U.S. DEPARTMENT OF TRANSPORTATION OFFICEOFHEARINGS 

# RECEIVED FEDERALAVIATIONADMINISTRATION 

## JUL -7 2014 

## HEARING DOCKET FEDERALAVIATION ADMINISTRATION, Complainant,
vs. LIBERTY FOUNDATION, Respondent. DocketNo. FAA-2012-0477 FAA CaseNo. 2011GL030070
Judge Sullivan
FAA'S CLOSINGARGUMENT This case came to hearing from April 22-25, 2014. At hearing, the FAA presented multiple expert witnesses as to the numerous regulatory violations committed by Respondent. Respondent, on the other hand, presented minimal evidence, including presenting no evidence whatsoever as to several ofthe legal and factual issues in this case. The evidence at hearing demonstrated that (I)Respondent had improperly performed a major alteration on civil aircraft N390TH in February 2011 by fabricating fuel tanks by welding; (2) this rendered the aircraft unairworthy; (3) Respondent repeatedly operated the aircraft in an unairworthy condition; (4) Respondent improperly repaired a fuel leak in one of the newly-fabricated tanks; (5) no approval for return to service was executed for this repair before the aircraft was operated; and (6) the improper repair provided further reasons why the aircraft was unairworthy. Judgment shouldbe grantedto the FAA on all allegations and for the full civilpenaltyproposed. FACTS IN EVIDENCE Civil aircraft N390TH was a World War II-era Boeing B-17G bomber, serial number 44- 85734, issued a Limited Airworthiness Certificate on May 3, 2005, under Limited Type
1Certificate L-1-3, which was issued on December 2, 19146. Cl, C2. The Limited Type Certificate provided that "If any repairs or modifications (other than those covered in the pertinent Army or Navyrepair manual) are made prior to or subsequent to NL certification, it is the responsibility of the owner to furnish sufficient evidence to a Civil Aeronautics Administration representative to show that the modified airplane maintains the same degree of airworthiness as the original. C2 atNote 3. Raymond Fowler is and at all material times has been Respondent's executive director and ChiefPilot. RIA at 6; R2 at 1. Cullen Underwood was apilot who had been involved with Respondent since 2006, T3 at 206, kept documents for Respondent, T3 at 246, and served as Respondent's representative at hearing. Starting in around October 2010, and at all pertinent times thereafter, Rodney Schneider was Respondent's Director ofMaintenance. T3 at 181-82; C26 at 7-8, 21; RIA at 10; R2 at 1. Schneider held a mechanic certificate, but did not hold an Inspection Authorization. C22 '1[1. Fowler, Schneider, and Underwood were considered the three principals at Respondent at the time the pertinent decisions were made concerning the maintenance and alterations at issue inthis case. T3 at 241. The February 2011Alteration Prior to the winter of 2010, N390TH's fuel system included six self-sealing bladder tanks, which was its original configuration. RIA at 20; C19 (listing rubber Goodyear fuel tanks); T1 1 at 66-67, 100-01, 195; T2 at 42-43, 176; C32 '1[8, C33 '1[8, C35 '1[15. Each ofthese tanks had
an aluminum support shell surrounding the bladdertank, with various straps connecting the fuel tanks to the interior structure ofthe wingthrough the shells. T1 at 66-67, 100-02, 195; T2 at 42-

1Thepage-numbering in the transcript starts anewfor each day ofthe hearing. Accordingly, this Motion will citeto "Tl"for the first dayofthe hearing, "T2" for the second day, "T3" for the thirdday, and "T4" for the fourth day. 243, 175; RIA at 20; C32**~** 8, C33**~** 8, C35**~** 15. The shells as originally configured were not capable ofserving as fuel tanks. Tl at 102; T2 at 43; C23 at 16. Prior to winter maintenance 2010-2011, Respondent's Director of Maintenance was Timothy Bourgoine. Tl at 56, 60-62; C35**~** 6. When Fowler decided to winter the aircraft in Georgia in orderto reduce costs, Mr. Bourgoineresigned as Director ofMaintenancebecausehe would not havebeen able to properly supervisethe maintenancebeingperformed on the aircraft. Tl at 70-72; C35**~** 8. At the beginning ofwinter maintenance 2010-2011, a decision had been made to replace the self-sealingbladder tanks byhaving brand new aluminum tanks manufactured, working with
a Designated Airworthiness Representative (DAR). T3 at 158-59; RIA at 12-13. According to Fowler, "at some point the decision was made" to instead replace the self-sealing bladder tanks by transforming existing components into fuel tanks. RIA at 13-14, 17; see also RIA at 18 (Fowler reporting that Schneider made decision "through the discussions he had with the group"); R2 at 1 ("Schneiderhas never had authority to make decisions onwhat maintenance to perform."). According to Schneider, he did not make the decision, and thought that the decision
was made byUnderwood or byFowler. T3 at 159, 175; C26 at 18. According to Fowler, he had multiple conversations with Schneider and Underwood and was briefed on the changes to be made. RIA at 14-15. According to Schneider, he did not speak directly with Fowler about the work until they were deciding how to draft the maintenance log entry. C26 at 18. Fowler personally observed the work that had been performed, and was involved in every decision made. RIA at 19-20. The ultimate work performed on the aircraft included removing and discarding the original bladder fuel tanks, along with the existing mounts and attachmentpoints that were part

3ofthe fuel tanks, then fabricating fuel tanks out ofthe support shells. T3 at 165; C22**~** 2-3. The February 2011 alteration included Underwood fabricating new mounts for fuel caps, boost pumps and level sensors. T4 at 38; T3 at 167, 176; C26 at 17; RIO at 2; RI2**~**4. The welding included welding shut thepreviously-bolted end cap, welding eachvent and fuel flow connection to the shells, and welding the newly-fabricated mounts to the shells. RIO at 2; Rl2**~** 4; see generally C4- Cl6. Itis undisputed that the alteration performed is not described in any ofthe B-17G's maintenance manuals, or any instructions for continued airworthiness. T1 at 133-34; CIS; C20; C26 at 36-37; C32**~** 24; C33**~** 24; C35**~** 29. It is undisputed that no approved data
was used to support the alteration, that there was no engineering approval, and that there was no supplemental type certificate. T4 at 38-39; See C22**~~** 3-4. Nor was any sort ofmanufacturing, engineering, or other diagram, drawing, or documentation used to support the alteration. T4 at 2I-24, 38-39. No otherB-17 has everhad fuel tanlcs like the ones installed onN390TH after the alteration. T1 at I05; C32**~** 10, C33**~** 10, C35**~** 17. The fabrication of fuel tanks out of the support shells via welding was physically performedby welders at Cobb Industrial Fabricators, a specialty welding shop with expertise in welding. T3 at 190-93, 200-02I; RIO at I; C26-27. The least experienced welder used for the alteration had over 20 years' experience. T3 at 201. According to Wilkins and Underwood, the welding was "normal," "simple," "non-complex," and "elementary," by which they meant that the welding was the type ofwelding that couldbeperformed in a certainposition. T3 at I95-96, 221-25; RIO at 2; Rl2**~** 4. Wilkins acknowledged that hehad no experience with aviation orthe Federal AviationRegulations (FARs). T3 at 20I-02. After the newly-fabricated tanks were installed, they were lealc checked, but no other tests or checks were performed, including no vibration testing being performed. T3 at I65, 168;

4C26 at 26, 50. Schneiderrelied on Underwood for the determination ofwhether the welding was appropriate. C26 at 52. By maintenance log entry dated Febmary 24, 2011, Schneider approved the aircraft for return the aircraft to service. C3 at 4. At the time, the aircraft total time (ACTT) was 2474.7 hours. C3 at 4. Thetext ofthe maintenancelog entrywas as follows: Removed all six fuel tanks. Removed bladder liners from the tanks and repaired the aluminumtanks bywelding. Ref. AC 43-13 section 8-32. Fuel tanks are made of aluminum sheet, 1100 

### Yz hard. Reinstalled the original aluminum tanks using the original mounting methods and the original fuel line, boost pump, fuel cap, vent line, and level transmitter mounting locations and methods. The tanks were leak checked and operationally checked with no discrepancies found. Ref. B-17 Maintenance and Erection manual, pages 196-199 C3 at 4; see also C22**~5-6.** The entry was incomplete, inaccurate, and misleading in that (1) it referenced a repair, not an alteration; (2) it did not reference the fabrication ofcomponents; (3) it represented that the "original" aluminum tanks had beenreinstalled when there were no original aluminum tanks; and ( 4) it did notreference the fabrication ofnew tanks out ofthe shells. See C3 at 4; seealso C22**~** 7, 9. Fowler was involved in conference calls with Schneider, Inspector Miller, and Inspector Alderman,2 and Fowler reported that he relied on Schneider's opinionthatthe alteration was not
a major alteration, but Schneider admitted during his deposition that he had no independent opinion, but was himselfrelying on the purported opinions ofMiller and Alderman. T3 at 160- 62; RIA at 15-16, 18; see also R2 at 2. Further, Fowler and Schneider stated that not only did theyrely on Miller and Alderman's opinion that the work was aminorrepair, butthat theyrelied

2Forthe first time at hearing, Respondent asserted thatthere hadbeen an earlier conversationthathad onlyinvolved Miller. SeeT4 36-37. Thisnewlyrecalled conversationthatdidnotinvolve InspectorAlderman was an obvious fabrication designed to avoidAlderman's explicit testimony andbecausethe FAAhad not calledbothAlderman and Miller as their factual testimonywouldhave beenduplicative. This fabrication can, and should, bedisregarded. 

