Dan Hill - Mach One Air Charters - Chino CA

Unsafe operation of a private jet by Dan Hill and Mach One Air Charters(MOACI).


1011 2 0 P 2: In The Matter Of: Docket No. FAA-2015-0643 Mach One Air Charters, Inc. Case No. 2014WP210018 Respondent INITIAL DECISION 1. Pertinent Procedural History On November 4, 2014, the Complainant served the Respondent a Notice of Proposed Civil Penalty in the amount of $40,000. On April 2, 2015, the Complainant served the Respondent a Final Notice of Proposed Civil Penalty for the same amount. On April 21, 2015, the Respondent filed a Request for Hearing. On April 28, 2015, the Complainant timely filed its complaint, to which the Respondent filed a timely answer on May 11, 2015. The Complainant subsequently amended its complaint on June 15, 2015; the Respondent amended its answer on October 4, 2016. On May 28, 2015, Chief Administrative Law Judge Yoder assigned this case to an Administrative Law Judge and then subsequently reassigned it to the undersigned judge on March 21, 2016. On December 2, 2016, the undersigned judge provided notice that a hearing would be held in Riverside, CA, beginning on March 21, 2017. Pursuant to an Order Finalizing Litigation Schedule, the parties submitted witness and evidence lists to the undersigned judge on February 17, 2017. Based upon the submissions, on February 24, 2017, the Complainant filed objections to the admission of five photographs and f i ve videos proffered by the Respondent. The objections were overruled during a prehearing conference on March 6, 2017. The undersigned judge conducted a hearing from March 21 to 23, 2017, in Riverside, CA. Lisa Toscano appeared on behalf of the Complainant; Steven Graff appeared on behalf of the Respondent. The parties submitted written posthearing briefs pursuant to 14 C.F.R. § 13.231(c) on May
17, 2017. Based upon the evidence presented at the hearing and the applicable law, the undersigned judge has come to the following decision. 2. Summary of Complainant's Allegations The Complainant alleges that on May 10, 2014, the Respondent discovered that the outside air temperature ("OAT") gauge was unreliable and noticed that the circuit breaker for the left engine air intake anti-ice system popped on civil aircraft N881A. Despite obtaining maintenance for the aircraft, the Respondent allegedly failed to repair the equipment, in violation of 14 C.F.R. §§ 91.405(a) and 135.413(a). The Complainant further alleges the OAT gauge was inoperable and the circuit breaker could not be reset, resulting in the aircraft being unairworthy. On May 12, 2014, the Respondent allegedly operated civil aircraft N881A on a flight from St. Paul, MN, to Chicago Executive Airport in Wheeling, IL, and then, on May 13, 2014, the Respondent flew the same aircraft from Wheeling, IL, to Houston, TX. Before these flights, the Respondent allegedly failed to repair either of the mechanical problems or obtain approval to return the aircraft to service, thereby violating 14 C.F.R. §§ 91.7(a), 91.407(a), 135.25(a)(2), and 135.179 (a). Finally, the complaint alleges the operation of the aircraft in this linairworthy condition was careless or reckless so as to endanger the life or property of another, in violation of 14 C.F.R. § 91.13(a). For these alleged violations, the Complainant seeks a civil penalty of $40,000. 3. Standard of Proof The pertinent regulations at 14 C.F.R. § 13.224(a) and (c) place the burden of proof on the agency, except in the case of an affirmative defense, at which time the burden shifts to the party asserting the affirmative defense. In accordance with 14 C.F.R. § 13.223, the burden of proof in a civil penalty action is a "preponderance of reliable, probative, and substantial evidence." Because circumstantial evidence can be reliable, probative, and substantial,1 a party may use circumstantial evidence to sustain its burden of proof.2 1 See In re America West Airlines, FAA Order No. 96-3 at 31 (Decision and Order, Feb. 13, 1996) (referring to certain circumstantial evidence as "strong"). See In re Continental Airlines, Inc., FAA Order No. 90-12 at 20 (Decision and Order, Apr. 25, 1990). See also In re Florida Propeller & Accessories, Inc., FAA Order No. 97-32 at 7 (Decision and Order, Oct. 8, 1997) (noting that Docket No. FAA- 2015-0643 Initial Decision, page 2
4. Factual findings After considering all the testimony and evidence submitted by the parties, the undersigned judge has come to the following factual findings. The Respondent, a Part 135 operator, is, and was at all times relevant to this case, the holder of Air Carrier Certificate No. DRFA176M.3 During the relevant time period, the Respondent was the owner operator of civil aircraft N881A, a Cessna Model 500-S550.4 On May 10, 2014, the Respondent's employees, Leigh Crumpton and David Uttz flew the subject aircraft on passenger-carrying flights, ultimately landing in St. Paul, Minnesota.5 During the flight, Mr. Crumpton noticed that the temperature reading on the OAT gauge seemed to differ by two to four degrees from the temperature provided by the plane's flight management system ("FMS").6 Further, Mr. Crumpton noticed that the left engine air intake anti-ice system circuit breaker popped upon landing in St. Paul.? The subject aircraft has a "failsafe" system, which ensures the left engine bleed air valve stays open if the circuit breaker pops, causing hot air to go in "the inlet and stater valve at all times."8 While the aircraft would continue to have anti-ice capabilities, the engine performance could decrease due to the continuously open air valve.9 This could, in turn, pose a hypothetical safety hazard on a missed approach, because the engine may not have the power necessary to execute a go-around or for the desired climb rate.10 Due to its impact on an aircraft's power, the anti-ice system generally remains off during takeoff." Upon landing in St. Paul, Mr. Crumpton left the keys to the aircraft with a customer service representative at Signature TECHNICAir ("Signature"), and contacted Dan Hill, the Respondent's Chief Pilot and CEO, to request that someone look at the popped circuit breaker as the use of circumstantial evidence in cases involving allegations of improper repair is not unusual, given the time it takes to discover such violations). 3 See Complaint at 1 and Answer at 1. See Complaint at 2 and Answer at 1. See Complaint at 2 and Answer at 1. See also Ex. J-11 at 24; Transcript Volume 1 at 47-48; and Ex. C-1 at 5. See Ex. J-11 at 24-25 and 31; Transcript Volume 2 at 15, 18, and 30-31; and Transcript Volume 3 at 50. 7 See Ex. J-11 at 29-31 and 67; Transcript Volume 1 at 285; Transcript Volume 2 at 12-13; and Transcript Volume 3 at 50. 8 See Transcript Volume 2 at 139 and 143. See Transcript Volume 2 at 139 and 143-144. io See Transcript Volume 2 at 279-281 and 291. 11 See Transcript Volume 2 at 294. Docket No. FAA- 2015-0643 Initial Decision, page 3 well as the OAT gauge.12 Mr. Hill agreed to have someone look at the issues.13 Mr. Crumpton did not otherwise document his concerns on the pages within the plane's logbook.14 Although the Respondent's general operations manual requires pilots in command to record all discrepancies in the discrepancy log, Mr. Crumpton's decision to contact Mr. Hill was consistent with Mr. Hill's directive to call him directly when any problems arise with an aircraft before logging the purported discrepancy.15 On Sunday, May 11, 2014, the Respondent contacted Signature to request a mechanic look at these issues.16 The on-call maintenance person that weekend, Thomas Thunstrom, Signature's chief inspector, was contacted by a customer service representative regarding a service inquiry for the subject aircraft." After contacting Mr. Thunstrom, a Signature customer service representative then relayed to the Respondent that the weekend callout rate required a minimum charge for four hours of work at time-and-a-half.18 The Respondent decided to instead wait until Monday to have the aircraft serviced.' That same day, another of the Respondent's employees, Jennifer Johnson, arrived in St. Paul to take over as first officer for David Uttz.20 Mr. Crumpton took Ms. Johnson to the aircraft to familiarize her with its operation because she had never flown it before.21 While inspecting the aircraft, Mr. Crumpton told Ms. Johnson that the left engine air intake anti-ice system circuit breaker had popped and that mechanics were going to look at the OAT gauge because he questioned its accuracy.22 That same day, Ms. Johnson overheard a telephone conversation between Mr. Hill and Mr. Crumpton regarding the popped circuit breaker, during which Mr. Hill stated "it was irrelevant, that there was nothing wrong with the anti-ice system, and that it was 12 See Ex. J-11 at 31 and 44-45 and Transcript Volume 2 at 14-16 and 45. In contrast, Mr. Hill testified that Mr. Crumpton called him Sunday, May 11, 2014, regarding the accuracy of the OAT gauge, and asked to have it looked at since the plane would be down for a day or two (Transcript Volume 3 at 50 and 137). Regardless of the exact day, both witnesses agreed about the content of the phone call. 13 See Transcript Volume 2 at 16 (Judge Rawald: "And so what did Mr. Hill direct you to do in that conversation?" Mr. Crumpton: "His comment to me is, 'I'm on it.'" Judge Rawald: "What did you think that meant when he said `I'm on it?'" Mr. Crumpton: "That meant he's going to take care of the situation and have it looked at ..."). 