." Figures 1-3 in the manual showthat the headrest should be closer to the pilot's seat and the stretcher should pointtoward the rear ofthe aircraft. The frame supporting the stretcher shouldbe attached to the baseplate at fuselage stations 183.60 and 211.60. Air Charter introduced a copy ofthe Major Repair and Alteration Form, Form 337, which had been prepared in 2005 to document the stretcher installation in N906GD. The installation, as described onthe Form 337, is consistent with the instructions and the illustrations in the manual. Inbox 8, the work accomplished was described in pertinent part as follows: Aircraft converted for ambulance role by the installation ofa single stretcher assy.... in accordance with BrittenNorman M.M. /1 No. ]6 to chapter 2.4 (Operation option NB/M/915 issue 3 and NB/M/1002, issue 1 13). Single Stretcher assy. PIN CAE-83-G-149 and attendant seat PIN NB-16-A0-825. The installation is accomplished by removal ofthe standard cabin passenger seat rows 3, 4, and 5, and replacing them with light alloy base plate

... slotted into the standard keyhole seat floor attachmentpoints located at fuselage station 173.6, 183.6, 201.6 and 211.6 and secured with four locking pins

... that are also secured bythe installation of four AN3A bolts with split washer or spring washers at keyhole attachment points at fuselage station 173.6 and 211.6 patient support canvas (stretcher) installed with the headrest section looking after the baggage stowage area and securedto the stretcher assy.

13 Government Exhibit 5 is Britten Norman Supplement No. 16 to Chapter 2.4 (Operator's Option NB/M/915, Issue 4 and NB/M/1002, Issue 1), Stretcher Unit Installation. IIretaining brackets on baseplate with four quick release pins

... two at fuselage station 183.6 andtwo at fuselage station 211.6. (Air Charter Exhibit 24, Form 337, box 8). Inspector Jestor looked inside the aircraft butthere is no evidence that he examinedthe baseplate. He did not testify that he observedthe stretcher after it had been returned to the aircraft. He based his testimony thatthe stretcher was installedbackwards on his observation of the stretcher being removed from the aircraft. The photographs showthat the patient on a stretcher was removedhead first from the aircraft from a door under the wing on the side ofthe aircraft. Removal ofthe stretcher head first through this door would be consistent with an installation in which the head ofthe stretcher was toward the front ofthe aircraft. (See Government Exhibit 5, Figure 3, whichshows that the rear door aperture extends from approximately from STN 173.60 to STN 211.60 and Figure 1 showing that the stretcher frame should be attached to the baseplate at STN 183.60 and 211.60.)

; Regarding the restraint belts on the stretcher, Mr. Torres testified that an M-915 stretcher unit kit was installed on the aircraft, and the belts were part ofthe kit. (Tr. 436.) According to the Britten-Normanrepresentative who was consulted by Inspector Rodas, the NB-M-0915 includes a stretcher which "comes with two safety belts, which

... are crossed across the patient. These belts are TSO'dto TSO-C22f." (Government Exhibit 16.) It stands to reason that the stretcher unit that was installed in this aircraft had the correct number ofsafety belts, i.e., two safety belts which, when fastened properly, would criss-cross the body ofthe patient. The onlyphotographs in which the belts canbe seen are photograph 5 in Exhibits 3a and 3b. These photographs show the stretcher with the recumbent patient. It carrnot be determined from the photographs how many belts are attached to the stretcher because the stretcher is behind

12the gurney from the ambulance. 14 Only onebelt onthe stretcher canbe viewed extending horizontally across the woman's thighs or lower torso, but it cannot be determined whetherthe belt is fastened incorrectly or fastened at all. In light ofthe foregoing, it is held thatthe FAA failed to prove its allegation that Air Charter violated Section 91.13(a) by operating in a careless orreckless manner so as to endanger the lives orproperty ofothers. 15 IV. Conclusion The FAA's appeal is denied. The civil penalty for the violation ofSection 91.9(b)(l) remains at $550.

Federal AviationAdministration

14 Inspector Jester testified that he could not tell from looking at photograph 5 how many seatbelts were on the stretcher. (Tr. 61.)