### 5onMiller and Aldermanto draft the maintenancelog entryitself. T3 at 162-63; C26 an6-17; R2 at 2. Schneidertestified thatthis conversation occurredbefore February24,2011. T3 at 161, 163. However, as Inspector Aldermantestified, hehad never met or spoken to Schneideruntil weeks after the aircraft was returned to service and had been operatedbyRespondent. T2 at 14, 19, 25; see also C36**~** 3. Further, when a conversation did occur in March of2011, Respondent did not inform Miller and Aldennan ofthe true nature ofthe workperformed on the aircraft. T2 at 19; C36**~** 5. Regardless, contraryto Schneider's representations, Alderman and Miller did not drafttheFebruary2011 maintenance log entry. T2 at 15; seealso T2 at 20-21. Additionally, Bourgoinetestified thathe was contactedbythe Respondent inMarch 2011 about the possibility ofperforming an inspection on the aircraft. Tl at 72-73; C35**~** 9. Although the aircraft had already operated, Schneider indicated to Bourgoine that the paperwork for the fuel tank alteration was still being worked on. Tl at 74-75; C35**~** 10, 13. Bourgoine conferred with Miller, and determined that Miller had not seen any paperwork on the alteration. T1 at 75- 76; C35**~** 11. Prompted by Bourgoine's inquiries, Fowler then contacted Bourgoine, explained how Respondent had chosento alter the existing shells in order to save money, and asserted that Respondent had now presented full information to Miller, who had said that the alteration was minor. T1 at 76-78; C35**~** 11. However, when Bourgoine conferred with Miller again, Miller
was still unaware ofthe true nature ofthe alteration. T1 at 77; C35**~** 12. At his discovery deposition, Fowler insisted that there had been no cost difference between having new tanks manufactured through a DAR and the welding process ultimately implemented, and that cost had no effect on Respondent's decision. R1A at 18-19. However, during his perpetuation deposition, Fowler admitted that Respondent had actually saved tens of thousands ofdollars byusing the welding process, since the anticipated price ofmanufacturing

6new tanks through a DARwas $50,000 and the ultimateprice oftheprocessused was something lessthan $10,000. RIB at 37-38. Consequences of the February 2011Alteration Athearing, the FAA presented the live testimony and affidavits ofthree expert witnesses
on aviation maintenance. Each ofthese experts testified that the work done onthe aircraft's fuel system inFebruary 2011 was an alteration, that itwas a major alteration, and thatitrendered the aircraft unairworthy. Additionally, a finding offact was made by the Judge before the hearing thatthe Administratorhas already determined that any changeto or addition ofa permanent fuel tank is a major alteration. See C23 at 22, 23, 26, 29. It is undisputed that, as provided in the FARs, an aircraft can only be returned to service after a major alteration by an IA and that a Form 337 must be completed. It is undisputed that Schneider did not hold an IA and that no Form 337 was completed. It is undisputed that ifan aircraft ifreturned to service by a non-IA mechanic and without a Form 337, then the aircraft is in an unairworthy condition. Respondent presentedno evidencethat theFebruary2011 work was not an alteration, that it was not a major alteration, orthat the aircraft remained in an airworthy condition afterthe alteration. Aviation Safety Inspector's (ASis) Thomas Soerens and Thomas Duellman, along with Respondent's former Director ofMaintenance TimothyBourgoine, all testifiedthatthe workwas
an alteration. T1 at 107; T2 at 51, 178; C32 '1[11; C33 '1[11; C35 '1[18. Each testified that, for a variety of reasons that will be discussed below, the February 2011 alteration was a major alteration. T1 at 108-12, 118-29, 156-57; T2 at 51-60, 178-83; C32 '1['1[13-19; C33 '1['1[13-19; C35 '1['1[20-24; see also C22 '1[8. Each testified that, for a variety ofreasons that will be discussed below, the February 2011 alteration left the aircraft in an unairworthy condition. T1 at 106-12, 118-29, 156-57,160, 171-72,178-84, 186-87; T2 at 51-60,69-70, 177-78; C32 '1['1[27-30; C33

7-,] 27-30; C35 -,]-,] 30-31; see also C22 -,] 10. The ASis testified that the alteration was not performedusingmethods, techniques, and practices acceptableto the Administrator. T2 at 62-63, 184-85; C32 -,] 26; C33 -,] 26; see also T3 at 157-58; C22 -,] 11. The ASis testified tlmt the alteration did not restore the aircraft to its original orproperly altered condition. T2 at 63, 185- 86; C32-,] 27; C33-,] 27; see also C22-,] 11. Additionally, the ASIs testified that that the maintenance log entryplacedbyRespondent in the aircraft logbook did not accurately or completely describe the work performed, and that a mechanicreading the entrywouldnotknow whathad actuallybeen done to the aircraft. T2 at 71, 73-74, 94.3 Respondent'spaid expert, GaryNorville, testified that thebasic design ofthe B-17G was (in pertinent part) to have "a set oftanks in each wing." T3 at 81. Norville asserted that altering the fuel system would not change the basic design ofthe aircraft as long as it still had six fuel tanks, but then admitted that at least some changes in the nature ofthe fuel tanks would be a change in the basic design, but did not explain how he might determine what kind ofchange would orwouldnotbea change inthebasic design. T3 at 86, 96-97. Norville also testified that changing the gross weight or center ofgravity ofthe aircraft would be a major alteration but after repeated prodding from opposing counsel, adjusted his testimony and stated that it wouldn't be a major alteration if the aircraft was still within an unspecified "envelope." T3 at 86. Norville admittedthat it wouldbenecessaryto make some sort ofdetennination as to the magnitude ofthe change. T3 at 95-96. Schneider testified that the methods, techniques, practices, materials, and tools that he used inthe February2011 alteration were ones that hehad usedpreviously. T3 at 170. However, Schneider admitted that he had never actuallyparticipated in an alteration like the oneperformed

3 ExpertwitnessBourgoine also providedtestimonyto this effect, but it was later struck. See T1 at 130-31.
8on this aircraft. T3 at 181. Further, Schneider had previously agreed that the methods, techniques, and practices used to fabricate the fuel tanks were so far below the standards acceptable in aviation that the installation ofthe tanks would never have been approved by a component authority. T3 at 179; C22 'j! 11. He had also previously agreed that the methods, techniques, and practices that he used to perform the alteration were not acceptable to the Administrator, and were inviolation of§ 43.13(a). T3 at 180; C22 'j! II. The June 2011 Repair In June 2011, one ofthe welds on the endcap ofthe newly-fabricated #I tank on the aircraft failed and began leaking. T3 at 130; C26 at 40-42; C22 'j!'j! 18-19; see T3 at 106-10. Respondentperformed arepair onthe leakbyapplying PR2001 tank sealerfrom the outside and thenbolting an aluminum U-channel (also known as a C-channel) over the sealer. T3 at 111-13, 132; C26 at 42-43; C22 'j! 18. The sealant shouldbe applied from the inside. C26 at 43, 49. The repair performed was not one contained in any maintenance manual or instructions for continued airworthiness. T1 at 133; T2 at 75; C26 at 44-45; C22 'j! 22; C32 'j! 32; C33 '1]32; C35 '1]32
... The repair was leak-checked by partially filling the tank and then performing a limited visual and olfactory checkfrom several feet away. C26 at 47. One option to repair the leak would havebeen to remove the tank from the aircraft, then purge and re-weld it. C26 at 48. This was not done because oftime constraints; the aircraft needed to depart onthe morning ofMonday, June 13, 2011. C26 at49-50. Fowler was present with the aircraft and was made aware ofthe leak and the repair. C27 at 34-35. Underwood was also present and participated in the repair process. T3 at 108-12, 131; C26 at 44; C27 at 34. The aircraft was flown on June 13, 2011, and was lost during the flight. See generally C17; T2 at 33-34. In a maintenance log entry dated June 13, 2011, butnot actually

9madeuntil June 14, 2011, after the loss ofthe aircraft, Schneider described the repair ofthe fuel tankleak. C26 at 45-46; C3 at 8; C22**~** 20. When asked at his deposition, Schneider stated that he did not remember executing a return to service prior to the flight. C26 at 51. However, at hearing, he testified that he did remember making an entry in the aircraft's discrepancy log prior to the flight. T3 at 157. According to John Hess, the pilot ofthe June 13, 2011 flight, Schneider did make an entryin the discrepancy log prior to the flight, and although Hess could not remember what the log entry was, hebelievedthat itwas appropriate. T3 at 121-23; R11 at 1-2. Consequences of theJune 2011 Repair At hearing, the FAA presented live testimony and affidavits from three experts that the repmr was improperly performed and provided additional reasons why the aircraft was unairworthy. All three experts provided evidence that the repair was inherentlyimproperbecause the fuel tanks were an unapproved part that should never have been on the aircraft. T2 at 78-79, 192-93; C32**~** 33; C33**~** 33; C35**~** 33. The ASis additionally testified that the methods, techniques and practices used to repair the leak were not acceptable to the Administrator. T2 at 76-77, 82-83, 191-92; C32**~** 34; C33**~** 34; see also C22**~** 22. All three experts stated that the repair was a major repair. T1 at 132-33; T2 at 92-93, 192; C32**~** 35; C33**~** 35; C35**~** 34. All three experts stated that the June 2011 repair was another reason why the aircraft was unairworthy. T1 at 133; T2 at 75-76, 83, 93-94, 192-93; C32**~** 35; C33**~** 35; C35**~** 34; see also C22**~~** 22-24. The repair did not restore the aircraft to its original or properly altered condition. C22**~23.** Schneider testified that the methods, techniques, practices, materials, and tools that he used inthe June 2011 repair were ones that he had used previously, but he did not identity any

10instances inhis aviation career where he had previouslyparticipated in such a repair. T3 at 170. However, Schneider had previously admitted that the methods, techniques, and practices that he had used to perform the June 2011 repair were not acceptable to the Administrator, and were in violation of§ 43.13. T3 at 180-81; C22**~** 22. Respondent had insured the aircraft for several million dollars and after the loss ofthe aircraft in June 2011 received an insurance payout of$2.7 million. RlB at 39. As is typical with aircraft insurance, Respondent's policy included a provision that the aircraft would not be coveredifthe aircraft was inanunairworthy condition at the time ofits loss. RlB at 39-40. Number of Operations Between the February 2011 alteration and the June 2011 repair, the aircraft was operated for 104.3 hours. Compare C3 at 4 (ACTT of2474.7) with C3 at 8 (ACTT of2579). Duellman testified that, based on the number ofhours flown and the capacity ofthe tanks, the minimum possible number of flights operated during that time would have been 12. T2 at 188-89. Bourgoine testified that during tour season (spring and summer), Respondent operated the aircraft on at least 10 and as many as 35 flights per week, with most flights lasting 25-30 minutes. Tl at 56-58. Evidence was also presented that the aircraft was flown from Goergia to Houston, Texas and then Burbank, California during March 2011. T1 at 72, 75; T2 at 22; C35**~** 9. In additionto the alteration and repair at issuein this case, the aircraft'smaintenance records also indicate distinct maintenance actions at different ACTTs on March 13, March 25, April21, and May 14. C3 at 5-7. John Hess testified that he had made three flights in the aircraft on June 11, 2011. T3 at 106-07. Respondent presented no evidence contesting the FAA's allegation that the aircraft was operated on at least twelve occasions after the February2011 alteration and the June 2011 repair, for atotal ofat least 13 flights at issue in this case.