14 See Ex. J-11 at 31. 15 See Ex. J-11 at 31; Transcript Volume 1 at 36-37, 52-53, 289, and 341; and Transcript Volume 3 at 50-51. 16 See Ex. J-1 at 11 and Ex. J-8 at 12-14. "See Ex. J-8 at 13Transcript Volume 1 at 226. IR See Ex. J-1 at 11; Ex. J-8 at 13-14; Transcript Volume 1 at 78-81 and 226; and Transcript Volume 2 at 47. 19 See Ex. J-1 at 11; Ex. J-8 at 12-14; and Transcript Volume 1 at 226. "See Ex. C-1 at 6. 21 See Ex. R-17 and Transcript Volume 1 at 282. 22 See Ex. R-17; Transcript Volume 1 at 284-285; and Transcript Volume 2 at 18-19. Docket No. FAA- 2015-0643 Initial Decision, page 4 some electrical problem in the circuit board of the circuit breaker."23 Upon arriving to work on May 12, 2014, at around 4:30am, Mr. Thunstrom received a note from a line technician regarding the aircraft's OAT indicator.24 Mr. Thunstrom boarded the aircraft to check the logbook for any write-up related to the reported issue.25 Although the logbook's discrepancy section was blank, Mr. Thunstrom noticed a yellow piece of paper in the f l ight log that indicated there were three concerns with the aircraft: (1) the weather radar was not working, (2) the left engine air intake anti-ice circuit breaker had popped and would not reset, and (3) the OAT gauge was unreliable.26 At this time, Mr. Thunstrom left the subject aircraft without performing any maintenance because Signature did not have an active write-up or authorization to bill the customer for work performed.27 Later that morning, Mr. Hill called Jeffrey Buzzell, Signature's director of maintenance, and requested that Signature inspect the aircraft's OAT gauge and the anti-ice system, if they had time?' Mr. Buzzell informed Mr. Hill that it might take "a while" to troubleshoot the engine anti-ice system and that they might need a replacement part that would not be available "until the next day."29 Mr. Hill then requested that Signature only inspect the OAT system and not worry about the anti-ice system.3° Specifically, Mr. Hill asked Signature to test if installing a new probe would resolve the issue and provided Mr. Buzzell with verbal authorization for this work 23 See Transcript Volume 1 at 285-286. 24 See Ex. J-8 at 14-17 and Transcript Volume 1 at 227. 23 See Ex. J-8 at 17-18. 26 The most contemporaneous document, a May 13, 2014 email Mr. Thunstrom sent to Barry Johnson one day after his inspection of the aircraft, contained the following statement: "[w]ent to the aircraft to look at the book and found a scrap piece of paper with three items on it. 1) radar inop 2) L/H engine anti-ice CB popped and won't reset 3) OAT indicator bad. Confirmed the last two items." See Ex. J-9. In his May 23, 2014 statement, written only 11 days after his inspection of the aircraft, Mr. Thunstrom wrote the following about the yellow note he found in the aircraft's logbook's discrepancy section: "I then saw a note that listed three items: -OAT is unreliable, -L/H anti-ice circuit breaker popped and couldn't reset, -radar Mop. I visually confirmed the first two items. The OAT read off scale and the circuit breaker was popped." See Ex. J-10. At his October 29, 2015 deposition, when questioned about the yellow note, Mr. Thunstrom explained that he found the yellow note in the aircraft's flight log, on the "next available page to write a discrepancy up on" that said, "dash OAT in-op, dash right — right or left engine anti- ice breaker popped. I can't remember. It was one. Left or right. I can't remember exactly. And it said dash radar in-op." See Ex. J-8 at 19-20 and 60-61. At the hearing, when describing what occurred when he boarded the aircraft to look for the flight log, Mr. Thunstrom testified as follows: "I found a piece of yellow paper on top of the flight log that had three items on it, handwritten items, I believe they said — one was OAT, either intermittent or Mop, the other one was the engine anti-ice circuit breaker popped, won't reset, and the other one was radar intermittent, I believe." See Transcript Volume 1 at 227-229 and 274-275. " See Ex. J-8 at 21; Ex. J-10; and Transcript Volume 1 at 229. 28 See Ex. J-1 at 11-14; Ex. J-5; Ex. C-12; Transcript Volume 1 at 83-85; and Transcript Volume 3 at 56-58. 29 See Ex. J-5 and Transcript Volume 1 at 89 and 93. 3° See Ex. J-5 and Transcript Volume 1 at 93. Docket No. FAA- 2015-0643 Initial Decision, page 5 over the phone.31 Mr. Hill further told Mr. Buizzell that there was a new probe on the plane they could use.32 Mr. Hill did not mention any concerns about the operation of the weather radar to Mr. Buzze11.33 After the phone call, Mr. Buzzell emailed a company "drop-in form" for billing purposes to Mr. Hill.34 The Respondent completed the form and faxed it back to Signature.35 Mr. Buzzell then instructed Clinton DeMars, Signature's shop supervisor, to replace the subject aircraft's OAT probe with the new probe already on the plane.36 Mr. DeMars first tested the existing OAT gauge by ensuring all the switches on the aircraft were "off, safe or normal," and then switched on the main battery power.37 With only the main battery power on, the OAT gauge "pegged to the negative," all the way to the right, as opposed to operating normally.38 Mr. DeMars then turned the battery power off, disconnected the probe, and installed the replacement probe that was in the aircraft's storage compartment.39 After performing the same test by switching on only the main battery power, Mr. DeMars noticed that the OAT gauge continued to peg to the far right of the indicator.40 At this point, Mr. DeMars reinstalled the original probe and notified Mr. Thunstrom and Mr. Buzzell that replacing the probe did not make a difference in the readout on the OAT gauge.41 Mr. Thunstrom boarded the subject aircraft to verify Mr. DeMars's findings.' The aircraft power was on and Mr. Thunstrom observed that the OAT gauge was "pegged."43 By turning on only the main battery switch, the technicians at Signature failed to use the correct method to test the operation of the OAT gauge.44 To properly activate the OAT gauge, the operator must first turn on the battery switch, then the avionics switch, and then the inverter 31 See Ex. J-1 at 13-14 and Transcript Volume 1 at 84-85, 97, and 103. 32 See Ex. J-1 at 13 and Transcript Volume 1 at 84-85. 33 No one employed by the Respondent mentioned any concerns about the operation of the weather radar to any Signature personnel. See Transcript Volume 1 at 257. 34 See Ex. J-5; Ex. J-1 at 15; Transcript Volume 1 at 96-97 and 102; and Transcript Volume 3 at 134 " See Ex. J-5; Ex. J-1 at 16; Transcript Volume 1 at 97 and 103; and Transcript Volume 3 at 154. 36 See Ex. J-5; Ex. J-7; Ex. J-1 at 19; Transcript Volume 1 at 105-106 and 181. 37 See Ex. J-7; Ex. J-6 at 27-28; and Transcript Volume 1 at 107-108, 182, 185, and 199-200. 38 See Ex. J-7; Ex. J-6 at 26-28 and 73; Transcript Volume 1 at 107-108, 182, 185, and 199. 39 See Ex. J-7; Ex. J-6 at 26-28 and 73; Ex. J-1 at 23-25; and Transcript Volume 1 at 106-108, 179-182, 185-186, and 199. 40 See Ex. J-7; Ex. J-6 at 26-28 and 73; Transcript Volume 1 at 107-108, 182, 185, and 199-200. 41 See Ex. J-7; Ex. J-6 at 26-28 and 73; Ex. J-8 at 27-28; Ex. J-1 at 22-25; and Transcript Volume 1 at 106-108, 179- 182, 185-186, and 199. 42 See Ex. J-8 at 27. 