15 Due to the finding thatthe FAA failed to prove thatthere were the wrong number ofbelts on the stretcher, it is not necessary to address the question whether operating an aircraft with a stretcher that has the wrong number ofbelts could constitute a violation ofSection 91.13(a) 13

### SERVED JANUARY 8, 2010 

# R E

# c u.s. DEPARTMENT OF TRANSPORTATION 

# EIVED OFFICE OF HEARINGS WASHINGTON, DC 

### JAN 11 

### 2011 

### HEARING DOCKET

IN THE MA TIEROF AIRCHARTERINC., Respondent. FAA DOCKETNO. CP09S00008 (Civil PenaltyProceeding) DMS NO. FAA-2009-0100

ADMINISTRATIVE LAWJUDGE'S INITIALDECISION 

### I. Nature oftile Case. ' .•

•• 1

Inthis civil penalty proceeding, the Respondent is charged with three violations ofthe Federal Aviation Regulations (FAR). The primary charge leveled by the Complainant, the Federal Aviation Administration, is thatthe Respondent conducted an air ambulance service in violation ofits Operations Specifications, which did not authorize it toperform this service. 1 Second, the FAA says that when the Respondent, which owns and operates a Britten-Norman "Islander" aircraft, installedin that aircraft facilities for transporting a stretcher, it installed those facilities backwards and with an impropernumber ofsafety belts attached to the stretcher. This, theFAA charged, amounted to a violation of§ 91.13(a) ofthe FAR, which propibits operation ofan aircraft "in a careless orreckless manner so as to endangerthe life orproperty ofanother."2The third charge againstthe Respondent alleges that, onthe day in question, the aircraft did not have an

1Section ll9.5(g)provides, in pertinentpart: "No person may operate as a direct air carrieror as a commercial operator without, or in violation of, an appropriate certificate and appropriate Operations Specifications." 2 Itis importantto note that the Respondent was not charged with violating§ 43.13(a) ofthe FAR. which requires that aperson perfonning maintenance or an alteration on an aircraftmust use the methods, techniques, and practices prescribed in the current manufacturer's manual or the manu!ilcturer's instructions, unless thatperson has secured the FAA's approval for adifferent installation. '

.**~** -,. ") -< (> 

### ., ··;_ ·1 ' ' • ;JFAA-approved flight manual aboard in violation of§ 121.14l(b)ofthe FAR. 3The Respondent is an on--demand air carrier, operatingunderthetrade name of"AirFlamenco." Its principal place ofbusiness is the ., Commonwealth ofPuerto Rico. TheFAA lodged its charges in a complaint filed onMay 27,2009, seeking a civil penalty of$11,000. TheRespondent denied all ofthe charges and sought an on-the-record hearing. The case was referred to the Department's Office ofHearings, where it was assigned to me for the conduct ofthe hearing and the issuance ofan initial decision. A twoday hearing was held in the Federal Building in Hato Rey, Puerto Rico on . October 23 and 26, 2009. Briefs have been filed, and the case is nowready for decision. II. ComplainantHas Not Sustained Its Burden OfProving that Respondent Performed an Illegal AirAmbulance Service. The Complainant's evidence consisted entirely ofthe testimony of two Air Safety Investigators, one ofwhom was not at the scene at the time in question. Both ofthem werepermanently assigned tothe FAA'sMiami Flight Standards District Office (FSDO). OnJune 8, 2008, Investigator Eugene Jester was standing onthe tarmac at the Isla Grande airport in Puerto Rico, when he noticed an aircraft bearingthe Respondent's trade name being offloaded about 50 to 100 feet from where he was standing. An ambulance had pulledup nearthe aircraft, and a stretcher carrying what appeared to be an elderly, recumbent woman was beingremoved through the aircraft's aft door. The woman was then transferred to a gurney that had been carried in the ambulance. The gurney, with its occupant, was placed into the ambulance, whichthen drove away. Assisting with the transferwere the aircraft's pilot, anotherpassengerwhohad been transported on the aircraft, a person who Jesterrecognized as an airport employee and the driverofthe ambulance. So far as Jester couldtell, the scene did not include any medical personnel whohad been carried in the aircraft, although the identity ofthe second passenger was unknown to him.

' Section 121.14l(a)requires each certificate holderto keep "acurrent approved airplane flight manual for each type ofairplane that it operates ..." Paragraph (b) of§121.141 states that a copy ofthe flight manual mustbe carried "[i]neach airplane required 1o have an airplane flight manual in paragraph (a) ofthis section."**'~** 2 