11Sanction Underthe Administrator's published sanction guidance, penalties are examinedbased on the number ofacts ofviolation, rather than the number ofregulatory subsections violated. T3 at 10-11; C38 at 7-10. The penaltyrange for operation ofan unairworthy aircraft that mayhave, or has, an adverse effect on safe operation, is Moderate to Maximum. T3 at 16; C38 at B-14, Fig. B-1-1(2). The penalty range for an incomplete or unsigned release ofan aircraft is Minimum to Maximum. T18-19; C38 at B-13, Fig. B-1-g(l). Thepenaltyranges for a small business concern that does nothold acertificate, such as Respondent, are: Minimum Moderate Maximum $550- $2199 $2200- $4399 $4400

- $11000 T3 at 16-17; C38 at B-6. The proposed penalty of $43,250 for 13 flights/acts ofviolation is approximately $3,300 per flight, near the middle ofthe Moderaterange. See T3 at 17; C38 at B6. The proposed penalty for returning the aircraft to service after the June 2011 repair without a maintenance release was $6600, at the middle ofthe Moderate to Maximumrange. See T3 at 19; C38 at B-6. Respondentpresented no evidence as to sanction. SUMMARY OF THE ARGUMENT The replacement ofthebladder fuel tanks inN390TH with fuel tanks fabricated from the aluminum shells was a major alteration that rendered the aircraft unairworthy. The central dispute ofthis caseis Respondent's contention thatthis was not amajor alteration and, therefore, it was permissibleto return the aircraft to service and operate it despite the lack ofan Inspection Authorization and despite the lack of a Form 337. However, Respondent at hearing presented virtually no evidence regarding this or other technical issues in the case. The FAA, by contrast,

12presented multiple expert witnesses who described in detail the reasons why the February 2011 alteration and June 2011 repairwere improper and rendered the aircraftunairworthy. This closing argument is divided into 14 parts. The first 11 parts address the regulatory classifications applicable to the facts ofthis case, and why all ofthe various violations alleged in the Amended Complaint are supportedbythe facts and the law. The next 2parts address whether Respondent can evade responsibility for its direct violations as owner and operator of the aircraft, and whetheritis responsible for theunderlyingmaintenance violations committedbyits agents. The final part addresses sanction. As discussed in Part I, the February 2011 fabrication offuel tanks out ofthe aluminum shells was an alteration, not arepair. The change from self-sealingbladder fuel tanks to weldedaluminum fuel tanks was a design change, not amererestoration to aprevious functioning status. As discussedinPart II, theFebruary24,2011, maintenance log entry did not describe the work performed infabricating the fuel tanks

- itinaccuratelypresented the alteration as a minor repair to existingmetallic fuel tanks, and made no mention offabrication. Section43.9(a)(l) was violated by the improper maintenance log entry, and §91.407(a)(2) was violated by the subsequentimproper operation ofthe aircraft. As discussed in Part III, the February 2011 alteration was a major alteration, not aminor alteration. The alteration did not use accepted practices, was not performed with elementary operations, and affected qualities of the aircraft affecting airworthiness. Further, as the Administrator has determined, any alteration of a permanent fuel tank is a major alteration. As discussed in Part IV, the "major" nature of the alteration had immediate regulatory consequences. An IA was required to approve the aircraft for return to service, but Schneider did not hold one. A Form 337 was required, but none was completed. Section 43.7(a) was violated

13when the aircraft was returned to service by an unauthorized person, §43.9(d) was violated by the failure to complete a Fonn 337, § 43.5(b) was violated when the aircraft was returned to service without completing a Form 337, and §91.407(a)(l) was violated when Respondent operatedthe aircraft without aproperreturnto service. As discussed in PartV, the alteration was improperlyperformed. The alternation was not contained in any applicable manual, it was not performed in a manner acceptable to the Administrator, and it did notrestore the aircraft to its original orproperly altered condition. The alteration violated§§ 43.13(a) and (b) ofthe Federal AviationRegulations. As discussed in Part VI, N390TH was unairworthy after the February 2011 alteration because it did not meet its type certificate or type design. The aircraft's limited type certificate explicitly requires that any newly-designed repair or alteration first be presented to the FAA along with evidence that it was an appropriate one - a step which did not happen here. Additionally, the alteration rendered the aircraft unairworthy because it was returned to service byanunauthorized individual, no FAA Fonn 337 was executed, and the aircraft was not restored to its original or properly altered condition. As discussed in Part VII, N390TH was unairworthy aftertheFebruary2011 alterationbecauseitwas not in a conditionfor safe operation. The unsafe condition ofthe aircraft is amply demonstrated bythe brisk failure ofthe improperly fabricated fuel tanks. As a result, Respondent violated§ 91.7 when it subsequentlyoperated N390TH in an unairworthy condition. As discussed in Part VIII, the June 2011 repair was improperlyperformed. First, there is
no such thing as a properly perfonned repair on a component that should not exist in the first place. Second, the repair methodology chosen was improper, and was based on Respondent's need to operatethe aircraft on a schedule. As aresult, Respondentviolated§§ 43.13(a), (b).

14As discussed in Part IX, the June 2011 repair was a major repair. As with the February 2011 alteration, the "major" status of the repair results in numerous regulatory requirements applying, none ofwhich were followed. As discussed in Part X, no maintenance record entry was made for the June 2011 repair before the aircraft operated, and was lost, on June 13, 2011. The failure to make the entry violated§ 43.5(a) and the subsequent operationviolated§ 91.407(a)(2). As discussed in Part XI, N390TH was unairworthy at the time ofthe June 13, 2011, flight. In addition to the unairworthiness caused bythe February 2011 alteration, the June 2011 repairintroduced newproblems- the repair was improperlyperformed, there was no FAA Form 3 37, there was no authorized return to service, and the aircraft was not in conformance with the particularlanguage ofits type certificate. Respondent violated § 91.7(a) by operatingthe aircraft inanunairworthy condition. As discussed in Part XII, Respondent's second affirmative defense fails. Respondent has presentedno legal or factual basis to be excused from liability for its violations based on an oral representation from an FAA inspector, even ifsuch a representation was made. As discussed in Part XIII, Respondent's first affirmative defense fails and it is responsible for the underlying maintenance violationsinthis case. As discussed inPartXIV, the sanctionimposedbythe FAAinthis case is reasonable and appropriate. ARGUMENT I. TheFebruary2011 WorkOnTheAircraftWas AnAlteration There is no dispute as to the facts of what work was performed on the aircraft that culminated in the February 24, 2011, maintenance record entry. It is undisputed that N390TH

15was equipped with bladder fuel tanks supported by aluminum shells, that the bladder fuel tanks
were removed and discarded, that fittings were fabricated and welded onto the shells, that aluminum plates were welded onto the shell to cover the numerous holes in the shells, that the removable end ofthe aluminum shells were welded shut, and that the newly created components
were installed on the aircraft and used as fuel tanks. See T1 at 66-67, 100-02, 195; T2 at 42-43, 175-76; T3 at 165, 167, 176; T4 at 38; Cl9; C22

# n 22-23; C23 at 16; C26 at 17; C32**~** 8; C33**~** 8; C35**~** 15; RIA at 20; RIO at 2; R12**~**4; seegenerally C4- C16. The FARs do not contain a definition of"repair" or "alteration." See 14 C.F.R. 1.1. The older Civil AviationRegulations defmed a "repair" as an operationrequired to restore an aircraft to a condition for safe operation, including mending or replacement ofdamage or broken parts, and an "alteration" as any appreciable changeinthe design ofan aircraft. C.A.R. §§ 18.3, 18.4. This work was manifestly an alteration. Before the work, the aircraft had bladder fuel tanks, supportedby aluminum shells. Afterthework, the aircraft had a completely different kind offuel tanks. This is an appreciable changeinthe design ofan aircraft, not a meremending ofan existing component or the identical replacement ofan existing component. At hearing, the FAA presented three expert witnesses, who all agreed thatthework was an alteration. T1 at 107; T2 at 51, 178; C32**~** 11; C33**~** 11; C35**~** 18. Respondentpresentedno evidenceto the contrary. II. The February 24, 2011, Maintenance Record Entry Did Not Describe The Work Performed The February 24, 2011, maintenance record entry did not describe the work actually performed. Section 43.9(a) ofthe Federal Aviation Regulations provides, in pertinent part, that eachpersonperformingmaintenance or an alteration on an aircraft, airframe, orcomponent shall make an entry in the maintenance record ofthat equipment containing a description ofthe work performed. 14 C.F.R. §43.9(a)(l). Further, "No person may operate an aircraft that has