43 See Ex. J-8 at 28. " See Transcript Volume 1 at 200. Docket No. FAA- 2015-0643 Initial Decision, page 6 switch.45 When all the aircraft's power is off, the OAT gauge needle is to the far left, in the seven o'clock position.46 Turning on only the main battery power causes the OAT gauge needle to peg to the far right, by moving clockwise to the five o'clock position.47 Once the main battery switch is turned on, the OAT gauge needle will only indicate the outside air temperature after both the inverter and avionics switches are turned on.48 Although Mr. Thunstrom and Mr. DeMars both noticed a popped circuit breaker for the left engine air intake anti-ice system while on the aircraft, neither tried to reset it because Signature did not have authorization to work on that issue.49 After Mr. DeMars completed the work on the aircraft, Mr. Buzzell called Mr. Hill on speaker phone, with Mr. DeMars present.5° Mr. Buzzell told Mr. Hill that replacing the probe did not resolve the problem with the OAT gauge, explaining that there may be a short in the system.' When informed that it could take anywhere from an hour to days to continue troubleshooting the problem with the OAT system, Mr. Hill requested that Signature not perform any further work and ended the cal1.52 Mr. Buzzell then asked Mr. DeMars to coordinate with Mr. Thunstrom to make an unairworthy logbook entry for the aircraft because the OAT gauge failed to operate properly.53 Mr. Buzzell did not, however, tell Mr. Hill during the phone call that Signature intended to find the aircraft unairworthy.54 Mr. Thunstrom completed the logbook entry and left it on Mr. desk.55 Later that morning, Mr. 131177ell emailed completed copies of Signature's logbook entry and work order to Mr. Hi11.56 This email served as the only notification to the Respondent that Signature found the aircraft unairworthy." Neither the subject nor the body of the email 45 See Transcript Volume 3 at 106-107. See Ex. R-7 at 00:08 and Transcript Volume 3 at 103-104. 42 See Ex. R-6 at 00:14; Ex. R-7 at 00:13; and Transcript Volume 3 at 107-108. 48 See Ex. R-6 at 00:26 and R-7 at 00:31. 49 See Ex. J-6 at 76 and 81; Ex. J-8 at 62-63; and Transcript Volume 1 at 117 and 195-197. 50 See Ex. J-1 at 25; Ex. J-6 at 79-80; and Transcript Volume 1 at 108. 51 See Ex. J-1 at 25-26; Ex. J-6 at 79-81; and Transcript Volume 1 at 108-109 and 170. 52 See Ex. J-1 at 25-26. 53 See Ex. J-1 at 28; Ex. J-8 at 30 and 37 and Transcript Volume 1 at 110-111. 54 See Transcript Volume 1 at 124. 55 See Ex. J-8 at 30, 33-34 and 38 and Ex. J-10. 56 See Ex. J-4 at 1; Ex. J-1 at 28; Ex. J-5; and Transcript Volume 1 at 111-112. 57 See Ex. J-1 at 28-30; Transcript Volume 1 at 141-143; and Transcript Volume 3 at 70. Docket No. FAA- 2015-0643 Initial Decision, page 7 indicated the aircraft was deemed unairworthy.58 The title of the only attachment, "IMG.pdf," made no reference to the logbook entry or work order contained within the file.59 Mr. Hill never received this email.6° Signature's standard procedure is to placard a plane they have deemed unairworthy to ensure no one operates it.61 However, no one at Signature ever placarded the subject aircraft or put any written note, or the logbook entry, in or on the aircraft to notify the flight crew that it was deemed unairworthy.62 Although Mr. Thunstrom made copies of the logbook entry, he did not leave a copy in the subject aircraft or give a copy to any member of the flight crew.63 Similarly, Mr. Buzzell admittedly did not provide a copy of the logbook entry to any member of the flight crew, nor did he leave a copy with Signature's front desk or affix a copy to the subject aircraft.' Mr. Crumpton and Ms. Johnson arrived at the airport that aftemoon.65 Upon their arrival, they found the aircraft on the flight line.66 A mechanic from Signature then topped off the aircraft's TKS fluid.67 The Respondent's employees then flew the subject aircraft from St. Paul, Minnesota to Chicago Executive Airport in Wheeling, Illinois on a positioning flight.68 Mr. Crumpton served as the pilot in command for this flight, with Ms. Johnson as the first officer.69 While performing his preflight checklist, Mr. Crumpton noticed that the left engine air intake anti-ice system circuit breaker remained popped." He popped the breaker back in, and informed Ms. Johnson of his actions.71 58 See Ex. J-4 at 1 and Transcript Volume 1 at 125-127. 59 See Ex. J-4 at 1 and Transcript Volume 1 at 126. " See Ex. C-12 and Transcript Volume 3 at 65. " See Ex. J-1 at 31. 62 See Ex. J-8 at 38-39; Ex. J-1 at 29-32; Transcript Volume 1 at 141-143 and 208-209; and Transcript Volume 2 at 56-57 and 61. 63 See Ex. J-8 at 38-39. " See Ex. J-1 at 29-32 and Transcript Volume 1 at 141-143. 65 See Transcript Volume 1 at 306 and Transcript Volume 2 at 56. " See Transcript Volume 1 at 308 and Transcript Volume 2 at 56. ' See J-11 at 44, 71, and 149; Ex. J-6 at 48-49; Ex. J-7; Ex. J-10; Transcript Volume 1 at 186, 193, 254-255, and 307-308; and Transcript Volume 2 at 28 and 57. 68 See Complaint at 3; Answer at 1; and Ex. C-1 at 6. 69 See Ex. C-1 at 6. 70 See Ex. J-11 at 38-39, 45, 47, 74-77, 83-84, and 113. 71 See Ex. J-11 at 38-39, 45, 47, 74-77, 83-84, and 113. The undersigned judge does not find credible Jennifer Johnson's testimony that, while cleaning the plane on Sunday, May 11, she noticed the left engine air intake anti-ice circuit breaker was not popped, and claimed that Mr. Crumpton told her he had reset it. See Transcript Volume 1 at 311. Even if credited, this fact would not alter the decision in this matter. Docket No. FAA- 2015-0643 Initial Decision, page 8 During flight, the crew flew in clear weather conditions.72 Because of this, the crew did not attempt to use the left engine air intake anti-ice system on the flight.73 The circuit breaker did not pop again, either during flight or upon landing.74 Additionally, the subject aircraft's OAT gauge worked without issue on the flight.75 Mr. Crumpton did not notice any variance between the OAT gauge and FMS temperature readings during this flight.76 Upon arriving to work the morning of May 13, 2014, Mr. Thunstrom noticed the subject aircraft had departed.77 Knowing that he had found the aircraft to be unairworthy when he left work the day before, Mr. Thunstrom checked to see if any additional work had been performed on the aircraft.78 When he found no record of any further work, Mr. Thunstrom emailed Signature's principal FAA maintenance inspector, Barry Johnson, to notify him that an unairworthy aircraft had flown from their repair station.79 Mr. Johnson subsequently forwarded this email to Ricardo Hernandez, an FAA aviation safety inspector at the Riverside Flight Standards District Office.' Mr. Hernandez then contacted Albert Cuevas, the Respondent's director of maintenance, and told him about the problem with the subject aircraft.' Mr. Cuevas in turn told the Respondent's director of operations.82 While this chain of notifications was taking place, the Respondent's employees flew a passenger-carrying flight from Chicago Executive to Houston, Texas.83 Mr. Crumpton once again served as the pilot in command on this flight, with Ms. Johnson as the first officer.84 During flight, the crew experienced clear weather conditions.' Because of this, the crew had no need to use the left engine air intake anti-ice system on the flight from Chicago Executive to 72 See Ex. J-11 at 38-39. The weather reports for May 12, 2014, revealed no significant weather between St. Paul and Chicago on that date. See Exs. C-5 and C-6 and Transcript Volume 2 at 262-263. 73 See Ex. J-11 at 88-89; Transcript Volume 1 at 299-300; and Transcript Volume 2 at 41. 74 See Ex. J-11 at 88 and 91-92; Transcript Volume 1 at 299-300; and Transcript Volume 2 at 41. 75 See Ex. J-11 at 86 and Ex. R-17. 76 See Transcript Volume 2 at 40. 77 Relying upon data from the flight tracker, Mr. Thunstrom believed the subject aircraft had left for Denver, when in fact it had departed to Chicago Executive. See Ex. J-8 at 55 and Transcript Volume 1 at 254. 78 See Ex. J-8 at 42-43 and Ex. J-10. 79 See Ex. J-8 at 42-43 and 54; Ex. J-10; and Transcript Volume 1 at 246-247. 89 See Ex. J-9 and Transcript Volume 2 at 147-149 81 See Transcript Volume 3 at 7-11 and 20. 82 See Transcript Volume 3 at 9. 83 See Complaint at 3; Answer at 1; and Ex. C-1 at 7. 