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-:PARTf.lENTOF 

-SPORT/VnCN 

UNITED STATES DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS • .;-, .-o M O 1: U2 

WASHINGTON, D.C. ' ' 

IN THE MATTER OF 

BUSH AIR CARGO, INC 

FAA DOCKET NO. CPlOALOOOl 

(Civil Penalty Proceeding) 

DMS NO, FAA-2010-O3n 

COMPLAINANT'S REBUTTAL BRIEF 

There is no dispute in this case that Respondent operated contrary to the condition set forth in 

paragraph c(2) of Operations Specification A039 when it used William Coon as the second in 

command on the 19 flights referenced in the complaint. Respondent asserts, however, that this 

noncompliance was authorized by its having included William Coon on a separate list, which 

Respondent asserts is an option it had under paragraph d(l)(b) of Operations Specification A008. 

Whether Operations Specification A008 authorizes noncompliance with Operations Specification 

A039 is a matter of interpretation, while the claimed existence of the list is a matter of 

credibility. 

Paragraph d(l)(b) of Operations Specification A008 does not provide the operator with a 

choice of alternative means for complying with its requirements. In support of its claim that it 

does, Respondent lists some eight rules of construction.' Conspicuously absent from its list, 

however, and not even discussed in its analysis is the canon of construction Complainant 

discusses in its closing argument—that all words be given effect. Here, if the comma and the 

' Curiously, all of the cases Respondcflt cites as authority for these rules arc rtlinois appellate court decisions from 

the 1980a and 1990s. 
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phrase if applicable were not at the end of the sentence in question, then the format of the 

sentence would be that pilots must be listed in either A or B. Were it written that way, an 

operator would be in compliance with this requirement if its pilots are listed in either A or B. 

Whether it is the operator's option and whether the separate list would nullify the condition set 

forth in paragraph c(2) of Operations Specification A039 are separate matters, but at least 

gratnmatically speaking, without the phrase if applicable, there would be alternatives in how an 

operator could comply with paragraph d(l)(b) of Operations Specification A008. The fact 

remains, however, that the phrase if applicable does appear at the end of the sentence, so it must 

be given effect. 

What the phrase if applicable does is that it establishes a condition that if met, nullifies the 

requirement for the operator to maintain a list. In other word, it creates an exception to the 

requirement it imposes. Thus, when read as a whole, the format of the sentence is that an 

operator must list its pilots in A unless B is applicable in which case pilots must be listed in B. In 

short, the reasonable, plain, precise, and literal meaning of all of the words in paragraph d(I)(b) 

is that each pilot Respondent uses must be listed in Operations Specification A039 if it is 

applicable. No other interpretation gives meaning to all of the words of the sentence, and 

contrary to Respondent's assertion, there is nothing ambiguous about it. 

Critical to Respondent's position is the notion that what it considers as alternatives in 

paragraph d(l)(b) of Operations Specification A008 are alternatives for complying with the 

conditions set forth in paragraph c(2) of Operations Specification A039. Respondent does not, 

however, directly address this or explain in any meaningful fashion how it arrived at such a 

conclusion, To the extent one could read the or in paragraph d(l)(b) of Operations Specification 

A008 as providing alternatives, these alternatives are not alternative means for complying with 
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paragraph c(2) of Operations Specification A039. Rather, these alternatives have to do with the 

requirement in paragraph d(l)(b) that pilots and co-pilots be identified on a list. In other words, 

to the extent paragraph d(l)(b) of Operations Specification A008 provides altematives, these 

alternatives have to do with compliance with the requiremeiit imposed by that paragraph rather 

than the separate condition imposed by paragraph c(2) of Operations Specification A039. 

Respondent asserts that it had no notice of the Administrator's interpretation. This is true, 

but so what? Respondent never asked if its interpretation was correct, and Complainant did not 

have any reason to thitik Respondent or any other operator to which Operation Specification 

A039 or A040 was issued might conclude that it could evade the clearly spelled out conditions 

set forth in it merely by keeping a separate list of its pilots. 

Regarding credibility. Respondent asserts that Complainant's "suggestion" is irresponsible. 

Respondent then asserts that its deference to the Administrator during the investigative phase 

was a business decision to defer to the Administrator's authority until there was a financial threat 

to the company, and it points out that ASl Stewart testified he never asked to see the list. 