# •.From his vantage point, Jestertook a series ofphotographs onthe various steps in thetransfer, starting with the time the stretcherhad been removed from the aircraft. Hetestified that he had looked into the interior of the aircraft, after the recumbentpassengerhad been driven away. Inspector"' Jester also spoke with thepilot, askingto see his load manifest (containing his weight-and-balance calculation) and the FlightManual thathadbeen carried onthe flight. Except for thatbriefconversation, it does not appear thatJester interviewed anyone else who was onthe flight. Inparticular, he did not speakwith either ofthe passengers orwith anyone else who was involved in the transfer ofthe elderly patient. The flight had originated on Culebra, a small island offthe east coast ofPuerto Rico. Under local law, Culebra is a municipality with its own local government. There is a ferry service betweenthe two islands, although it is slow and subjectto the vagaries ofthe.weather. The municipal authorities ofCulebrahad entered into a contract with the Respondent to provide air service between Culebra and the main island for residents of Culebra who were consideredtoo frail orelderlyto suffer the rigors and discomfort ofan ocean crossing in order to obtainmedical services,**~.** appointments with specialist physicians whose service were not available on Culebra. Culebrahas a small cliQic but lacks many elementary medical facilities such as X-ray machines. The contract does not call forthe Respondent to provide air ambulance services. In case ofa genuinemedical emergency requiring such services, there are otherproviders (Aeromed, Aviane, Critical Care) as well as the U.S. Coast Guard who are available to transfer patients to hospitals onthe larger island. In addition, the contract, which is Exhibit 20 in the record, provides for the Respondent to furnish air transportation to municipal officials ofCulebra. TheRespondent also provides an on-demand service between the two islands for travelers who pay.their own way. At somepoint, InspectorJester soughtthe counsel ofJoel Rodas, the Principal Maintenance Inspector at the Miami FSDO. Jester showedthe photographs to Rodas. After viewingthe pictures and performing some research into the aviation literature.pertainingto the Britten-Norman "Islander" aircraft, Inspector Rodas concurred inhis colleague's viewthat Respondent's aircrafthadbeen used to conduct an illegal air ambulance operation. InspectorRodas was also responsible for the conclusion that the flight manual thatthe pilothad showedto Jester was not thepropermanual

3

•to be carried in the aircraft; although it had been prepared by the British firm that built the aircraft, the manual carried by the pilotwas notthe one that was currently approved by the FAA for use in domestic operations. Finally, Rodas concluded thatthe stretcherhad beenimproperly installed and was not equipped with the appropriate number ofsafety belts, a conclusion he .• reached on the basis ofviewing thephotographs that Jester had taken. Like Jester, Rodas didnot interview any ofthe individuals involved in the transfer ofthe patient; nordid he speakwith the pilot, the patient orthe other passenger onthe aircraft. The Complainant's case was closed afterthe testimony ofthetwo inspectors. Respondent's evidence opened with the testimony of

### Dr. Manangely Rodriguez, the physician whohad seen the patient thatInspectorJester later observed leavingthe aircraft onJune 8, 2008 at the Isla Grande airfield. Dr. Rodriguez is a general practitioner in Culebra. She was on clinic duty that Sunday, when an elderly lady was presentedtoher, suffering from pain 

### in her hip after a fall at home. Suspecting a brokenhip orbroken leg, Dr. Rodriguez made arrangements for her patientto be flown tothe main island for an X-ray. She also made arrangements for the airplane to be metby an ambulance to take the patient to the X-ray facility. Itwas Dr. Rodriguez's unequivocal testimony thatthe condition ofherpatient did notrequire medical personnel to attend to her during the flight, and the arrangements for her transportation did not include the attendance of a medically trained person orpersons during the flight. Dr. Rodriguez testified that, afterthe flight tookplace, she learnedthat thepatienthad suffered a fractured tibia, although she did notknowthat atthe time. During the hearing, the Respondent also sponsored the testimony of AidaMaldonado, the Manager ofthe Culebra Health Center, where Dr. Rodriguez had seenthe patient. Onthe witness stand, Ms. Maldonado confirmed a statement she hadmade earlier andthatis inevidence as Exhibit 21. According to the statement, the patient was stable when she leftthe Health Center and was not accompanied by paramedics. Ms. Maldonado also testified that an air ambulance was not required toperformthe transportation, andthat ifone hadbeenrequired, the Health Center would have called on a different providerthan the Respondent.