84 See Ex. C-1 at 7 85 See Ex. J-11 at 125-128 and Transcript Volume 1 at 291 and 296. The weather reports for May 13, 2014, revealed no significant weather between Chicago and Houston on that date. See Exs. C-5 and C-6 and Transcript Volume 2 at 267-268. Docket No. FAA- 2015-0643 Initial Decision, page 9 Houston, and the circuit breaker did not pop during this flight.86 Additionally, the subject aircraft's OAT gauge operated normally on this flight, and its accuracy was verified when Ms. Johnson, at the request of Mr. Crumpton, requested an OAT reading from a nearby plane.87 Based upon the information from Mr. Cuevas, the DO made the call to ground the aircraft upon its arrival in Houston.88 He notified the flight crew, who prepared a "list of things" to be looked at by mechanics upon landing in Houston.89 Mr. Crumpton and Ms. Johnson were then met by a mechanic from Global Aviation Services, Inc. ("Global") to provide maintenance upon landing in Houston.9° Global's President, Douglas Ray, initially spoke with the Respondent, and took notes that he gave to John Welch, Global's director of maintenance and chief inspector.91 Mr. Welch then created a work order for the subject aircraft.92 Upon arriving to work on May 14, 2014, Mr. Welch received a text message from Mr. Ray indicating Global received approval to work on the subject aircraft.93 Mr. Welch was the first member of Global's maintenance department to board the aircraft.94 Using information Mr. Ray received from the Respondent, Mr. Welch added discrepancies to Global's work order, beginning with "Item No. 3 — Left Bleed Air Breaker Pops."95 After troubleshooting the circuit breaker, Tim Hutchins, a contract mechanic for Global, identified a short in the plug/circuit, which was resolved by replacing the cannon plug on the valve, as well as a diode across the two wires.96 Following his repair, Mr. Hutchins completed the "corrective action" section for "Item No. 3," which Mr. Welch subsequently inspected and signed off on.97 Similar to Signature, Global tested the OAT gauge by only turning on the main battery power.98 An initial inspection of the aircraft's OAT system revealed that the gauge was at zero 86 See Ex. J-11 at 88-89 and 91-92; Transcript Volume 1 at 299-300; and Transcript Volume 2 at 41. " See Ex. R-17; Transcript Volume 1 at 298; and Transcript Volume 2 at 23-24 and 40. 88 See Transcript Volume 3 at 11. " See Transcript Volume 1 at 293-294 and 317. 9° See Transcript Volume 1 at 296-297 and 340-341 and Transcript Volume 2 at 79-80. 91 See Transcript Volume 2 at 83-84 and 98. 92 See Ex. C-2. 93 See Transcript Volume 2 at 101-102. 94 See Transcript Volume 2 at 118-119. 95 See Transcript Volume 2 at 102-104. % While Ex. C-2 at 1 says "resistor," Welch clarified that it was a diode. See Transcript Volume 2 at 104-106 and 129-130. 97 See Transcript Volume 2 at 84-85 and 95 and Ex. C-2 at 1. " See Transcript Volume 2 at 120-121 and 133-134. Docket No. FAA- 2015-0643 Initial Decision, page 10 with no power.99 After turning on the main battery power switch, the gauge "pegged."1°° In performing this initial test, Global did not turn on the inverter or avionics switches.1°1 The Respondent also asked Global to perform an operational check of the weather radar system.1°2 After the weather radar printed a test pattern, Global determined that the system worked and any concern with the weather radar must have been due to user error.1°3 On May 16, 2014, after completing the work, Mr. Welch made an entry on the Respondent's discrepancy log stating "Lt Bleed air C/B popped," as well as the corrective action "replaced plug on engine valve."104 The Respondent specifically asked Global to document the popped circuit breaker.1°5 Global completed its own logbook entry for the subject aircraft.1°6 This logbook entry documented the work Global performed on the aircraft's left engine air intake anti-ice system, OAT system, and radar system.'" 5. Significant Credibility Determinations In finding the above facts, the undersigned judge made the following significant credibility determinations. a. Mr. Thunstrom's testimony regarding the yellow note in the logbook and its contents was credible. Mr. Thunstrom was the only witness to provide testimony regarding the existence of the yellow note he found in the aircraft's logbook. Mr. Thunstrom is a neutral third-party; his impartiality increase the credibility of his testimony regarding the yellow note he found in the aircraft's logbook. Mr. Thunstrom's testimony on this topic remained consistent over time. Importantly, in both his May 13, 2014 email to Mr. Johnson and his May 23, 2014 statement, Mr. Thunstrom documented the fact that the yellow note stated the circuit breaker would or could not rest. The contemporaneous nature of these written statements increases their reliability, and in turn increases the credibility of Mr. Thunstrom's testimony. " See Transcript Volume 2 at 120. 1" See Transcript Volume 2 at 120. 101 See Transcript Volume 2 at 121. 1' See Transcript Volume 2 at 142. 103 See Transcript Volume 2 at 135. See also Ex. C-2 at 5. 1" See Transcript Volume 2 at 113 and Ex. C-2 at 4. 105 See Transcript Volume 2 at 114. 106 See Ex. C-2 at 5. '7 See Transcript Volume 2 at 140-142. Docket No. FAA- 2015-0643 Initial Decision, page 11 The testimony regarding the existence and contents of the yellow note are further supported by Global's inspection results after the aircraft landed in Houston. The three pieces of equipment with problems indicated on the yellow note (the OAT gauge, the left engine air intake anti-ice system circuit breaker, and the weather radar) were among the items Global inspected at the Respondent's request. Significantly, none of the Respondent's employees mentioned a concern with the weather radar to Signature. In fact, Mr. Crumpton did not express any concerns with the weather radar when he called Mr. Hill to discuss the OAT gauge and the left engine air intake anti-ice system. Mr. Crumpton had, however, expressed his concerns regarding the weather radar to Ms. Johnson, and determined it was inoperable after he could not get it to turn on.1" On the flight to Houston, Mr. Crumpton and Ms. Johnson compiled a list of items for mechanics to inspect upon landing, which included the weather radar.1°9 Global then performed an operational check of the radar system per the Respondent's request. 11 ° Mr. Crumpton's discussion with Ms. Johnson regarding the weather radar, combined with the Respondent's request that Global check the weather radar, establishes that there was a concern regarding the aircraft's weather radar on May 10, 2014. The existence of this concern, combined with the fact that Signature was not notified of any issue with the weather radar, creates sufficient circumstantial evidence to support the existence of the yellow note, which also documented the Respondent's concerns with the weather radar. There is no other credible explanation for why Mr. Thunstrom would have indicated there was a concern with the weather radar. b. Ms. Johnson's testimony regarding the Sunday, May 11, 2014 phone call was credible. Ms. Johnson testified that she overheard a May 11, 2014 phone call between Mr. Crumpton and Mr. Hill, during which Mr. Hill stated that there was an electrical problem with the circuit board of the aircraft's left engine air intake anti-ice system's circuit breaker. Of importance, Mr. Hill did not refute the existence or contents of this conversation while on the stand, despite being present throughout the hearing, including during Ms. Johnson's testimony. Further, several facts support the credibility of Ms. Johnson's testimony regarding 1" See Transcript Volume 1 at 313. 109 See Transcript Volume 1 at 293-294, 317, and 332-333. 