16undergone maintenance, preventative maintenance, rebuilding, or alteration, unless
... (2) The maintenance record entry required by §43.9 or § 43.11, as applicable, ofthis chapter has been made." 14 C.P.R. §91.407(a)(2). As discussed above, the actual work performed onthis aircraft was to alter the aircraftby removing and discard the existing bladder fuel tanks, fabricating attachments, welding those attachments onto an aluminum shells, welding aluminum plates to fill up holes in the aluminum shells, welding shut the removable end ofthat aluminum shell, and then installing the weldedaluminum shell as fuel tanks. Themaintenancerecord entrymadebyMr. Schneider, on the otherhand, stated: Removed all six fuel tanks. Removed bladder lines from the tanlcs and repaired the aluminum tanks bywelding. Ref: AC-43 section 8-32. Fuel tanks are made of aluminum sheet, 1100 Y2 hard. Reinstalled the original aluminum tanks using the original mounting methods and the original fuel line, boost pump, fuel cap, vent line, and level transmitter mounting locations and methods. The tanks were leak checked and operationally checked with no discrepancies found. Ref. B-17 Maintenance and ErectionManual, pages 196-199. C3 at 4. Themaintenance entry does not accurately and completelydescribe the workperformed. Itrefers to a repair, when there was an alteration. Itrefers to repairing aluminum tanks and then reinstalling the "original" aluminum tanks when there had neverbeen aluminum tanks installed
on N390TH. It fails to mention the fabrication ofindividual attachments to be welded onto the
new fuel tanks, much less that the fuel tanks themselves hadjust been fabricated. Two expert witnesses testified at hearing thatthe February24, 2011 maintenancelog entry did not accurately
or completely describe the work performed, and that a mechanic reading the entry would not know what work had actually been done on the aircraft. T2 at 71, 73-74, 94. Respondent presented no evidence to contradict either this expert testimony or the inaccuracies and omissions in the maintenance log entry. As Schneider had previously agreed, the entry "was

17incomplete andmisleading, inthat [he] did notrepair aluminumtanks, butinstead [he] fabricated aluminum tanks from the aluminum shells that had previously provided support and protection for thebladdertanlcs [he] removed from N390TH." C22

### -,r 7. As a result,§ 43.9(a) was violated when Respondent's Director ofMaintenance failed to make the required maintenance entry describing the work actually performed, and Section 91.407(a)(2) was violatedrepeatedlywhen Respondent subsequently operatedthe aircraft. III. TheAlterationWasA MajorAlteration The February 24, 2011, alteration was a maJor alteration, not a mmor one. The replacement ofthe bladder fuel tanks with the welded-aluminum fuel tanks was not only capable ofaffecting the airworthiness ofthe aircraft, it did affect the airworthiness ofthe aircraft. Itwas, additionally, not performed according to accepted practices or with only elementary operations. Accordingly, itwas a majoralteration. TheDefinitions section ofthe FederalAviationRegulations provides that: Major alteration means an alterationnotlisted inthe aircraft, aircraft engine, or propeller specifications- (1) Thatmight appreciably affect weight, balance, structural strength, performance, powerplant operation, flight characteristics, or otherqualities affecting airworthiness; or (2) Thatis not done accordingto acceptedpractices orcannotbe doneby elementaryoperations. 14 C.P.R. 1.1 (emphasis in original). Although it is no longer used in the regulations, the term "minor alteration" refers to any alteration other than a major alteration. See C.A.R. §§ 18.40, 18.41 (defining a "minor alteration" as any alteration not capable ofaffecting the airworthiness ofthe aircraft, and defining a "majoralteration" as any alterationthat is not aminor alteration).

18As is apparent onthe face ofthis definition, the bar tojump from a minor alteration to a major alteration is a low one. In order to be major alteration, it need only be the case that the alteration might affect any quality affecting the airworthiness ofthe aircraft

- in order to be a minor alteration an alteration must be incapable ofnoticeably affecting any quality that affects the airworthiness ofthe aircraft. There are three ways in which an alteration can be a major alteration

- (1) the alteration might affect a qualityofthe aircraft affecting airworthiness; (2) the alteration is not perfonned in accordance with accepted practices; and (3) the alteration cannot be completed with elementary operations. The alteration ofN390THis amajor alterationunder all three standards. A. The Administrator Has Already Determined That Any Change To A Fuel TankIs A Major Alteration As established on summaryjudgment, theAdministratorhas already determined that any change to, or addition of, a permanent fuel tank is a major alteration. C23 at 23-23, 26, 29. Further, while any addition ofa fuel tank or change to a fuel tank is a major alteration, this case presents not a modest change, but rather the wholesale removal ofone set offuel tanlcs and the addition of fuels tanks constructed of a completely different material4 The Administrator's interpretation ofhis ownregulation, as expressedin FAA Order 8900.1, is binding andrequires a finding that the alterationhere was amajor alteration. B. The AlterationDid Affect TheAirworthiness oftheAircraft All that the FAA needs to demonstrate to show that the alteration was a major alteration is that it might appreciably affect a quality ofthe aircraft affecting airworthiness. See 14 C.F.R. § 1.1. Here, the undisputed facts demonstrate that the alteration did affect the airworthiness of the aircraft. See C32**~~** 13-14; C33**~~** 13-14; C35**~** 20. In June 2011, the welding ofthe endcap

4Underwood's contentionto the contrary- thatthe fuel tanlcs were identical before and afterthe alteration- is preposterous. SeeT4 at 38. 19ofthe newly-fabricated #I tank failed and the tank began leaking fuel. T3 at 130; C26 at 40-42; C22 'jl'jll8-19; see also T3 at I06-10. Whether or not fuel leaks out ofan aircraft at a rapid pace such that the aircraft cannot be safely flown is manifestly a quality affecting airworthiness. See C32 ,[13; C33 'jll5; C35 'jl24. In order to find that the alteration of N390TH was a minor alteration, it would have to be found that the alteration was not capable ofaffecting any quality affecting the airworthiness ofthe aircraft, eventhough the alteration did affect a quality affecting the airworthiness ofthe aircraft. The alteration was, therefore, a major alteration. C. The Alteration Was Capable ofAffecting the Characteristics ofthe Aircraft Relating to Airworthiness A third reason whythe alteration was a major alteration is the myriad ways in which the alterationmighthave appreciably affected qualities ofthe aircraft affective airworthiness: The new welded-aluminum fuel tanks had a higher fuel capacity than the original bladder fuel tanks, affecting the weight and balance ofthe aircraft; T1 at 110-11; T2 at 53-54, 178- 81, 183; C32 'jll4; C33 '1[14; C35 '1[21; see also T3 at 86. The change infuel capacity could affect fuel uptakebecausethe fuel line wouldnotbeinthe
sameplacerelative to thebottomofthe fuel tank; T1 at 111; Thehigher fuel capacitycould affect the stress placed onthe wing structurebythe fuel tanks; T1 at 119-20; C32 '1[14; C33 '1[14; C35 '1[21; see 14 C.P.R. § 25.963(a) (requiring that fuel tanks mustbe able to withstand the vibration, inertia, fluid loads, and structural loads placed uponit); This was exacerbated because there wereno baffles included inthe welded-aluminum tanks. There were no baffles in the original rubber fuel tanks, but a fully rigid shell of weldedaluminum does not respond in the same way to the force ofthe shifting ofthousands of pounds ofaviation fuel as the bladder did;; Tl at 119-20; T2 at 54-55, 177; C32 '1[14; C33

20'jj 14; C35 'jj 21; see 14 C.P.R. §25.965(a) (requiring testing ofthe tanks ability to withstand fluid pressuresunder adverse flight circumstances); The newly-fabricated attachments and fittings were, instead ofbeing attached to a semi-rigid bladder fuel tank, attached to a fully rigid welded-aluminum fuel tank, which could impact how the fuel system was able to cope with physical stress on the system; T2 at 52-53, 183; C32 'jj 14; C33 'jj 14; C35 'jj 21. The welded-aluminum tanks were susceptible tovibration in ways that the bladder fuel tanks
were not; indeed, rigid metallic fuel tanks are subject to certification testing requirements concerning vibration that non-metallic tanlcs are not, see 14 C.P.R. §25.965(b); T2 at 54, 177; C32 'jj 14; C33 'jj 14; C35 'jj 21. The use of different kinds of aluminum alloys in the new fuel tanks could affect the performance ofthe fuel tanks and the welding, but no analysis was ever performed on this subject, andthewelding did quickly fail; T2 at 55-57; C32 'jj 14; C33 'jj 14; C35 'jj 21. The standard for whether an alteration is a major alteration or a minor alteration is simply whether the alteration might affect a quality affecting airworthiness. 14 C.P.R.§ 1.1. The FAA's burdenis not to provethat the alteration did affect characteristics relating to the airworthiness of the aircraft (although, as discussed above, there can be no legitimate dispute about the fact that the alteration did so affect the aircraft), but only that it might affect a quality affecting the airworthiness ofthe aircraft. An alteration is not a major alteration because it does affect these qualities ofthe aircraft, but because it might affect them. All ofthe above-listed items are ways in which the alteration might have affected qualities affecting the airworthiness ofthe aircraft

- in order for the FAA's claim to fail, a finding would have to be entered that it was notpossible

21for any of the above considerations to affect any quality affecting the airworthiness of the aircraft. The alterationwas amajor alteration. D. The Alteration Changed The BasicDesign ofthe Fuel System Throughout this litigation, Respondent has chosen to largely disregard the explicit definition of "major alteration" given in the PARs, and has instead focused on subpart (a) of Appendix A ofPart 43, which contains a list ofexamples ofmajor alterations. Among those exampleis that any change inthe "basic design" ofa fuel systemis amajor alteration. Indeed, on summary judgment the Respondent argued that the actual definition contained in § 1.1 was contradictory to Appendix A ofPart 43 and, therefore, should be ignored entirely. Consistent with the plain language ofthe regulations, the ultimate definition of "major alteration" is found in § 1.1, and while the list ofexamples in Appendix A is helpful, it must onlyberead in light of that definition, and the ultimate questionpresented to the Judge is whetherthe definition applies. Regardless, however, the alterationperformed onthe aircraft was a change in the basic design of thefuel system ofthe aircraft. Although Respondent presented no direct evidence as to whether its alteration ofthe fuel system was a change in the basic design of the fuel system, Respondent's did present paid witness Norville, who testified that prettymuch any change in the fuel system would be a change inthe basic design, except that it wouldn't be a change inthe basic design as long as it still had six fuel tanks. See T3 at 81, 86, 96-97. Anyargument founded onthis testimony will fail. As an initial matter, Norville's definition ofbasic design was incoherent. Ittakes only a minimal level ofexposure to the world ofaviation maintenance to realize that one cannot simply change the material of aircraft components willy-nilly. And, as Norville himselfadmitted, one cannot actuallyjustreplace the six fuel tanks with any other sixfuel tanks and have it not change