4 •

### Another ofthe Respondent's witnesses was RobertEmerick, the other passenger on the flight from Culebra. He testified that there was no one on the flight who was attending to

### the patient. He himselfis an automobile mechanic, and he purchasedhis passage ori the flight to Isla Grande because there was an empty seat onthe aircraft and he had some private business on" the main island. Mr. Emerick also testified that there was no medical equipment, such as oxygen, on the aircraft, and that the patient did not need orreceive medical attentionduring the flight. When the aircraft landed, he and others assisted in removing the patient and transferring herto the ambulance. The definition of"air ambulance," as used in the Operations Specifications for the Respondent's Islander (Exhibit 4)turns on the service actually performed as well as the configuration ofthe aircraft. The fact that the aircraft has been modified to carry a passengerin a recumbent position on a stretcher is not dispositive. The term "AirAmbulance Operations" is defined as follows: (a) Air transportation ofa person with a health condition that requires medical personnel as determinedby 1 

### a health careprovider; or (b) Holding outto the public as willing to provide air transportation to a person with a health condition that requires medical personnel as determined by a health care provider including, but not limited to, advertisement, solicitation, association with a hospital or medical care provider; and (c) Uses an air ambulance' aircraft, either fixed wing orhelicopter. The term "AirAmbulance Aircraft" is defined as: An aircraft used in air ambulance operations. The aircraft must be equipped with at least medical oxygen, suction, and a stretcher, isolette, or other appropriate patientrestraint/containment device. The aircraft need not be used exclusively as an air ambulance aircraft and the equipment need not be permanently installed. An air ambulance is by definition an aircraft that is usedfor the transportation ofpersons whose medical condition is such that they must be \ 

### accompanied by medical personnel as determined by a health care provider. It

### is not simply an aircraft thatis equippedto carry a passengerwho is confined to a stretcher or litter. The aircraft must be equipped with oxygen
5and suction for use by the patient, along with the stretcher, in orderto qualify as an "air ambulance aircraft." Thepassenger mustbe attended by someone with medical training, and the presence ofthe attendantmusthave beenrequired by a health care provider. Ifthe aircraft does notqualify as an "air ambulance aircraft," the service provided by that aircraft cannot be " deemed air ambulance service. Hence, in order theprove that an air ambulance service was being performed, the Complainant must at a minimum present evidence that either (a) the aircraft transported a person who, because of

### ill health, was accompanied by,**~,** a doctor, nurse, paramedic or othermedicallytrained individual; and (b) the physician orotherperson who treated the patient determined that it was necessary to have a medically trained individual accompany the patient on the flight. In this case, the Complainanthas not sustained its burden ofproofwithrespect to the charge ofunlawfully performing air ambulance service. There is no evidence in the record to prove thatthe patient whom Inspector Jester sawbeingremoved from Respondent's aircraft was either accompaniedby medically trained personnel or was the subject ofa recommendation by herdoctor orany other person at Culebra Medical Centerthat she must be so accompanied. In fact, the physician who treated her as well as the head ofthe Medical Center where she was seen bothtestified that there was no recommendation for a medically trained person to accompany the patient onthe flight. The issue is not even**clos<~.** Inspectors Jester and Rodas couldhave ascertained thatthis was not an air ambulance service simply by making a few telephone calls to Culebra. The fact that they neglected to do so and instead relied on erroneous inferences from a few distant photographs does not redoundto the credit ofthem orthe Complainant.

. Forthese reasons, I find and determine thatthe charge ofconducting an air ambulance service in violation ofRespondent's Operations Specifications cannot stand. It mustbe, andwill be, dismissed with prejudice. 

### III. The Charge ofOperating an AircraftIn a Careless orReckless Manner So As toEndangerLife orPropertywas Unproven. In its complaint, the FAA alleged that the Respondent operatedthe Islander aircraft on the June 8, 2008 flight in a careless orreckless manner.

6

rThe gravamenofthis charge is the claim that when the Respondent modified the aircraft by removing two seats and installing a frame to hold the removable stretcher, itperformedthe installation so that the stretcher was carried backwards, i.e., with the patient's head towards the front ofthe aircraft rather than with the head ofthe patienttowards the rear ofthe**~** aircraft. The complaint also alleges that the stretcher was installed with only two safety belts, whereas four safety belts were required. In its post-hearing briefs, the Complainanthas attempted totransmute its initial claim ofviolating§ 91.13(a) ofthe FARinto a broad attack on whetherthe Respondent tookpropercare ofthe patient during the flight from Culebrato IslaVerde. The problem that Complainant cannot overcome, however, is that itdid not make this claim in its complaint or in any otherpleadingprecedingthe hearing. Elementaryprinciples ofdue process require thatthe Complainant must, at an early stage ofthe proceeding, give the Respondent clearnotice ofthe claims the Respondent must meet. It is beyond question that, at the time this case went to hearing, the Complainant's case for a violation of§ 91.13(a) was founded onthe manner in which the stretcher was installed and the number ofsafetybelts attached to it. The Complainant simply cannot, at the post-hearingbriefing stage, shift its focus and assert that a totally different theory ofliability was established by the evidence. Its case mustrest on the validity ofits original contentionthat the aircraft was operated "in a careless orreckless manner so as to endangerthe life orproperty ofanother" because the stretcherwas installed improperly and hadan insufficientnumber ofsafetybelts. The principal witness for the Complainant onthis issue was Maintenance Inspector Rodas. Inspector Rodas was not at the Isla Grande field onthe date in question and, therefore, could not have examinedthe aircraft to ascertain how the framework**th~t** held the stretcher was installed.**Ins~ead,** his primary evidence for his conclusionthat it hadbeen installed backwards was thephotographs taken by his colleague, InspectorJester. Inspector Jestertestifiedthathe examined the interior ofthe aircraft. He did so, however, only after the stretcher with the patient on ithad been removed. Hence, his examination did not permit him to ascertainthe configuration of the stretcherunit duringthe flight from Culebra. The earliest ofhis photos in the record appears to showthe stretcher after it had been removed from the aircraft. There were no photos showing the interior ofthe aircraft while the patient was onboard. Itis clear, therefore, that InspectorJesterreached his conclusion about the so-called "backwards" installation ofthe stretcher7 