11° See Ex. C-2 at 5. Docket No. FAA- 2015-0643 Initial Decision, page 12 the existence of an electrical problem with the left engine air intake anti-ice system, including: (1) the yellow note documented a popped circuit breaker that would not reset, (2) the circuit breaker popped upon landing in St. Paul, and (3) subsequent maintenance performed by Global found a short in the left engine air intake anti-ice system's circuit. c. The testimony and assertions by the various maintenance personnel that the aircraft was unairworthy due to the OAT gauge were not credible. Maintenance professionals from both Signature and Global testified that they deemed the subject aircraft unairworthy based upon their assessment that the OAT gauge was inoperable because the OAT gauge pegged to the right when the aircraft's main battery power was turned on. However, the undersigned judge cannot credit this conclusion, because neither Signature nor Global properly tested the OAT gauge." In order to properly test the operation of the OAT gauge, the maintenance person would have had to turn on not only the main battery switch, but also the inverter and avionics switches. Turning on the main battery power alone in the subject aircraft causes the OAT gauge to peg to the right, regardless of its operability. Because of their failure to properly test the operation of the OAT gauge, the testimony of the maintenance professionals from both Signature and Global on this issue lacks credibility. d. Mr. Hill's testimony that he did not receive the second email from Signature was credible. The undersigned judge credits Mr. Hill's testimony that he did not receive the second email from Mr. Buzzell, containing Signature's work order and logbook entry deeming the aircraft unairworthy. The DO, whose testimony was largely unchallenged and was a credible witness, testified that Mr. Hill was just as "shocked" as he was to learn that the aircraft "supposedly had open writeups."112 Further, Signature did not receive any response from Mr. Hill after they sent the email, and so there is no confirmation this email was received. Lastly, the Respondent presented the testimony of Joshua Shing-Yen Chin113 to discuss how Mr. Hill could have received Signature's first email but not the second email, even though they were sent to the same email address. Mr. Chin noted that the attachments in Signature's first email were named by the sender, whereas the attachment in the second email was entitled "IMG.pdf," a generic 111 When questioned, Mr. Buzzell admitted that if Mr. DeMars did not properly perform an inspection of the OAT gauge, Signature wrongly classified the aircraft as unairworthy. See Transcript Volume 1 at 122-123. 12 See Transcript Volume 3 at 16-17. 113 Mr. Chin's resume is Ex. R-16. Docket No. FAA- 2015-0643 Initial Decision, page 13 name that an email provider may flag as suspicious.114 Mr. Chin further explained that suspicious emails are often directed to a user's spam folder, as opposed to the inbox, and that no notification of this action is sent to either the sender or the recipient.115 6. Discussion of Alleged Violations a. The Respondent operated an aircraft that had undergone maintenance without being approved for return to service and entry of the required maintenance record. Pursuant to 14 C.F.R. § 91.407(a): [n]o person may operate any aircraft that has undergone maintenance ... unless — (1) [i]t has been approved for return to service by a person authorized under § 43.7 of this chapter; and (2) [t]he maintenance record entry required by § 43.9 ... has been made. The Respondent authorized Signature to perform maintenance on its aircraft, specifically the replacement of the OAT gauge. When Signature performed this work, the aircraft underwent maintenance.116 Mr. Buzzell notified the Respondent that Signature performed this work in a subsequent phone call. After the maintenance was complete, the aircraft could not be operated until it had been approved for return to service and the required maintenance record entry had been made. According to 14 C.F.R. § 43.5: [n]o person may approve for return to service any aircraft ... that has undergone maintenance ... unless — (a) the maintenance record required by § 43.9 ... has been made; [and] (b) the repair or alteration form authorized by or furnished by the Administrator has been executed in a manner prescribed by the Administrator ... Signature completed both a work order and logbook insert documenting their May 12, 2014 maintenance on the aircraft. Both these documents indicated that the aircraft was not approved for return to service. Signature's work order classified all inspections performed as unsatisfactory, and crossed out the language stating that the aircraft was "approved for return to service."117 Furthermore, Signature's logbook insert stated that the aircraft was "determined to be UNAIRWORTHY for return to service."118 Unfortunately, neither of these documents were received by the Respondent, so the 114 See Transcript Volume 2 at 321. "5 See Transcript Volume 2 at 321-323. 116 "Maintenance means inspection, ... and the replacement of parts, but excludes preventative maintenance." See 14 C.F.R. § 1.1. See also In re Royal Avionics Systems, Inc., FAA Order No. 2002-6 (Decision and Order, Apr. 16, 2002) (finding the removal and replacement of the weather radar receiver/transmitter and the horizontal situation indicator constituted maintenance because these actions involved the replacement of aircraft parts). 117 See Ex. J-4 at 2. 118 See Ex. J-4 at 3. Docket No. FAA- 2015-0643 Initial Decision, page 14 Respondent was unaware that the aircraft had been deemed unairworthy. That is not dispositive of this violation, however. The Respondent, as previously explained, could not fly the aircraft after maintenance until it received paperwork stating the aircraft was approved to fly. Without such paperwork, any subsequent operation of the aircraft was in violation of 14 C.F.R. § 91.407(a). Accordingly, the undersigned judge finds by a preponderance of the reliable, probative, and substantial evidence that the Respondent operated the aircraft on May 12 and 13, 2014, after it had undergone maintenance, but prior to it being approved for return to service and before the required maintenance record entry had been made, violating 14 C.F.R. § 91.407(a). b. Mr. Crumpton's concern with the OAT gauge did not qualify as a discrepancy or defect. An aircraft's owner or operator must have all discrepancies or defects repaired.119 While the regulations do not define the terms discrepancy or defect, the dictionary defines discrepancy as "an instance of difference or inconsistency"1" and a defect as "a shortcoming, fault, or imperfection."121 The regulatory history of these terms supports using them interchangeably in this decision.122 Upon landing in St. Paul, Mr. Crumpton called Mr. Hill to report his concern regarding the accuracy of the OAT gauge, believing there was a two to four degree difference between the temperature outputs from the OAT gauge and the FMS. Interestingly, Mr. Crumpton never explained, nor was he asked to explain, why he questioned the accuracy of the OAT gauge, as opposed to the FMS. The Complainant never established that the OAT gauge was responsible for the variance, as alleged in its complaint. Even if the Complainant had established that the OAT gauge was inaccurate within two to four degrees, it failed to prove that this variance was significant enough to qualify as a defect or 119 See 14 C.F.R. §§ 91.405(a) and 135.413(a). '20 122 In 1981, 14 C.F.R. § 91.165, covering required maintenance, stated in pertinent part: "[e]ach owner or operator of an aircraft shall ... have defects repaired as prescribed in Part 43 ..." Following an editorial amendment, documented in 47 Fed. Reg. 41076, 41083 (Sep. 16, 1982), 14 C.F.R. § 91.165 read in pertinent part: "[e]ach owner or operator of an aircraft shall ... have discrepancies repaired as prescribed in Part 43 ..." 14 C.F.R. § 91.165 continued to use the term discrepancies throughout 1988, and in 1989 when section 91.405 replaced section 91.165, 91.405 (a) continued to use the term discrepancies, and stated in pertinent part: "[e]ach owner or operator of an aircraft — (a) shall ... have discrepancies repaired as prescribed in Part 43 ..." See 14 C.F.R. § 91.405 (1989) and 54 Fed. Reg. 34284, 34289 (Aug. 18, 1989). Docket No. FAA- 2015-0643 Initial Decision, page 15 discrepancy. The Complainant's expert witness, Michael Baudoux,123 did not know the aircraft's acceptable tolerance for the OAT gauge, nor could he state with certainty that the reported variance made the aircraft unairworthy.124 In bearing the burden of proof, the Complainant could have provided the acceptable tolerance, which the Complainant's expert stated would be found in the aircraft's maintenance manual.125 The Respondent presented its own expert, Charles Hicks, Jr.,126 who stated that a two to three degree variance in the output of the OAT gauge is not a discrepancy. Mr. Hicks explained that the output of an OAT gauge is affected by several conditions, including an "airplane skidding" or an increase in "temperature due to friction."127 Further, in emphasizing the minimal and inconclusive nature of a variance of a few degrees, Mr. Hicks noted that "2 to 3 degrees could be 5,128 a needle width. Two to three degrees could be — it could be anything. In conclusion, Mr. Hicks stated: "[t]here are too many variables. I mean, if we are talking a 2 or 3 degree variance, no, I wouldn't say that was a discrepancy."129 The undersigned judge must also consider the source of this reported variance. In addition to being described as an excessive worrier with a tendency to report minor issues,130 Mr. Crumpton was not able to operate the aircraft's weather radar correctly.131 If Mr. Crumpton was not able to operate the weather radar correctly, the question arises as to whether or not he is a reliable source as to the accuracy of the OAT gauge output. No other independent evidence was offered to demonstrate there was in fact a difference between the reading on the OAT gauge and the temperature provided by the FMS. Further, both Mr. Crumpton and Ms. Johnson credibly testified that the OAT gauge worked properly during the flights in question, with no noticeable variance between the temperature readings provided by the OAT gauge and the FMS. In fact, the OAT gauge's accuracy was 123 Mr. Baudoux's resume is Ex. C-3. 