### 22the basic design ofthe system. T3 at 96-97. Norville failed, however, to reconcile this admission with his prior assertion

- clearly changing the material ofthe fuel tank can be a change in the basic design ofthe fuel system, contrary to Norville's original testimony, butNorville presented
no testimony as to how he wouldknow whether ornot a change in material would be a change in thebasic design, or whetherthis change inmaterial was a change inthebasicdesign. This failure is fatal to Respondent's position for two reasons. First, it demonstrates the inherent emptiness ofNorville's opinion onthe subject ofwhat constitutes a change in the basic design of an aircraft. Second, it leaves Respondent unable to connect Norville's opinion to the facts ofthis case. Even accordingto Norville, some changes in the materials usedto constructthe fuel tanks would be a change in basic design

- but Respondent presented no fact or expert testimony that the particular changes it made to the fuel system were or were not on the wrong side ofthis unexplained line. The FAA, by contrast, presented expert testimony that explicitly addressed the question ofwhether the alteration performed byRespondent was a change in the basic design ofthe fuel system, and those experts concluded that it was. T1 at 122-25, 156, 182-83; T2 at 59; C32 '1[18; C33 '1[18; C35 '1[23. The alterationwas amajor alteration. E. The AlterationWas NotPerformed InAccordance WithAccepted Practices In addition to affecting qualities affecting the airworthiness ofthe aircraft, the alteration
was a major alteration because it was not done in accordance with accepted practices. Fabricating a fuel tank out ofan aluminum shell by welding on attachments and metal plates to close openings is not an accepted practice, as that term is used in the PARs. None of the witnesses consulted, all ofwhom had extensive aviation maintenance experience, had ever seen
an alteration of this nature performed, where a fuel tank in a B-17 (or any type certificated

23aircraft) was fabricated in the heavily-welded way the new fuel tanks were in this aircraft, and
none believed that the alteration was performed in accordance with accepted practices. T1 at 105; T2 at 57-58, 176-77, 182; T3 at 157-58; C32**~~** 10, 18; C33 

# n 10, 18; C35**~** 17. Respondent presented no meaningful testimony onthis point- Schneider originallytestified that the manner in which this alteration was performed was like ones he had used previously in his career, T3 at 170,but on cross-examinationhe admittedthat he hadnever actuallyparticipated in
an alteration like the oneperformed on this aircraft, T3 at 181. The alteration was not perfonned in accordance with acceptedpractices and, therefore, was amajor alteration. F. The AlterationWasNotDone BvElementary Operations An alteration that requires other than elementary operations to perform IS a maJor alteration. 14 C.P.R.§ 1.1. As all ofthe expert witnesses who addressed this question testified, the nature ofthe welding performed in the fabrication ofthe new fuel tanks from the aluminum shells could not be performed with only elementary operations

- that this would be ajob that could not be performed by most mechanics, and would require a specialist. Tl at 122, 156-57; T2 at 58-59, 182; C32**~** 17; C33**~** 17; C35**~** 22. Indeed, the mechanic who legally performed the maintenance

- Schneider

- did not do the welding on the shells and even Underwood, who was qualified at hearing as an expert in welding, did not do the welding. 

### See T3 at 214, 216-17, 220-21. Instead, Respondent sent the shells to a specialtywelding shop to do the welding, where the welding was done by specialists who eachhad at least two decades ofexperience. T3 at 223-24. That the welding mayhavebeen "simple" or "non-complex" or "elementary" in the parlance ofthe welding community because ofthe physical position required to do the welding is irrelevant to the question ofwhether the welding was performed using elementary operations as that term is used in the Federal Aviation

24Regulations. The alteration could not be performed using elementary operations, but instead required the use ofhighly specialized and experienced welders employing techniques and skills notknown to mostA&P mechanics. The alteration was, accordingly, amajor alteration. IV. Because the Alteration Was A Major Alteration. Only the Holder of an Inspection Authorization Could Approve the Aircraft for Return to Service and a Form 337 Was Required It is undisputed that, if the alteration was a major alteration, then a Form 3 3 7 was required (but was not executed) and that only the holder ofan Inspection Authorization (which Schneider was not) could approve the aircraft for return to service. Itis also undisputed that ifan aircraft is approved for returned to service after a major alterationby a non-IA and/or without a Form 3 37, the aircraftis unairworthy. Holding a mechanic certificate authorizes an individual to perform (most) maintenance and alterations on an aircraft, but does not authorize returning aircraft to service. 14 C.F.R. § 65.81(a). Holding an airframe rating authorizes amechanic to approve an aircraft for return an aircraft to service after an airframe maintenance alteration

- except for a major alteration. 14 C.F.R. § 65.85(a). In order to approve an aircraft for return an aircraft to service after a major alteration, a mechanic must also hold an Inspection Authorization. 14 C.F.R. §65.95(a)(1). No personmayreturn an aircraft or component thereofto service except for the Administrator or as expressly authorized to do so in the regulations. 14 C.F.R. 43.7(a). "No personmay operate any aircraft that has undergone maintenance, preventative maintenance, rebuilding, or alteration unless- (1) it has beenreturned to service by a person authorized under§ 43.7 ofthis chapter." 14 C.F.R. § 91.407(a)(1). Schneider did not (and does not) hold an Inspection Authorization. Accordingly, Schneider could not approve the aircraft for return to service after the February 2011 major

25alteration. As a result, Respondent violated§ 43.7(a) when its Director ofMaintenance returned N390TH to service. Respondent then repeatedly violated § 91.407(a)(1) by operating N390TH whentherehadbeenno authorized return to service. Additionally, because the alteration was a major alteration, section 43.9(d) requires that "majorrepairs and alterations shall beentered on a form, and the form disposed of, in themanner described inAppendix B, bythe personperforming the work." 14 C.F.R. §43.9(d). Appendix B to Part 43 requires that an FAA Form 337 be executed. 14 C.F.R. Part 43, App. B(a). It is undisputed that no FAA Form 337 was completed for the February 2011 alteration. As a result, Respondent violated §43.9(d) and also §43.5(b), which prohibits the aircraft from being returnedto service unless the Form 337 hasbeencompleted. See 14 C.F.R. §43.5(b). V. TheAlterationWas NotProperlyPerformed The February2011 alteration didnotcomplywiththe requirements of§ 43.13(a) or (b) of the Federal Aviation Regulations- the methods used were not acceptable to the Administrator, andthe aircraft was notrestoredthe aircraftto its original orproperly altered condition. Section 43.13 ofthe Federal Aviation Regulations contains the basic performance rules for maintenance and alterations. "[E]ach person performing maintenance, alteration, or preventive maintenance on an aircraft, engine, propeller, or appliance shall use the methods, techniques, and practices prescribed in the current manufacturer's maintenance manual or Instructions for Continued Airworthiness prepared by its manufacturer, or other methods, techniques, and practices acceptable to the Administrator, except as noted in 43.16." 14 C.F.R. 43.13(a). "[E]ach person maintaining or altering, orperformingpreventivemaintenance, shall do that work in such amanner and usematerials ofsuch a quality, that the condition ofthe aircraft, airframe, aircraft engine, propeller, or appliance worked on will be at least equal to its original or

26properly altered condition (withregard to aerodynamic function, structural strength, resistance to vibration and deterioration, and otherqualities affecting airworthiness)." 14 C.F.R. § 43.13(b). Mostmaintenance and alterations performed on aircraft fulfill the requirements ofPart43 because they are perfonned in accordance with a maintenance manual system published bythe manufacturer ofthe aircraft, or in accordance with a supplemental document approved by the Administrator, such as a Supplemental Type Certificate or an Airworthiness Directive. Here, however, Respondent came up with its own alteration, and cannot take shelter behind any of these standards

- it is undisputed that the alteration was not contained in any maintenance manual, Instructions for Continued Airworthiness, or other document approved by the Administrator (such as approved data, an engineering approval, or a supplemental type certificate). T1 at 133-34; T4 at 21-24, 38-39; CIS; C20; C22**~~** 3-4; C26 at 36-37; C32**~** 24; C33**~** 24; C35**~** 29. Accordingly, in order for Respondent to comply with § 43.13(a), it needed perform the alteration on N390TH using "other methods, techniques, and practices acceptable to the Administrator." See 14 C.P.R.§ 43.13(a). Two ofthe FAA's expert witnesses directly addressed this point, testifying that the alteration was not performed using methods, techniques, and practices acceptableto theAdministrator. T1 at 133-34; T2 at 63, 185-86; C22**~~** 3-4; C26 at 36- 37; C32**~~** 24, 27; C33**~~** 24, 27; C35**~** 29. Further, Schneider had previously agreed that the alteration did not use methods, techniques, and practices acceptable to the Administrator. T3 at 157-58; C22**~** 11. Respondent presented no evidence to rebut these expert opinions5 The alteration didnot complywith§ 43.13(a).