### •holding mechanismby inferring that conclusion from a photograph ofthe stretcher (and a group ofpeople surrounding it) as it was held onthe tarmac outside ofthe aircraft. This was a rather strange inference to draw, since there is no indication in the photographs (at least those thatwere offered in evidence bythe FAA) as to how the stretcherhadbeenremoved from the "" aircraft

- feet first or head first

- orhow it had beenmoved within the aircraft before it carne outthe rear door. The evidence proffered by the FAA also included the installation instructions that accompanied the aircraftmanufacturer's "kit" for the removal oftwopassenger seats ,and theirreplacementby the stretcherunit. The instructions will be found inExhibit 5. Itis true that those instructions teach that the unit should be installed so thatthe occupant ofthe stretcher has his orherhead facing the rear ofthe aircraft. Itis also noteworthy, however, thatthe Respondent is notcharged with failure to follow those instructions; it is charged with operating in a careless orreckless manner. ' This means thatthe Complainant, in order to make its case, must do more than merely demonstrate that thtl stretcherunit may have been installedin a manner inconsistentwith the manufacturer's directions. The FAAwas required also to provethat the failure to follow those directions produced a palpable danger tohuman life orproperty. This, the Complainant failed to do. In its initial brief, the Complainantcharges Air Charterwith a "breach ofthe duty ofcare to treat an immobilized, allegedly schizophrenic human passenger with a medical condition the same as a carrier would treat cargo (i.e. loaded in the back ofan aircraft with no attention until unloaded.)" Comp. Init. Br. At 1-2. The trouble with this outrageous charge is thatthere is no evidence (medical or otherwise) to support it. The onlyphysician who testified stated categoricallythatthe patient's medical condition did not req1,1ire herto be attended during the flight. In addition, the FAA's complaint in this case did not charge the Respondent with a "breach ofits duty ofcare." The charge was improper installation ofa stretcher equipped with an insufficient number ofsafety belts.: When asked what danger to life orproperty may have resulted from the manner in whichthe stretcherkit was installed, InspectorRodas

4 The instructions also include directions for**r1~moval** offour seats and the installation oftwo stretchers in theirplace, So far as the record shows, the two-stretcher option was neverused, 8

•mentioned, in a vague way, that the installation may have adversely affected the pilot's weight and balanpe calculation. But he could not adequately

. explain why that might be so. I asked him directly whetherhe was assuming thatthe patient's head weighed more than her feet orvice versa and I did not receive a satisfactory answer. Inspector