124 The Respondent's counsel asked Mr. Baudoux: "[n]ow, you're saying 3 to 4 degrees on a reading at least per the pilot makes that system or the indicator unairworthy ?," to which Mr. Baudoux replied: "What alone, no. I don't know what the tolerance is for that instrument. I'd have to look it up." See Transcript Volume 2 at 206. '5 See Transcript Volume 2 at 208. 126 Mr. Hick's resume is Ex. R-13. 127 See Transcript Volume 2 at 343. 128 See Transcript Volume 2 at 365. 129 See Transcript Volume 2 at 343. 13° See Transcript Volume 3 at 48-49. 131 In addition to Ms. Johnson's testimony regarding Mr. Crumpton's inability to use the weather radar, Mr. Crumpton admitted that his concerns regarding the weather radar was a result of "operator error." See Transcript Volume 1 at 313 and 317 and Transcript Volume 2 at 77. Docket No. FAA- 2015-0643 Initial Decision, page 16 verified during the flight to Houston, when Ms. Johnson requested an OAT reading from a nearby plane. As previously explained, it is not possible to rely upon the work of either Signature or Global to assess the working of the OAT gauge because they failed to use the correct method to test the operation of the OAT gauge. Further, Mr. Welch's testimony regarding the supposed repairs to the OAT gauge differed from the contemporaneous report from Global. While Global's work order referenced bent "pins" in the OAT gauge,132 Mr. Welch testified that Global's inspection revealed only a single bent pin.133 Mr. Welch went on to explain that straightening the bent pin corrected the problem with the OAT gauge, which Global tested by simply turning on the main battery power.134 As has been established, turning on the main battery power alone would not activate the OAT gauge, so Mr. Welch's description of this repair lacks credibility. Accordingly, the undersigned judge finds that the Complainant failed to prove by a preponderance of the reliable, probative, and substantial evidence that Mr. Crumpton's concern with the OAT gauge qualified as a defect or discrepancy. c. The left engine air intake anti-ice system was defective and qualified as a discrepancy. Mr. Baudoux explained that a popped circuit breaker should always be reported on an aircraft's discrepancy sheet.135 Both Mr. Baudoux and Mr. Hicks agreed that if an aircraft's guidance permits, a pilot can reset a popped circuit breaker. 136 While Mr. Hicks opined that a circuit breaker popping a single time does not constitute a discrepancy, he admitted that a circuit breaker popping more than once does indicate a problem.137 Although the left engine air intake anti-ice system circuit breaker popped upon landing in St. Paul, the Respondent did not authorize Signature to perform any work on the system.138 132 See Ex. C-2 at 3. 133 See Transcript Volume 2 at 122-124 and 143. 134 See Transcript Volume 2 at 132-134. "5 See Transcript Volume 2 at 251. 136 See Transcript Volume 2 at 252 and 361. 137 See Transcript Volume 2 at 341. While discussing a pilot's ability to reset a circuit breaker during his preflight check list, Mr. Hicks stated that "[i]f" it popped out again at that point then they would know that they had a problem." See Transcript Volume 2 at 361. Mr. Hicks later confirmed his testimony stating that if the same circuit breaker pops more than once, he would conclude "there's a problem with it." See Transcript Volume 2 at 367-368. 138 The Complainant can "sustain its burden of proving that required maintenance has not been accomplished based upon the absence of entries reflecting the performance of that maintenance in the aircraft's maintenance records." Docket No. FAA- 2015-0643 Initial Decision, page 17 However, while reviewing the aircraft's logbook, Mr. Thunstrom discovered a yellow piece of paper that stated the left engine air intake anti-ice circuit breaker had popped and would not reset, indicating that this was an ongoing issue. Ms. Johnson corroborated this assessment when describing the phone call between Mr. Crumpton and Mr. Hill, in which Mr. Hill told Mr. Crumpton that there was an electrical problem in the circuit board. Consistent with this, Global's inspection revealed a short in the left engine air intake anti-ice system's circuit, which required replacement of a diode across the two wires, as well as replacement of the valve's cannon plug. The Administrator has held that the question under 14 C.F.R. § 91.405(a) is not whether the aircraft needed immediate maintenance, but whether it needed maintenance prior to the next operation.139 A preponderance of the reliable, probative and substantial evidence supports a finding that the aircraft's left engine air intake anti-ice system circuit breaker had popped more than once, rendering it defective and qualifying it as a discrepancy that required maintenance prior to its next operation. In other words, the Respondent was required to have the left engine air intake anti-ice system repaired before operating the aircraft on May 12 and 13, 2014. Instead, the Respondent chose not to authorize Signature to work on the left engine air intake anti-ice system; this failure to repair a defect/discrepancy constitutes a violation of 14 C.F.R. §§ 91.405(a) and 135.413(a). d. None of the equipment on the plane was inoperable. The Complainant failed to meet its burden of proof to establish that the aircraft's OAT gauge was inoperable. Both Mr. Crumpton and Ms. Johnson, the only individuals with firsthand knowledge of the OAT gauge's functional abilities during the flights in question, testified that the OAT gauge operated normally on the flights to Chicago and Houston on May 12 and 13, 2014. Additionally, a call to a nearby plane during the flight to Houston confirmed the accuracy of the aircraft's OAT gauge. Further, the Complainant failed to prove the left engine air intake anti-ice system was inoperable. The left engine air intake anti-ice system has a "failsafe" aspect, in which the left engine bleed air valve stays open if a circuit breaker pops, ensuring the aircraft continues to have anti-ice capabilities even if the circuit breaker pops. Further, there was insufficient evidence the See In re Whitley, FAA Order No. 2009-4 at 17 (Decision and Order, Jan. 14, 2009) (citing In re American Air Network Inc., FAA Order No. 2008-10 at 32 (Decision and Order, Oct. 7, 2008)). 