5 Athearing, Respondentplacedinto evidence Advisory Circular43.13-IB. Respondenthas previously assertedthat this AdvisoryCircularapproved the alteration, buthas neverprovided anyevidence to this effect, andonits face tbe AC has no pertinence to this alteration. 27Additionally, the alteration did notrestore the aircraft to a condition "atleast equal to its original or properly altered condition." See14 C.F.R. 43.13(b). There are all ofthe problems identified in Part Ill above. And, again, it is manifest that the February 2011 alteration introduced new weaknesses into the aircraft because the failure ofthe fuel tanks in June 2011

- caused by the welding

- was one that would not, and could not, have occurred had the aircraft been in its original or properly altered condition. Both ofthe expert witnesses consulted on this subject opined that the alteration did not restore the aircraft to its original or properly altered condition. T2 at 63, 185-86; C32**~** 27; C33**~** 37. Respondent presented no evidence to rebut these expert opinions. Thealterationdidnot complywith 14 C.F.R. §43.13(b). VI. The Aircraft Was Not InAnAirworthy Condition Afterthe February2011 Alteration BecauseIt DidNotMeet Its Type CertificateorTypeDesign The installation of the welded-aluminum tanks in N390TH rendered the aircraft unairworthy, both because it was no longer in conformance with its type certificate or type design and becauseit was no longerin a conditionfor safe operation. The latterwill be discussed in SectionVIIbelow. The former willbediscussed here. An aircraft may not be operated unless it is airworthy. 14 C.F.R. §91.7. In order for an aircraft to be airworthy, it must be in conformance with its type certificate or type design, and in
a condition for safe operation. In re Husted, FAA Order2010-9. An aircraft is unairworthywhen it does not meet its type certificate or type design, or when it is not in a condition for safe operation. !d. The concept ofan aircraft not meeting its type certificate or type design is a broad one. An aircraft ceases to conform to its type certificate or type design when it is repaired with a method that has notbeen approved or accepted bythe Administrator, when the aircraft is not in its original or properly altered condition, when it is returned to service by an unauthorized

28person, Id., when a required component is replaced with an improper substitute, In re Rushmore Helicopters, FAA Order 2012-8; when a component is cracked, or when the aircraft has any unresolved maintenance discrepancies or is overdue for a required inspection, In re Whitley; FAA Order 2009-4. An aircraft's airworthiness certificates cease to be effective when the aircraft is notmaintained in accordance with Part43 and Part 91. 14 C.P.R.§ 21.181(a)(l). For each and all of these reasons, the aircraft did not meet its type certification or type design after the February2011 alteration. T1 at 125, 128; T2 at 69, 186-87; C32**~** 27; C33**~** 27. First, the aircraft did not meet the particular language listed in its type certificate. The limited type certificate for the B-17G is brief and lack details due to the age ofthe design and due to the nature ofthe aircraft as a purpose-built bomber that was only later given a limited civilian certification. See C2; T1 at 106. However, despite the general lack ofspecificity in the type certificate, the February 2011 alteration still left the aircraft out ofcompliance withthetype certificate because the type certificate expressly states that for any repair or alteration ofthe B17G that is not done in accordance with the applicable manuals, the proposed maintenance or alteration must be presented to the Civil Aeronautics Administration (now the Federal Aviation Administration) along with evidence demonstratingthat therepair or alterationis appropriate. C2 at 1n.3; T1 at 128; T2 at 69-70; C32 '1[27; C23**~** 27; see also T1 at 171-72. Itis undisputed that Respondent made no attempt to make a demonstration to the FAA that the alteration was appropriate, much less obtained an agreement from the FAA that they had presented evidence establishing that the alteration was appropriate. Respondent presented no rebut the plain language ofthe type certificate, or the expert testimony about its meaning. After the February 2011 alteration, the aircraft didnotmeet theterms ofits type certificate.

29Additionally, the aircraft after the alteration did not meet the terms ofits type design, as embodied in the type certificate and the various maintenance, repair, and parts manuals. T1 at 172; T2 at 186-87; C32 '1]27; C33 '1]27. Again, Respondent presentedno evidence onthis issue. The aircraft failed to meet its type certificate or type design for many other reasons. As discussed in Part V above, it was altered in a manner that was not acceptable to the Administrator and was not restored to its original orproperly altered condition. T2 at 62-63, 184- 86; C32 '1]'1]26, 28; C33 '1]'1]26, 28; see also C22 '1]11. No approved data was used in performing the alteration, arequirement for amajor alteration. T4 at 21-24, 38-39; C22 '1]'1]3-4; see C32 '1]. 28; C33 '1]28. As has been discussed above, because the alteration was a major alteration, Schneider
was not authorized to return the aircraft to service and a Form 3 3 7 was required and there is no dispute that an aircraft returned to service after a major alteration by a non-IA and without a Form 3 3 7 is in an unairworthy condition. Each ofthese reasons, standing alone, rendered the aircraft unairworthy and not in conformance with its type certificate or type design. See Husted, FAA Order 2010-9, Rushmore Helicopters, Order 2012-8; see also C32 '1]29; C33 'I] 29. The aircraft was in an unairworthy condition at all times aftertheFebruary2011 alteration. VII. TheAircraftWas Not In An Airworthy ConditionBecause ItWas Not inA Condition for Safe Operations In addition to not meeting its type certificate or type design, N390TH was unairworthy becauseitwas notina condition for safe operation. SeeHusted, Order2010-9. The February 2011, alteration involved replacing bladder fuel tanks with aluminum fuel tanks with extensive welding ofnew components and plates, and welding shut the previouslyremovable ends of the shells. Less than four months later, the welding failed, resulting in a substantial fuel leak. As common sense would indicate, and as supportedbythe experttestimony at hearing, this demonstrates that the aircraft was not in a conditionfor safe operation. T1 at 128-

3029; T2 at 70, 183-84; see C35**~** 31; C32**~** 30; C33**~** 30. Simply put, an aircraft is unsafe for flight whenithas six improperly-fabricated fuel tanks thatmaycrack open at anymoment. Respondent presented no evidence on the subject of whether the aircraft was m a condition for safe operation. The Judge should find that the aircraft was not in a condition for safe operation after the February 2011 alteration and was, therefore, unairworthy. VIII. TheJune2011 MaintenanceWas Improperly Performed The June 2011 repair did not comply with the requirements of§ 43.13 ofthe Federal Aviation Regulations

- the methods used were not acceptable to the Administrator, and the results did not restore the aircraft to its original orproperly altered condition. As with the February 2011 alteration, it is undisputed that the June 2011 repair was not contained in any maintenance manual, instructions for continue airworthiness, airworthiness directive, or other document approved or accepted bythe Administrator. See Tl at 133; T2 at 75; C26 at 44-45; C22**~** 22; C32**~** 32; C33**~** 32; C35**~** 32. Accordingly, for the June 2011 repair to comply with §43.13(a), it must have been conducted using other methods, techniques, and practices acceptable to the Administrator. However, no such methods, techniques, or practices
wereused, oreven existed. As an initial matter, there was no such thing as an acceptable repair on these weldedaluminum fuel tanks

- they never should have existed in the first place, and no repair was acceptable on these unapproved parts. T2 at 76-77, 82-83, 191; C32**~** 33; C33**~** 33; C35**~** 33. The repair was, therefore, a violation of§ 41.13(a). Additionally, since the welded-aluminum configuration was, as discussed at length above, not aproper alteration, restoring the fuel tank to the improperly altered condition was, by definition, a failure to restore it to the original or properlyaltered condition. See C22**~** 22. The repairwas, therefore, aviolation of§ 43.13(b).

31Even setting aside the bars to the possibility ofcompliance with§§ 43.13(a) and (b), the repair was not properlyperformed. The fuel tank should have beenremoved from the aircraft so that a better repair could have been performed, including sealing from the inside. T2 at 76, 82; C32**~** 34; C33 '1]34. An analysis was required to determine whether the bolts used by Respondent were sufficientto properly support the fuel tank structure, and the methodologyused by Respondent was one never seen by the testifying expert in his decades of aviation maintenance experience. T2 at 76-77. Further, no properpost-repair inspection was performedRespondent shouldhave performed an inspection with full tanks, with the tanks pressurized and theboostpumps activated. T2 at 77, 192-93; C32 '1]34; C33**~** 34. Instead, Respondent conducted the repair in an unsafe manner in order to meet its flight schedule. See C26 at 48-50. The repair
was not performed using methods, techniques, and practices acceptable to the Administrator, in violation of§ 43.13(a). Contrasting with this evidence against Respondent, Respondent presented only limited testimony from Schneider, who asserted generally that the methods, techniques, practices, materials, and tools that he used for the June 2011 repair were ones that he had used in his
career. T3 at 170. However, he did not provide any examples ofwhen he had employed such methods, techniques, or practices. See id. And his testimony at hearing contradicted his prior admissions that the methods, techniques, and practices he used in performing the June 2011 repair were not acceptable to the Administrator, and had violated§ 43.13(a). T3 at 180-81; C22 '1]22. The Judge should find that the June 2011 repairviolated§§ 43.13(a), (b). IX. TheJune 2011 RepairWas A MajorRepair The June 2011 repairwas amajorrepair. As provided in 14 C.P.R. § 1.1: Major repairmeans arepair:

32(I) That, ifimproperly done, might appreciably affectweight, balance, structural strength,performance,powerplant operation, flight characteristics, orother qualities affecting airworthiness; or (2) Thatisnot done according to acceptedpractices orcannotbedoneby elementaryoperations. 14 C.F.R. 1.1. The requirements for a major repair min·or those for a major alteration- a Form 337 is required and the aircraft can only be approved for return to service by the holder of an Inspection Authorization. 14 C.F.R. §§ 43.9(d), 65.85(a), 65.95(a)(1). As with an alteration, an aircraft maynot be operated after a repairunless ithasbeen returned to service by an authorized individual- inthe case ofamajorrepair, the holder ofan IA. See 14 C.F.R. § 91.407(a)(1). Athearing, the experts consultedtestified thatthe June 2011 fuel tank repair was a major repair, notingthe nature ofthe repair, includingthe unorthodox use ofthe C channel, the drilling anduse ofbolts intherepair. Tl at 132-33; T2 at 92-93, 192. Respondentpresented no evidence
on this subject TheFARs were violated when the aircraft was approved for return to service by
an unauthorized person without a Form 337, and when it was subsequently operated by Respondent 14 CF.R. §§ 14 C.P.R. §§ 43.5(b), 43.7(a), 43.9(d), 91.407(a)(1). 