### R~das conceded that he did not "' know whether the patientwas lying down or sitting up during herjourney. As we have noted, InspectorRodas did not interview anyone who was aboard the aircraft during the flight, norwas he able to describe how the calculation ofthe aircraft's center ofgravity might change depending on the location ofthe patient's head relative to her feet. 5 During histestimony, Inspector Rodas was compelledtoretractthe charge, found in the FAA's complaint, that the stretcherunit usedby Respondent lacked a sufficient number ofsafety belts. He did so after being shown the Britten-Norman instructions for equipping the aircraftwith a stretcherunit; those instructions showed that the stretcher was to be equipped with two safety belts crossing overthe uppertorso ofthe patient. IfInspectorRodashad done his homework sufficiently, he would have learned that the stretcherunit was part ofa kit suppliedby a manufacturer who worked with**Britten~Norman,** the builder ofthe aircraft; the safety belts were part ofthekit thathad been installed on the aircraft. Hence, inthe absence ofevidence that Respondenthad removedone ormorebelts (and there was no such evidence), the number ofbelts seen in the photographs could nothave been insufficient. 6 The fact remains that neither Rodas nor ·his colleague hadperformed a thorough investigation on this issue. Much ofthetestimony during the hearing concernedthe Respondent's installation ofthe stretcherkit without first securing the approval ofthe FAA. Under Part 43, Appendix B, section (a) oftheFAR, a person performing a major alteration orrepair to an aircraft must obtainthe prior approval ofthe FAA for the workby submitting a Form 337 tothe local FSDO. InApri12009, the FAA learned thatthe Respondent had installed the stretcher unit in its aircraft without submitting a Form 337 to authorize the installation. As a result, the Miami FSDO sentthe Respondent a warning notice about this alleged violation ofthe Regulations. See Exhibit 'Infact, Rodas's testimony on**cross-examin~>tion** demonstrated that he did notknow how to calculate the center ofgravity. He is not a pilot. 6Theperson who strappedthe patientto the stretcher forherremoval from the aircraft erroneously locked the two upper belts parallel to each other, rather than criss-crossing them overhertorso. The Respondent, however, was notchargedwith locking the belts improperly; it was charged with having an insufficient number ofbelts, a charge that was palpably false. 9 

### •23. 7 The Respondentthen filed a Form 337, and the FAA closedthe case, notifying the Respondent that "this matter does not warrant legal enforcement action." Duringthe hearing, the Respondent maintained that the Complainant's decision to terminate the case without enforcement action barred the agency from now asserting a claim that the stretcherunithad been improperly installed and lacked the requisite number ofsafetybelts. A great deal oftestimony, includingthe testimony ofHernando Otero, Respondent's expert witness, was devoted to the question whether the FAAhad been correct ininsisting on the submission ofa Form 337.8 The issue ofwhetherthe removal oftwo seats and the installation of the stretcherunit in theirplace constitutes a major alteration requiringFAA approval is not relevantto this case, however. There may be a great deal to be said for the Respondent's contention thatthe FAA may notprosecute a civil penalty claim after notifying the putative Respondent that it is closing the books onthe matter without formal enforcement action. The same principles ofrepose that underlie the doctrines of

### resjudicata and double jeopardy would seem to dictate that the agency must beheldto its initial decision in such cases. Nevertheless, that issue is not ripe for decision here. The Respondent has not been charged in this case with causing a major modification ofits aircraft without FAA'sprior approval. Ithas been charged with operation ofan aircraft in a careless orreckless manner. That chargerelates tothe mannerinwhich the stretcherkit was installed- notto the installation ofthe kit

### perse. Hence, theRespondent's claimthatthe FAA'spriorno-enforcement decision exonerates it from the charge is incorrect. · Nevertheless, I find that there is no validity to the Complainant's allegation that operation ofthe aircraft with the stretcherinstallation as it was constituted a careless orreckless act that endangeredhuman life or property. The ineluctable fact is that neither ofthe Complainant's witnesses appears to have actually examined the manner ofthe stretcher's installation during the flight; ifthey did, neither testified to the results ofthat

7 The warning notice spoke about the fuilure to submit "approved data" to support the modification. It is clear, however, that the aircraft manufacturer's specific instructions for installation ofthe stretcherkit constituted sufficient "approved data." 8 Otero testified that a 337 was urmecessary because the installation ofthe stretcher kit, utilizing the same anchorage hardware as had been used for the passenger seats thatthe kit replace, was not a "majorrepair or alteration." 10 •installation. All that the record contains on the point is InspectorJester's photographs showingthe stretcher with a patient upon it

