Associations contest FAA’s revocation of Air Trek AOC

 - May 26, 2009, 8:12 AM

The method that the FAA used to shut down air ambulance operator Air Trek of Punta Gorda, Fla., essentially turned into a de facto revocation of the company’s Part 135 certificate, according to an amicus curiae brief filed by the National Air Transportation Association (NATA) and NBAA on January 7. Evidently, the National Transportation Safety Board agreed. On April 22, the NTSB denied an FAA appeal of a previous NTSB decision in this case and ordered the FAA and Air Trek to “work together in good faith, as expeditiously as practical” to restore Air Trek’s charter operating certificate. The FAA has met with Air Trek to resolve remaining issues and “reconform” the company’s procedures to allow it to start flying again.

Air Trek’s costly trip through the FAA’s legal machine began in May last year, when an FAA team of five inspectors spent five days examining the company’s operation in minute detail. The inspection appears to have been the result of Air Trek employee complaints. The inspection prompted the FAA on May 23 to issue an emergency order of suspension of Air Trek’s air carrier certificate. After Air Trek appealed the order, the FAA on June 10 issued an emergency order of revocation. Air Trek again appealed and, on June 13, answered the FAA’s specific complaints.

Those complaints included allegations that the air-ambulance company’s managers incorrectly directed pilots to record aircraft discrepancies on pieces of paper and then either place them in a vise in the maintenance shop, drop them off with mechanics or note the problems on a white board in the company offices. This was in contravention of Air Trek’s FAA-approved procedures which, according to the FAA, called for logging of discrepancies in the traditional aircraft logbook.

One pilot complained that when he did write a mechanical irregularity in the aircraft discrepancy log, Air Trek co-owner Wayne Carr “was displeased with him,” according to court documents. Other pilots testified that there was no pressure to log discrepancies incorrectly. The pilot who said that Carr was displeased also testified that a Westwind he flew had a recurring fuel leak into the baggage compartment, which went uncorrected for six months. “The fuel leak was to such an extent that if the pilots put their crew bags back there, they would get soaked,” he said.

The fuel leak, according to Carr, “was a minor leak that was exiting the airplane, and tracking outside into the baggage compartment. It was investigated every time it was written up.” The leak turned out to be a crack in a vent pipe that showed up only when the fuel tanks were full. “It wasn’t like a pouring leak,” he said, “it was trace elements of jet fuel.”

The NTSB judge found the method for recording maintenance discrepancies not to be deceptive, Carr said. “He said that it was in concurrence with our general operating manual. It says, ‘the pilot shall enter or have entered into the maintenance discrepancy log...’” According to Carr, the judge found that this wording meant that the pilot could ask the maintenance department to place a discrepancy into the log. “The FAA can only hold the operator to the minimum standard precisely as worded,” Carr explained.

On October 17 last year the judge removed the revocation of Air Trek’s air carrier certificate, but modified the sanction to an indefinite emergency suspension, which was to last until Air Trek resolved these issues with the FAA. The judge also cleared Air Trek of seven of the 10 original charges.

The FAA appealed that ruling, claiming that the maintenance and other issues such as weight-and-balance problems were widespread, and sought to prove the judge erred in his decision.

As a result, instead of the agency working with Air Trek to fix the remaining problems and thus restore the company’s air carrier certificate, the issue remained in limbo until the appeal was resolved. The amicus brief that NATA and NBAA filed with the NTSB sought to expedite the process. According to the brief, the associations viewed the case as “indicative of a growing trend of non-cooperation and a lack of good faith on the part of certain offices in the FAA in their exercise of enforcement powers against Part 135 operators.”

Carr sees the FAA’s actions as something more worrisome. The agency was under enormous political pressure last year to crack down on commercial operators, after problems with Airworthiness Directive compliance at airlines made its inspectors appear to be too cozy with operators. “I think they were looking for some easy kills,” Carr said, “so they could go to Congress and say, ‘we’re taking these people out.’ I don’t know why they had a vendetta.”

Brendan Kelly, the FAA attorney who led the case against Air Trek, works in the FAA’s Eastern Region office in Jamaica, N.Y. This is the same FAA office from which former regional counsel Loretta Alkalay led the revocation of AMI Jet Charter’s Part 135 certificate and secured the record-breaking $10 million civil penalty settlement with TAG Aviation Holding, a part owner of AMI.

The Carr brothers fought back and their attorney, Gregory Winton of Aviation Law Experts, was able to persuade NTSB administrative law judge William Pope to deny the FAA’s appeal.

Carr said that extensive depositions of the FAA inspectors involved in the case revealed serious flaws in the FAA’s case against Air Trek. Carr was so unimpressed by the inspectors’ lack of basic understanding of their own regulations that in one case he videotaped a deposition to make sure the proceeding was clearly on the record. “The first maintenance inspector we deposed was so pathetic, I said, ‘We’ve got to get the next one on videotape,’” he said.

One of the issues written up by an inspector was that an AD that applied to the Westwind was not complied with. AD 74-08-09R2 applies only to an airplane that has a trash can installed in the lavatory area. If there is no trash can, the AD does  not apply. “They said I didn’t do that AD,” Carr said. During depositions, one of the FAA inspectors was asked if he had bothered to look inside the airplane to see if there was a trash can in the lavatory, and it turned out that the inspector had never looked. Another inspector insisted that the Westwind was unairworthy, due to non-compliance with this AD, but the first inspector finally admitted that there is no requirement for an owner or operator to maintain a record of non-applicable ADs.

The portion of the depositions that was videotaped dealt with a 100-hour inspection on one of Air Trek’s piston twins. The FAA inspector cited Air Trek for an overdue 100-hour inspection. The last 100-hour had been done on March 4, 2008. During the FAA’s inspection of Air Trek in May last year, this inspector apparently decided that the next 100-hour inspection was overdue, based solely on his belief that the airplane must have flown more than 100 hours since March 4. According to Carr, in testimony clearly shown on the videotape, the inspector based this belief on a conversation he had with Carr, in which Carr said that the airplane in question “flew quite a bit.” The inspector apparently concluded that “quite a bit” meant that the airplane must have flown more than 100 hours between March 4 and the May inspection; however, Carr said, the inspector never verified this by physically checking the airplane’s flight time, before noting it as one of Air Trek’s alleged violations.

“I don’t understand how they can get away with this,” Carr said. “If they can do this to me, they can do this to anybody.” Air Trek has spent $461,764 on attorney fees and costs to hangar and maintain the company’s air-ambulance fleet during the year the company was grounded and was forced to broker customer flights. “I would like everybody out there to contemplate if they can survive this,” he recommended.

Consequences for Air Trek Wayne and Dana Carr have owned Air Trek for 30 years, “during which we never had any violations,” said Dana. “Until this began, we had good respect and a good working relationship with the local FAA. We have never claimed to be perfect; however, these few concerns could have been addressed without the need for revocation.” The FAA rushed to judgment, he added, and the agency’s actions are “an obvious abuse of power. We offered to demonstrate compliance through this ordeal [and] the FAA would not agree to work with us in any way.” Air Trek plans to apply for reimbursement of attorney fees and expenses under the Equal Access to Justice Act.

The suspension of Air Trek’s air carrier certificate, Dana added, “has had a devastating effect on our business, [with] 65 jobs lost, more than $8 million in lost revenues and uncountable damage to our reputation. It will take years to rebuild what they have destroyed,” he said.