### X. No Maintenance Record Entry Was Made For The June 2011 Repair Before The AircraftWas Operated It is undisputed that the aircraft was repaired, was approved for return to service by Schneider on June 13, 2011, and was operated by Respondent on June 13, 2011. It is also undisputed that Schneider made an entry in the aircraft's maintenance log describing the repair. However, as Schneider has admitted, he did not make that maintenance log entry until several days later, after the aircrafthadbeen operated. "No person may approve for return to service any aircraft, airframe, aircraft engine, propeller, or appliance, that has undergone maintenance, preventative maintenance, rebuilding,

33or alteration, unless

- (a) the maintenance record entry required by §43.9 or §43.11, as applicable, has been made." 14 C.P.R. §43.5(a). "No person may operate an aircraft that has undergone maintenance, preventative maintenance, rebuilding, or alteration, unless
... (2) The maintenance record entry required by§ 43.9 or§ 43.11, as applicable, ofthis chapter has been made." 14 C.P.R.§ 91.407(a)(2). Respondent now argues that Schneider made a maintenance entry in the discrepancy log that was carried onthe aircraft, and that it caunotproduce this documentbecause the discrepancy logwas lost in the fire that destroyed the aircraft. At his deposition, Schneider admitted that the June 13, 2011 maintenancelog entrywas notmadeuntil afterthe flight, and after consulting with Miller as to what the appropriate text for the entry was. C26 at 45-46; see C3 at 8. When specifically asked at the deposition about how the aircraft was approved for return to service, Schneider had no recollection ofhaving made an entry in the discrepancy log. C26 at 61. As a result, the FAA amended the complaint to include an allegation concerning this failure. Subsequently, Schneider testified at hearing that he had made an entry in the aircraft's discrepancy log, although he provided no detail as to the contents of that entry. T34 at 157. According to Schneider, the source ofthis information was the pilot on the flight, John Hess. Hess testified at the hearing, indicating that a discrepancy log entry had been made

- but while Hess testified that he believed that the discrepancy log entry was appropriate, he also could provideno details as its contents. T3 at 121-23; 

### Rll at 1-2. Resolving this matter presents a credibility question for the Judge, which the Judge shouldresolve in favor ofSchneider's initial deposition testimony, and against Schneider's later hearing testimony. First, all other things being equal, Schneider's original testimony is more credible- it was earlier intime, it was a frank admission on a subjectthat Schneiderhad not yet

34discussed with his attorney, and it was made without realization of the consequences of the admission. The hearing testimony, on the other hand, was later in time, was only made after consultationwithhis attorney, and was onlymade after it was knownthat Respondent was facing monetary consequences for the conduct. On this alone the Judge should credit the deposition testimonythat no maintenance log entrywas made. Other factors also weigh against creditingthe hearing testimony. In addition to the motivation to fabricate, the hearing testimony did not appear to be based on any actual recollection, but rather on Hess's assumptions. Schneider did not remember making the discrepancy log entry, but rather believed that he had because Hess said that he had. See T3 at 157. And Hess could not remember anything about the discrepancy log entry, but rather relied on the assumption that he was an experienced pilot who knew that a log entry was required, and so "remembered" that one must have been made and that it must have been appropriate. See T3 at 121-23. Additionally, the story presented at hearing does not explain why Schneider had to call Miller to find out what the appropriate language was for the maintenance log entry- ifSchneider had already made a log entry for the repair, whywouldhe needMillerto draft one for him? The credible evidence from Schneider's deposition indicates that no maintenance log entry was made for the June 2011 repairbefore the aircraft was operated on June 13, 2011. As a result, Respondentviolated§ 43.5(a) and§ 91.407(a)(2). XI. The June 2011 Repair Provided Additional Reasons Why The Aircraft Was Unairworthy As discussed in Parts VI and VIII above, the aircraft was unairworthy at all times after the February 2011, alteration. In addition to reasons relating to the February2011, alteration, the aircraft was unairworthy as aresult ofthe June 13, 2011, repair.

35As discussed in Part VI above, an aircraft is unairworthy if it fails to meet its type certificate or type design, and there are numerous ways in which an aircraft can fail to meet its type certificate ortype design. As discussed inParts VIII and IX above, the June 2011 repair was improperlyperformed,
no FAA Form 337 was completed, and the aircraft was approved for return to service by a mechanic who was not authorized to do so. Either the improperrepair orunauthorized return to service are sufficient, standing alone, to render N390TH unairworthy. See Husted, Order 2010-9; T2 at 75-76, 83; C32**~** 35; C33**~** 35. Additionally, as with the alteration, this repair was one that was not described in the aircraft's maintenance manuals and, under the terms ofthe type certificate, therefore had to be presented to and approved by the FAA, which it was not, thus rendering the aircraft out of conformance with its type certificate ortype design, andunairworthy. See C2 at 1n.3; Tl at 133; T2 at 93-94; see also T2 at 132-93. Each ofthese reasons provides an independentbasis for determining that the aircraft was unairworthy at the time ofthe June 13, 2011, final flight, and therefore an additional reason why Respondent's operation ofthat flight violated§ 91.7. XII. Respondent's SecondAffirmative DefenseFails Respondent presents two affirmative defenses, under which it argues that it is not responsible for any ofthe operational violations described above. First, that itjustifiablyrelied
on Schneider. Second, that it relied on the advice oftwo FAA Aviation Safety Inspectors. Both defenses fail. The second will be addressedhere, andthe first inPartXIIIbelow. Respondent's second affirmative defense- presented in its Answer, but largely ignored since

- is that it is shielded from liability for its violations because it spoke with two of its

36volunteers who happened to be FAA inspectors. According to Fowler and Schneider, they had a conference call with David Miller and David Aldermanprior to approving the aircraft for return to service, and during this conversation Miller and Alderman has advised them as to whether the alteration was an alteration or a repair, whether it was major or minor, and that the inspectors drafted the maintenance log entry. T3 at 160-63; C26 at 16-17; RIA at 15-16, 18; R2 at 2. Even ifthis sequence ofevents is to be believed (and it should not be), these facts would not form a defense to the violations charged. There is no legal basis for the notion that the oral representation of an employee ofthe FAA forms a bar on a subsequent fmding ofviolation. Simplyput, the individual opinion ofan individual employee does not give a Respondent carte blancheto performimpropermaintenance and operateunairworthy aircraft. Regardless, the version ofevents presentedbyRespondent is a complete fabrication. Itis clear that the actual course ofevents was that Respondent did not contact Miller and Alderman until after Respondent was already operating the aircraft, and even then Respondent misrepresented to Miller and Aldennan the nature ofthe work ithad performed on the aircraft. As Inspector Alderman explicitly testified at hearing, the conversation with Fowler and Schneider did not take place until March 20II, and Alderman knew this because he had never met or spoken to Schneider prior to meeting him while volunteering to work on the aircraft in March 2011. T2 at 14, 19, 25; C36 '1]3. And even then the full extent ofthe alteration was not revealed. T2 at 19; C36 '1]5. Inspector Alderman's testimony was corroborated by Respondent's former Director of Maintenance, Timothy Bourgoine. Bourgoine also spokewith Schneiderin March 2011, afterthe aircraft had been operated, and Schneider admitted to Bourgoine that Respondent still hadn't completed the paperwork for the alteration. T1 at 74-75; C35 '1]10, 13. Bourgoine later spoke

37withFowler (after Fowler was alerted that Bourgoine had spoken with Miller about the fuel tank work), and Fowler said that Respondent had presented full information to Miller

- but when Bourgoine conferred with Miller, he learned that Fowler had not actually told Miller what had been done withthe aircraft. T1 at 76-78; C35**~~** 11-12. Respondent's lack of credibility in this sequence ofevents is emphasized by Fowler's apparent inabilityto keep his story straight when it comes to the reasons for fabricating new fuel tanks by welding up the existing support shells. At his original deposition, Fowler had insisted that the Respondent had not saved any money by switching to the welding alteration, and that costhad no effect onthe decision. RIA at 18-19. But Fowlerlater admitted that Respondent had actually saved tens ofthousands of dollars by doing Underwood's welding project instead of using an engineer orDAR. RIB at 37-38. Respondent's story ofrelying on FAA inspectors is a fabrication- a sad effort to throw its volunteers under the bus rather than taking responsibility for its decisions. In reality, the Respondent did not consult with these volunteers until after it was flying the aircraft, and even then concealedthetrue nature ofthe alteration from them. And evenifthe events as presentedby Respondent were accurate, there is no legal basis for excusing a Respondent's violations based
on an informal opinion from mechanics not involved in an alteration, even where those mechanicshappento be FAA employees. Respondent's second affirmative defense fails. XIII. Respondent CannotEscapeResponsibilityfor Its RegulatoryViolations Respondent's first affirmative defense and the FAA's allegations regarding Schneider's agency status presented legallydistinctbut factually intertwined issues, and so will bepresented here together. The regulations violated in this case fall into two categories: (1) regulations that

38apply to the owner or operator of the aircraft; and (2) regulations that apply to individuals performingmaintenance onthe aircraft, or approving itfor returnto service. As alleged in the Amended Complaint, Respondent is liable for both categories of violation. It is directly responsible for the first category ofviolations (that apply to owners and operators), and it is vicariously responsible for the second category through its Director of Maintenance, Rodney Schneider. Respondent asserts that its Director of Maintenance was not its agent with respect to performing maintenance and that, therefore, it is not responsible for his conduct or the second category ofviolations. A determination that Schneider was not Respondent's agent would not absolve Respondent ofits direct responsibility for the first category ofviolations. Respondent's first affirmative defense is that it was entitled to rely absolutely on Schneider's approval for return to service. Schneider's signature on a maintenance record entry, Respondent claims, absolves it ofany legal responsibility for Respondent's subsequent operation ofthe aircraft and for its failures as owner ofthe aircraft to ensure that appropriate maintenancerecords were made. The evidence at hearing demonstrates that Respondent is responsible for both categories of violation. This evidence bears reviewing. With regards to the February 2011 alteration, although none ofthe individuals involved appears willing to personally admit responsibility, the evidence clearly indicates that all ofthe decisions were made by Fowler (Respondent's Chief Pilot and Executive Director) and Underwood (Respondent's representative at hearing). In his deposition testimony, Fowler presents the decision in passive voice and attempts to diffuse responsibility. RIA at 13-14 (stating that "at some point the decision was made"); RIA at 18 (stating that Schneider made the decision "through discussions he had with the group)." But Schneider unequivocally stated that he did not make the decision to perform the alteration