139 See In re California Helitech, FAA Order No. 2000-18 at 9 (Decision and Order Aug. 11, 2000). Docket No. FAA- 2015-0643 Initial Decision, page 18 system did not work as it was not used during the flights in question. e. The aircraft was unairworthy because of the unresolved discrepancy with the left engine air intake anti-ice system. Pursuant to 14 C.F.R. § 91.7(a) "no person may operate a civil aircraft unless it is in an airworthy condition." Similarly, 14 C.F.R. § 135.25(a)(2) states that "no certificate holder may operate an aircraft ... unless that aircraft is in an airworthy condition ..." To be airworthy, an aircraft must: "(1) conform to its design or supplemental type design and to any applicable Airworthiness Directives; and (2) [be] in a condition for safe operation."14° The Administrator has held that an unaddressed discrepancy "renders an aircraft unairworthy.15141 Because the left engine air intake anti-ice system was defective on May 12 and 13, 2014, when the plane was flown to Chicago Executive and Houston, respectively, the aircraft was unairworthy during those flights. The fact that the defective left engine air intake anti-ice system posed an unlikely hypothetical safety hazard on a missed approach does not change the fact that the unresolved defect rendered the aircraft unairworthy. The Administrator has determined that "[a]irworthiness is not synonymous with flyability,"142 and has upheld violations of 14 C.F.R. § 91.7 where the chance of a safety issue was unlikely.143 Accordingly, the undersigned judge finds that a preponderance of the reliable, probative, and substantial evidence shows the Respondent operated the aircraft on May 12 and 13, 2014, while it was in an unairworthy condition, therefore violating 14 C.F.R. §§ 91.7(a) and 135.25(a)(2). f. Because the aircraft was unairworthy, its operation was in a careless or reckless manner so as to endanger the life or property of another. Pursuant to 14 C.F.R. § 91.13(a), "no person may operate an aircraft in a careless or reckless manner so as to endanger the life or property of another." The Administrator has found that America West Airlines, FAA Order No. 96-3 at 29 (citing In re Horizon Air Industries, FAA Order No. 95-11 at 12, note 33 (Decision and Order, May 10, 1995); In re Watts Agricultural Aviation, FAA Order No. 91-8 at 17 (Decision and Order, Apr. 11, 1991)). 141 In re Delaware Skyways, LLC, FAA Order No. 2005-6 at 4 (Decision and Order, Mar. 18, 2005) (citing In re General Aviation, Inc., FAA Order No. 98-18 at 13 (Decision and Order, Oct. 9, 1998)). 142 In re USAir, Inc., FAA Order No. 92-48 at 6 (Decision and Order, July 22, 1992) (citing Morton v. Dow, 525 F.2d. 1302, 1307 (10th Cir. 1975)). 143 See In re Husted and Husted Air Charter, Inc., FAA Order No. 2010-9 at 15 (Decision and Order, June 16, 2010) (finding the "focus is on when there is the potential for harm," when evaluating an alleged violation of 14 C.F.R. § 91.7(a)). See also In re Hampton Air Transport Systems, Inc., FAA Order No. 97-11 (Decision and Order, Feb. 20, 1997) (upholding a violation of 14 C.F.R. § 91.7 where the chance of a resulting safety issue was extremely slim). Docket No. FAA- 2015-0643 Initial Decision, page 19 "[a]bsent extraordinary circumstances, careless or reckless operation of an aircraft follows as a residual violation when operation of an unairworthy aircraft is established."144 By proving that the Respondent violated 14 C.F.R. § 91.7(a), the Complainant established that the Respondent committed a residual violation of 91.13(a). The argument that extraordinary circumstances existed would be an affirmative defense, where the Respondent would have the burden of proof.145 The Respondent failed to prove the existence of any such extraordinary facts. The undersigned judge therefore finds that by operating an unairworthy aircraft on May 12 and 13, 2014, the Respondent committed residual violations of 14 C.F.R. § 91.13(a). 7. Civil Penalty Amount As previously explained, the undersigned judge has determined that the Respondent violated 14 C.F.R. §§ 91.407(a), 91.405(a), 135.413(a), 91.7(a), 135.25(a)(2), and 91.13(a). The remaining issue is determining the appropriate civil penalty to be assessed against the Respondent for these violations, if any. The Complainant sought a total civil penalty of $40,000 for the alleged violations.146 The burden of justifying the proposed civil penalty falls upon the Complainant.147 In attempting to meet this burden, the Complainant did not, however, provide testimonial evidence about how the proposed civil penalty amount was assessed.148 The Complainant did, however, submit into evidence FAA Order No. 2150.3B, which, in Paragraph 4 of Chapter 7, provides mitigating and aggravating factors to consider when assessing a civil penalty. An appropriate civil penalty must reflect the totality of the circumstances surrounding the violation,149 while providing enough "bite" to serve as a deterrent to both the current violator and 144 USAir, Inc., FAA Order No. 92-48 at 9 (citing Administrator v. Valley, NTSB Order No. EA-3283 at 6 (Opinion and Order, Apr. 2, 1991); Administrator v. Gasper, NTSB Order No. EA-3242 at 3, n. 4 (Opinion and Order, Dec. 21, 1990)). 145 See 14 C.F.R. 13.224(c). 146 See Complaint at 6. 147 See In re Northwest Airlines, Inc., FAA Order No. 1990-37 at 7 (Decision and Order, Nov. 7, 1990) (finding the FAA bore the burden of justifying the amount of the civil penalty it sought). 148 During closing arguments, the Complainant's counsel argued that the following aggravating factors were present in this case: nature of the violation, whether the violation was inadvertent and not deliberate, the certificate holder's level of experience, and the degree of hazard. The Complainant's counsel argued that the Respondent's conduct was careless and reckless, that, despite its experience, the Respondent made a continuous and conscious decision to operate the aircraft, and that it was reasonably foreseeable that operating in poor weather could pose a problem. See Transcript Volume 3 at 260-265. The Complainant's counsel's closing argument, however, does not constitute evidence. 149 See In re Ventura Air Services, Inc., FAA Order No. 2012-12 at 26 (Decision and Order, Nov. 1, 2012); In re Folsom's Air Service, Inc., FAA Order No. 2008-11 at 14 (Decision and Order, Nov. 6, 2008). Docket No. FAA- 2015-0643 Initial Decision, page 20 the industry as a whole in order to promote the goal of safety.15° Paragraph 4 of Chapter 7 of FAA Order No. 2150.3B provides a non-exhaustive list of mitigating or aggravating factors and elements that may be considered: a. nature of the violation; b. whether the violation was inadvertent or not deliberate; c. certificate holder's level of experience; d. attitude of the violator; e. degree of hazard; f. action taken by employer or other authority; g. use of a certificate; h. violation history; i. decisional law; j. ability to absorb sanction; k. consistency of sanction; 1. whether the violation was reported voluntarily; and m. corrective action."' While the undersigned judge is not expressly required to follow the provisions of FAA Order No. 2150.3B,152 it does provide guidance.153 Further, the Administrator has stated that "similar criteria should be considered in assessing civil penalties in non-hazardous materials types of cases"154 to the following statutorily required factors in considering a civil penalty involving hazardous materials violations: (1) the nature, circumstances, extent, and gravity of the violation; (2) with respect to the violator, the degree of culpability, any history of prior violations, the ability to pay, and any effect on the ability to continue to do business; and (3) other matters as justice may require.'55 The undersigned judge considered all the pertinent factors to assess a civil penalty that will deter future violations by the Respondent and the industry as a whole. In considering the relevant factors, it is important to note that the Respondent did not raise an affirmative defense of financial hardship regarding its ability to absorb a sanction. a. A maximum range civil penalty is appropriate for the improper return to service. As previously explained, the Respondent operated an aircraft that had undergone maintenance without being approved for return to service and entry of the required maintenance record, in violation of 14 C.F.R. § 91.407(a). The sanction guidance tables in Appendix B of FAA Order No.3B recommend a civil penalty in the maximum range where, as in the case at hand, a party improperly returns an aircraft to service.156 1" In re Toyota Motor Sales, USA, Inc., FAA Order No. 1994-28 at 11 (Order and Decision, Sept. 30, 1994); In re Charter Airlines, Inc., FAA Order No. 1995-8 at 28 (Decision and Order, May 9, 1995). 151 See Ex. C-11 at 3-8. 152 See Folsom's Air Service, Inc., FAA Order No. 2008-11 at 14 (finding that because administrative law judges are not agency personnel, they are not expressly required to follow the guidance provided in FAA Order No. 2150.3A). 153 In re Air Carrier, FAA Order No. 1996-19 at 7 (Decision and Order, June 4, 1996) (citing Northwest Airlines, Inc., FAA Order No. 1990-37 at 8). 154 In re Luxemburg, FAA Order No. 1994-18 at 6 (Order and Decision, June 22, 1994) (citing Northwest Airlines, Inc., FAA Order No. 1990-37 at 12 n. 9). 