### after ithad been removed from the aircraft, cbupled with Inspector Rodas's inference that the stretcher had to have been installedbackwards. That inference is faulty, as we have seen, or at least completely unsupported. To learn whether the "' stretcher was properly installed, one would either have had to examine it while it was in the aircraft or interrogate someone who was onthe aircraft while the stretcher was carrying a patient. Neither ofthe two investigators did this. Nor was there any persuasive testimony that the mannerin which the unit was installed presented an unreasonable risk ofharm to its occupant or to the aircraft as a whole during the flight from Culebrato the main island ofPuerto Rico. In short, the Complainanthas failed to sustain its burden ofpersuasion as to this charge. As a result, the controversy over whether Form 337 or its approval by the FSDO was necessary is moot. IV. Respondent is Liable for Not Carrying a Current FAA-Approved Flight Manual. There does not appearto be much dispute concerningthe facts that gave rise to Complainant's third charge: failure to have onboardthe aircraft a copy ofthe current, approved night manual. As we have noted above,§ 121.14l(a) ofthe FAR requires a certificate holder to keep "acurrent approved airplane flight manual for each type ofaircraft that itoperates" and § 121.141(b) states that a copy ofthe manual must be carried "[i]n each airplane required to have an airplane flight manual in paragraph (a) ofthis section." When Inspector Jester asked the pilot ofRespondent's aircraftto exhibit a copy ofhis flight manual, the pilot produced a copy ofwhat is called FM-20. FM-20 is the flight manual issued by the manufacturer ofthe aircraft, Britten-Norman, Ltd., a British company with headquarters on the Isle.ofWight.9 The manual had been approved for use with the "Islander'' by the British government's counterpart ofthe FAA, the Civil Aviation Authority. Itcame withthe aircraft when the Respondent acquired it from a companybased on Tortola, one ofGreat Britain's Caribbean islands. At some point, however, the Britten-Norman company issued a version ofthe Flight Manual valid for operation ofthe aircraft in the United States. This version is calledFM-7. TheFAA approved the FM-7 version and required

9A copy ofFM-7 will be found in Exhibit 37. IIoperators to use it for domestic operations. So far as the record shows, the two versions are practically identical, except perhaps for changes in the spelling ofsome terms. The witnesses could point to only one substantive · difference: the fact that the gross weight figure in the U.S. version is 100 pounds lighter than the figure that appears in FM-20. 10 When the "Islander" was acquired by the Respondent, in July 2005, the FAA issued an Airworthiness Certificate for the aircraft. See Exhibit 35. The certificate coveredthe aircraft and its associated equipment. The Respondent's contention is that the FAA's airworthiness certificate includes approval ofthe Flight Manual that accompanied the aircraft and that was shown to the FAA representative who signed the certificate. Hence, says the Respondent, there was no violation ofthe FARprovisions thatrequire a "current approved" flight manual to be carried on an aircraft. The problem with the Respondent's position is that the word "current" cannot be stretched to mean "current at the time the initial airworthiness certificate was issued." The term "current" means "current at the time the FAAinspects the aircraft." At some point, the FAA in its wisdom decided that FM-7 should be adopted and should supersede FM-20. To do so was well within the discretion ofthe agency. Once that decisi6n was made and duly published, parties who operatedthe Britten-Norman "Islander" were duty-bound to replace their old flight manuals with the one that theFAA had blessed. The Respondent did not do so. Thereby, it violated§ 121.141 ofthe FAR. The Respondent also stresses the fact that the aircraft in questionwas ramp-inspected on a number ofoccasions, and no FAA inspector objected to the FM-20 manual that it carried. This is irrelevant. The failure oflawenforcement personnel to detect a violation on one or more occasions does not transmute the violation into compliance with the law when it finally comes to light. The FAA's lack ofenforcement action with respectto the flight manual during prior ramp inspections did not create an immunity from prosecution on this particularoccasion. The Respondent also argues that the Agreement between the United States and the United Kingdom on Certificates ofAirworthiness for Imported Aircraft, signed at London on December 28, 1971, 23 U.S.T. 4309, conferred on it the right to continueto use the same flight manual that had been suppliedby the aircraft manufacturer. Paragraph 2(b) ofthe

10 See Tr. 416-17. 12

•Agreement provides that ifthe exporting country's aeronautical authorities have certified than an aircraft is airworthy, "the importing State shall give the same validity to such certification as ifthe certificationhad been made by its o.wn competent aeronautical authorities

...". That is exactly what happened when the FAA issued an airworthiness certificate for ·• Respondent's aircraft in July 2005. But**th~t** is not the end ofthe matter. For paragraph 4 ofthe Agreement also gives the "competent aeronautical authorities ofthe importing State," i.e., the FAA, the right to prescribe "additional requirements which the importing State finds necessary to ensure that the product meets a level ofsafety equivalent to that provided by its applicable laws, regulations and requirements

...". This latter clause vindicates the FAA's right to change its mind and to direct thatthe FM-20 manual mustbe replaced by the FM-7 manual. That is exactly what seems to have happened here. Consequently, the international agreement does not absolve the Respondent from its duty to adopt the latest FAA-approved flight manual for use in its aircraft. Forthese reasons, I find and determine that the Complainant should prevail on the third ofits charges against the Respondent- failure to carry the current, approved flight manual on its aircraft. 