- it

39was Underwood who informed him ofthe decision, after consultation with Fowler. T3 at 159, 175; C26 at 18; see also R2 at I (Fowler's declaration stating that "Schneider has never had authority to make decisions about what maintenance to perform"). It was Underwood who presented the idea offabricating new fuel tanks by welding the existing support shells and who managed the project. Schneider was not directly involved with the fabrication ofthe new fuel tanks

- he participated in removing the original bladder tanks and support shells, but it was Underwood who handled the fabrication ofthe new fuel tanks, including the fabrication ofnew attachpoints tobewelded onto the shells. T4 at 38; T3 at 167, 176; C26 at 17; RIO at 2; Rl2 '\[4;
see generally Rl2. Fowler was involved in the decision-making process every step ofthe way, includingpersonal observations ofthe work being performed. RIA at 14-15, 19-20. Schneider's signature was the one ultimately placed on the maintenance log entry (because he was the only mechanic involved), but he relied on Underwood for the determination ofwhether the welding
was appropriate. C26 at 52. Further, although this story is a fabrication, Schneider and Fowler's
ownversion ofevents is that Schneider did not evenknow what to write for the maintenance log entry, butrelied on Miller and Alderman to draft the log entry for him. T3 at 162-63; C26 at 16- 17; R2 at 2. In short, withregards to the February 2011 alteration, the entire process was run by Fowler and Underwood, with Schneider's participation being limited to helping remove components from the aircraft at the beginning and then writing his name and certificate number
onthemaintenance log entry at the end With regards to the June 2011 repair, we again see Underwood involved in the process and Fowlerfully informed oftheprocess. T3 at 108-12, 131; C26 at 44; C27 at 34-35. These facts, when applied to the legal principles involved, demonstrate that Respondent is responsible for both categories ofviolation. TheFebruary2011 alteration and June 2011 repair

40were, in a legal sense, perfonnedby Schneider, Respondent's Director ofMaintenance, in thathe
was willing to "supervise" and use his mechanic certificate to approve the aircraft for return to service. However, it has become clear that Schneider's role

- especially with regards to the February 2011 alteration- was aproforma one. He did not make decisions, butrather did what Underwood and Fowler told him to do, while Underwood managed the project (including fabrication of components) with Fowler's blessing. These facts are fatal to Respondent's position. Because Schneider was simply going along with Respondent's decisions and following Respondent's instructions, that makes him Respondent's agent, and makes Respondent vicariously liable for the regulatory violations committed by Schneider at Respondent's behest. Further, Respondent's positionthat it was somehow entitled to rely on Schneider's approvals for return to service (via maintenance log entries that, according to Schneider, he had to ask others howto write) in these circumstances is laughable. Respondent was fully aware ofeverythingthat hadbeen done with the aircraft. Schneider was not some outside mechanic provide expert advice upon which Respondent was relying

- rather, he was an in-house mechanic who provided no pertinent expertise, butinstead operated as directedbyFowler and Underwood. Having directly made the decisions about the alterations and repairs as charged in the Complaint

- and then the decisions to operate the aircraft after those repairs and alterations

- Respondent cannotnow excuse itselffrom regulatoryliabilityfor its unsafe conduct. XIV. The Sanction Imposed Is Appropriate As discussed at hearing, the FAA's sanction calculations are based on the number ofacts ofviolation, rather than the number ofindividual regulations violated. Inthis case, fourteen acts ofviolation were used- 12 flights betweenFebruary24, 2011 and June 12, 2011, the final flight
on June 13, 2011, and Schneider's failure to make a maintenance log entry for the June 2011

41repair before returning the aircraft to service6 A penalty of $43,250 was imposed for the 13 original acts ofviolation, with an additional $6,600 imposed in the Amended Complaint for the failure to make anymaintenancelog entry for the June 2011 repairpriorto operatingthe aircraft. Although the Judge is not bound by the FAA's sanction guidance, found in FAA Order 2150.3B (excerpts of which were admitted into evidence as C38), it is ultimately helpful to examine the Order in that any appeal in this case will go back to the agency, which is bound by that sanction guidance. SeeIn the Matter ofScottNovak, FAAOrderNo. 2014-1 (2014). As aninitial matter, the evidencepresented more than supports the FAA's contention that at least 12 flights tookplace from February24, 2011 through June 12,2011. Indeed, the evidence indicates that Respondent operated the aircraft on over ahundred flights during that time period. The FAA's calculation ofthe number offlights was based on the number ofhours flown and the maximum cruising time of the aircraft, which meant that the aircraft would have made a minimum of 12 flights in the 104.3 hours offlight time. C3 at 4, 8; T2 at 188-89. However, the time frame at issue here was during Respondent's tour season, when it operated the aircraft 10- 35 times aweek, on flights usuallylastinghalfanhour orless. Tl at 56-58. Overthe 104.3 hours and the months ofMarch, April, May, and part ofJune, the aircraft would not have flown 12 flights ofeightto ninehours each, butrather 140 to 200much shorterflights. As explained at hearing, the applicable sanction guidance range for operation of an unairworthy aircraft is Moderate ($2200- $4399) to Maximum ($4400- $11000). T3 at 16-17; C38 at B-6; C-38 at B-14, Fig. B-1-1(2). Respondent's actions here could have easilyjustified a much larger penalty- for example, a hundred flights at the middle ofthe range ($6600) would

6Althoughthe Amended Complaint charges Respondent withregulatoryviolations for the underlying maintenance and log entries from February2011 andJune 20II, no independent act ofviolationwas singled outforthese violations, and no enhancement oftheproposedpenaltywas applied. Accordingly, the questionofwhether Schneiderwas Respondent's agentpertains onlyto the $6,600 penalty imposed for the failure to make a maintenance log entryprior to approving the aircraft for return to service onJune 13, 2011. 42have produced a civil penalty of $75,000 even when the most lenient multi-flight penalty cap
was applied (down from $660,000 without the cap), treating the violations as inadvertent7 and non-systemic. See C38 at 7-13, Fig. 7-I. Instead, the FAA has imposed a very lenient penalty, using anunrealistically conservative number offlights and applying apenaltyper act ofviolation that falls in the middle ofthe Moderate range, rather than in the middle of full Moderate to Maximum range called for bythe sanction guidance. There is no basis for concluding that this penaltyis inappropriatelyhigh. With regards to the failure to make any maintenance log entry for the June 2011 repair prior to operating the aircraft, the closest entry in the sanction guidance (for an incomplete or unsigned release) calls for a Minimumto Maximum penalty ($550 to $11000). T3 at 16-19; C38 at B-6; C38 at B-13, Fig. B-1-g(l). Here, the actual conduct was significantly worse than that described by the closest entry in the sanction guidance

- the maintenance entry was not simply incomplete or unsigned, it was not made at all. Further, the conduct was deliberate and not inadvertant. Bothofthese are aggravating factors. See C-38 at 7-5 (notingthat conduct that is not inadvertent, orthat is deliberate, is an aggravating factor), 7-6 (noting that a more or less severe iteration ofa particular offense is a mitigating or aggravating factor). Accordingly, the penalty imposedis not at the midpoint ofthefull Minimum to Maximumrange (which wouldbe $5775), but is at the midpoint ofthe Moderate to Maximum range of$6600. This penalty is appropriate for aviolation ofthis nature. CONCLUSION The evidence at hearing demonstrated that (1) Respondent had improperly performed a major alteration on civil aircraft N390TH in February 2011 byfabricating fuel tanks bywelding; (2) this rendered the aircraft unairworthy; (3) Respondent repeatedly operated the aircraft in an
7 Eventhis wouldbe generous, as it is difficult to describe Respondent's conductas "inadvertent." 43unairworthy condition; ( 4) Respondent improperly repaired a fuel leak in one of the newlyfabricated tanks; (5) no approval for return to service was executed for this repair before the aircraft was operated; and (6) the improper repair provided further reasons why the aircraft was unairworthy. The FAA presented evidence demonstrating each violation alleged in the Amended Complaint. Respondent, on the otherhand, presented no evidence at all on many ofthe issues in this case. Judgment shouldbe granted to the FAA on all allegations and for the full civil penalty proposed.
WHEREFORE, Complainantrespectfullyrequests thatthe Judge grantjudgmentto the FAA, and affirmthe Amended Complaint in its entirety, includingthe sanctionimposed. 

# f'\ Respectfully submittedthis?_ { dayofJune, 2014. 

# &PH!* R.

# ST

# ~ENSON Attorney Office ofthe Regional Counsel

44CERTIFICATE OF SERVICE Iherebycertifythatthe foregoing FAA'sClosingArgumentwas sent: Original and one copyviacertifiedmailto: FederalAviationAdministration 800 IndependenceAvenue, S.W. Washington, D.C. 20591 Attention: HearingDocketClerk, AGC-430 Wilbur WrightBuilding- Suite 2W1000 One copyvia certifiedmailto: The HonorableJ.E. Sullivan Administrative LawJudge Office ofHearings, M-20 U.S. Department ofTransportation 1200NewJerseyAvenue, SE (E11-310) Washington, DC 20590 facsimile: (202) 366-7536 StuartA. Goldstein, P.A. 7300 NorthKendall Drive, Suite 380 Miami, FL 33156 Facsimile: (305) 400-0685

# ~J:w~GS ProgramAnalyst Office ofthe Regional Counsel 

## JUN 3

## 0 20tlfi. Dated

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