155 49 U.S.C. § 46301(e). See also 14 C.F.R. § 13.16(c). 1' See Ex. C-11 at 28 (Fig. B-1-o(1)). The civil penalty ranges contained in Appendix B of FAA Order No. 2150.3B contain three different proposed ranges for minimum, moderate or maximum violations. The sanction Docket No. FAA- 2015-0643 Initial Decision, page 21 In deciding where in the range this case falls, there is mitigation to consider. Specifically, Signature's actions made it appear the aircraft was approved for return to service. Signature did not placard the plane, place a copy of their logbook entry in the aircraft, or notify any of the f l ight crew of the results of their inspection. Additionally, Signature topped off the aircraft's TKS fluid and moved the aircraft out of the maintenance hangar and onto the flight line. Further, once the Respondent learned that Signature had deemed the aircraft unairworthy, it made the immediate decision to ground the aircraft in Houston for maintenance to resolve any concerns. In light of all the circumstances, a civil penalty in the amount of $7,300, which is towards the lower end of the maximum range, is appropriate for the Respondent's 14 C.F.R. § 91.407(a) violation. b. A moderate range civil penalty is appropriate for failing to repair the left engine air intake anti-ice system. The Respondent committed a single violation of 14 C.F.R. §§ 91.405(a) and 135.413(a) when it failed to repair the aircraft's defective/discrepant left engine air intake anti-ice system. The sanction guidance tables in Appendix B of FAA Order No.3B recommend a civil penalty in the moderate to maximum range where, as in the case at hand, a party fails to perform necessary maintenance.157 As previously explained, the aircraft contained a failsafe aspect that ensured continued anti-ice capabilities even if the left engine air intake anti-ice system circuit breaker popped during flight. Given the minimal safety risk imposed by the Respondent's failure to repair the left engine air intake anti-ice system, the undersigned judge finds a civil penalty in the moderate range appropriate. 158 There are, however, some aggravating factors that support a civil penalty towards the higher end of the moderate range. While the left engine air intake anti-ice system would continue to run in the event the circuit breaker popped in flight, the engine power would decrease, albeit minimally. Though unlikely, the decreased engine power could present a hypothetical safety hazard on a missed approach, as the engine may not have the power necessary to execute a go- around or for the desired climb rate. Further aggravation stems from the fact that the Respondent had knowledge of a pre-existing issue with the left engine air intake anti-ice system and yet range dealing with Group III carriers and operators, such as the Respondent, for violations covered under 49 U.S.C. § 46301(a)(5)(A) details a civil penalty range of $7,150-$11,000 for maximum violations. See id at 17. 157 See Ex. C-11 at 26 (Fig. B-1-h(2)). 158 The sanction range dealing with Group III carriers and operators details a civil penalty range of $3,300-$7,149 for moderate violations. See Ex. C-11 at 17. Docket No. FAA- 2015-0643 Initial Decision, page 22 continued to operate the aircraft. As previously explained, Ms. Johnson overheard a telephone conversation between Mr. Hill and Mr. Crumpton regarding the popped circuit breaker, during which Mr. Hill acknowledged there was an electrical problem in the circuit board of the circuit breaker. In light of these circumstances, a civil penalty in the amount of $6,800, which is towards the higher end of the moderate range, is appropriate for the Respondent's violation of 14 C.F.R. §§ 91.405(a) and 135.413(a). c. A minimum range civil penalty is appropriate for operating an unairworthy aircraft. The Respondent violated 14 C.F.R. §§ 91.7(a) and 135.25(a), resulting in residual violations of 14 C.F.R. § 91.13, when it operated an unairworthy aircraft. The sanction guidance tables in Appendix B of FAA Order No.3B recommend a civil penalty in the minimum range where, as in the case at hand, a party operates an aircraft that is unairworthy due to a technical non- conformity to its type certificate that will likely have no effect on safe operation.159 While the applicable case law requires a finding that the aircraft was unairworthy due to the unresolved discrepancy with the left engine air intake anti-ice system's circuit breaker, this concern only created a technical nonconformity because the failsafe aspect ensured the anti-ice system continued to operate if the circuit breaker popped. Further, the aircraft was only operated in clear weather that did not require use of the left engine air intake anti-ice system. Lastly, relying upon the aircraft's master minimum equipment list, Mr. Baudoux explained that the subject aircraft could be operated with only the right engine anti-ice system operable.169 Accordingly, there was no likely effect on safe operation. The Complainant's argument that the Respondent's conduct was careless or reckless enough to warrant an aggravating factor is not convincing. FAA Order No. 2150.3B states: "[w]hen a 14 C.F.R. § 91.13 violation is residual only, a higher sanction generally is not warranted unless the conduct is also reckless."161 For the same reasons this violation is classified as a technical non-conformity with no likely effect on safety, the undersigned judge finds the Respondent's behavior was not reckless, and did not increase the degree of hazard, as argued by the '59 See Ex. C-11 at 27 (Fig. B-1-1(1)). The sanction range dealing with Group III carriers and operators details a civil penalty range of $825-$3,299 for minimum violations. See id. at 17. 160 See Ex. C-8 at 43 and Transcript Volume 2 at 185-188. 161 See Ex. C-11 at 4. Docket No. FAA- 2015-0643 Initial Decision, page 23 Complainant. Accordingly, a civil penalty of $2,050, near the middle of the minimum range,162 is warranted for each unairworthiness violation, resulting in a total civil penalty of $4,100 for the Respondent's operation of an unairworthy aircraft. Therefore, pursuant to 14 C.F.R. § 13.205(a)(9), IT IS HEREBY FOUND:163 1. The Respondent operated an aircraft that had undergone maintenance without being approved for return to service and entry of the required maintenance record, in violation of 14 C.F.R. § 91.407(a). 2. The Respondent failed to repair the aircraft's defective/discrepant left engine air intake anti-ice system, in violation of 14 C.F.R. §§ 91.405(a) and 135.413(a). 3. The Respondent operated an unairworthy aircraft on May 12 and 13, 2014, in violation of 14 C.F.R. §§ 91.7(a) and 135.25(a)(2), resulting in residual violations of 14 C.F.R. § 91.13(a). 4. The Complainant failed to prove by a preponderance of reliable and probative evidence the remaining violations alleged within the complaint. 162 When discussing the civil penalty ranges, Paragraph 3.c. of Appendix B states: "the middle of each recommended sanction range would be for a single violation without aggravating or mitigating factors." See Ex. C-11 at 15. 163 Pursuant to 14 C.F.R. § 13.233(a), "A party may appeal the initial decision, and any decision not previously appealed pursuant to §13.219, by filing a notice of appeal with the FAA decisionmaker. A party must file the notice of appeal in the FAA Hearing Docket using the appropriate address listed in §13.210(a). A party shall file the notice of appeal not later than 10 days after entry of the oral initial decision on the record or service of the written initial decision on the parties and shall serve a copy of the notice of appeal on each party." Docket No. FAA- 2015-0643 Initial Decision, page 24 AND ORDERED: The Respondent shall pay a civil penalty in the amount of $18,200.164 DOUGLAS M. RAWALD Administrative Law Judge Attachments: 1. Service List 2. Appendix A: Joint Exhibits 3. Appendix B: Complainant's Exhibits 4. Appendix C: Respondent's Exhibits 164 14.C.F.R. § 13.232 (d), governing an order assessing a civil penalty states: "Unless appealed pursuant to §13.233 of this subpart, the initial decision issued by the administrative law judge shall be considered an order assessing civil penalty if the administrative law judge finds that an alleged violation occurred and determines that a civil penalty, in an amount found appropriate by the administrative law judge, is warranted." Docket No. FAA- 2015-0643 Initial Decision, page 25