### V. A Civil Penalty of$550 is Appropriate. The charge for which the Respondent has been found liable

- failure to have a current flight manual aboard the aircraft

- is one that, standing alone, would nothave merited this lengthy and complexprosecutionto whichthe Respondent has been subjected. Inspector Rodas admitted as much while on the witness stand; in the absence ofthe first chargeoperating an unauthorized air ambulan.ce service- this case would have resulted in a warning letter. Nevertheless, the Complainanthas established, after a trial-type hearing in accordance with the Administrative Procedure Act, thatthe Respondent was in violation ofa provision ofthe FAR. The Respondent must therefore pay the price. · In determining what thatprice should be, a good place to start is with the Table ofSanctions, Appendix B to FAA Order No. 2150.38. It is in evidence as Exhibit 16. The Table ofSanctions lists different levels of penalties for violations by air carriers, depending on the size ofthe carrier. There was, however, no evidence placed in the record bearing on the size of the Respondent, either in terms ofits gross annual revenues orthe number of

13

•aircraft inits inventory orthe number ofemployees on its staff. Since the burden ofproofwith respectto those issues offact rested on the Complainant, we must assume that that the result most favorable to the Respondent is true. Hence, I conclude that the Respondent would be considered a "GROUP IV" air carrierunder OrderNo. 2150.3B, i.e., a small business concern. The order also provides, in Figure B-11 found on page B12, that "failure to maintain a current manual" warrants a "minimum"-level civil penalty. (The order addresses maintenance manuals, notflight manuals. I also recognize that "failure to maintain" is not the same as failure to have the manual on board. This, however, is as close as we can come, since the order does not specifically address the latter violation.) OrderNo. 2150.3B says that therange ofthe minimum penalty for a small business concern would be $550-$2,199. In this case, I conclude that a penalty at the lower end oftherange is appropriate, for several reasons. First, the fact is that the Respondent's aircraft was equipped with a$erviceable flight manual; the trouble was that it was out ofdate. The second is that there is no evidence thatthe Respondent committed the violation intentionally. Third is the fact that no adverse effect on the safety offlight was shown to have taken place as a result ofthe violation. 

### Inthe only reported case my research has uncovered where an airman was subjected to a civil penalty for not having a current flight manual, Eric W. Hereth, FAA OrderNo. 95-26, 1995 W.L. 853896 (1995), a $3,000 civil penalty was deemed appropriate in a case where the pilot had consulted the wrong flight manual and, as a result, ran out offuel and crashed-landedthe airplane. What happened in the instant case was not nearly as egregious and demonstrates, in my view, that a penalty atthe lower end ofthe range is appropriate. VI. Order. In consideration ofthe foregoing, and subject to review by the Administrator ofthe Federal Aviation Administration onappeal oronthe Administrator's ownmotion, IT IS ORDERED THAT- 'i 1. TheRespondent, Air Charter, Inc., is liable tothe United States of America, as represented by the Federal Aviation Administration, for a civil penalty in the amount offive hundred fifty dollars ($550.00);

14

•2. The amount ofthe civil penalty for which the Respondent has been held liable herein shall be paid to the Federal Aviation Administration forthwith; and 3. The charges againstthe said Respondent set forth in Paragraph III. 1. a. and b. ofthe Complaint are dismissed with prejudice. ·•

Isaac D. Benkin Administrative Law Judge



### [Note: This decision may be appealed to the Administrator ofthe FAA. TheNotice ofAppeal must be 'liled not later than 10 days after service ofthis decision (plus five additional days, ifthis decision is served by mail). 14 C.F.R. §§ 13.233(a), 13.211(e). The appeal must be perfected with a written briefor memorandum not laterthan 50 days afterservice ofthis decision (plus five additional days, ifthis decision is served by mail). 14C.F.R. §§ 13.233(c), 13.211(e). The Notice ofAppeal and brief or memorandum must be**eith1~r** 

### (a) mailed to the Federal Aviation Administration, 800 IndependenceAvenue, S.W., Washington, DC 20591; Attention: Hearing Docket Clerk, AGC-430, WilburWright Building-Suite2W1000, or (b) delivered personally orvia expedited courier service to the Federal Aviation Administration, 600 Independence Ave., S.W., WilburWrightBuilding-Suite2W1000, Washington, DC 20591, Attention: Hearing Docket Clerk,AGC-430. 14 C.F.R. §§ 13.233(a), 13.210(a)(2), (1). A copy ofthe Notice ofAppeal and brieformemorandum should also be sent to counsel for the FAA in this proceeding. 14 C.F.R. 

### § 13.233(a).]

15

•