As an initial matter, it is quite understandable that when ASI Stewart first raised the issue in 

July 2009 that Respondent would immediately request the addition of William Coon to 

Operations Specification A039. Doing so ended any question regarding future operations. What 

raises the credibility issue is why, during this process. Respondent didn't at least mention the list 

or its interpretation of Operations Specification ADOS even if it was just for future reference. In 

other words, even before there was any suggestion of a civil penalty, human nature being what it 

is, it just seems logical that had the list existed and had Respondent believed having it nullified 

the condition specified in Operations Specification A039 that the response to ASI Stewart would 

have gone more like, "Okay, let's add Coon to the list, but by the way, we didn't think we 
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needed to because ,..." In any event, the claimed deference to the Administrator until there was 

a financial threat is contradicted by the evidence. Respondent did not respond to the letter of 

investigation sent by ASI Stewart, and neither its response to the Notice of Proposed Civil 

Penalty nor its answer to the complaint—^both of which are responses to clear financial threats— 

contain any mention of Operations Specification A008 or Respondent's rather strained 

inteipretationofit. 

What Respondent fails to address is what is really the heart of the matter. To be perfectly 

blunt, what Complainant contends is that Respondent's Exhibit 4 was created after the 19 flights 

in question. This contention is based primarily on two facts: First, it was practically the 

eleventh hoiu: before Respondent came forward with the exhibit and presented its arguments 

conceming it, and second, there were numerous times prior to the eleventh hour when logic and 

common sense indicate Respondent would have presented the document and/or its arguments 

conceming it if it existed as claimed.^ Most telling in this regard is the response to the Notice of 

Proposed Civil Penalty. Tieman testified that when he received it, he reviewed Operations 

Specification A008 and thought they were good. Tr. 102,104. Yet as noted above, his response 

on behalf of the company makes no mention of this document or his claimed belief that it 

nullified the condition set forth in Operations Specification A039. See Exhibit C-13. The 

Agency's Notice was clearly a financial threat to the company, but in the letter Tieman 

essentially admits it violated the regulation and pleads for forgiveness of or a reduction in the 

civil penalty. In its closing argument Respondent does not even attempt to explain why, given 

these facts, it is unreasonable for Complainant to contend that the claimed creation of 

Respondent's Exhibit 4 in February 2009 is simply not credible, or why some other inference • 

Other factors include the lack of any corroboration for the list's existence prior to August 2010, and the 

contradictory statements regarding how it was prepared. 
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should be drawn. Complainant draws no pleasure from making this contention, but the facts are 

as they are, and they all point to but one conclusion. 

Regarding the sanction. Respondent contends tiie company lacks the ability to pay the 

proposed amount, and that the violations do not warrant any civil penalty. Its contentions 

regarding its financial situation are based on Tieman's assertions regarding profitability and 

Respondent's tax returns for 2008 and 2009. As noted in Complainant's Closing Argument, 

such evidence is insufficient to establish an inability to pay. There is practically no information 

regarding the company's cash flow or what assets the company has, and there is nothing but 

vague assertions regarding how the company was doing in 2010. In short, Respondent failed to 

meet its burden of proof in this regard. 

In support of his contention that no penalty is warranted, Respondent contends that both 

Operations Specification A008 and Operations Specification A039 are intended to address 

operational control, and that the second in command is irrelevant to operational control. 

Respondent further opines that the issuance of Operations Specification A039 to it was probably 

an administrative oversight and served no useful purpose. 

Hogwash! As ASI Stewart testified, they are not both intended to address operational 

control. Tr. 74, 75. Operations Specification A008—^which is issued to all air carriers, large and 

small—is entitled "Operational Control," and consistent with this title, it does address 

operational control. Operations Specification A039—^which is issued only to operators with only 

one authorized pilot in command—is entitled "Single Pilot-in-Command Operator," and 

consistent with its title, it sets forth limitation^ and conditions the Administrator has deemed 

I 

necessary for single pilot-in-command operatdrs. One of tliese conditions is that the operator 
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will only use individuals specifically listed in paragraph c(2) as the second in command pilot. 

What these two operations specifications address are distinctively different things. 

Whether the second in command is relevant to operational control is, itself, irrelevant. A 

civil penalty proceeding is neither the time nor place to debate the wisdom or appropriateness of 

the requirements the Administrator has deemed necessary for aviation safety. While there are 

certainly more significant requirements set forth in Respondent's operations specifications diat 

have a more direct impact on aviation safety, aviation safety is always compromised when 

operators don't abide by the limitations and conditions set forth in their operations specifications. 

In fact, the mere fact Respondent suggests tliat there should be no penalty for violating a 

condition it deems irrelevant or misplaced is an indication Respondent lacks an appropriate 

compliance disposition. Regardless of what Respondent thought of the condition set forth in 

paragraph c(2) of Operations Specification A039, this condition was set fortli in an operations 

specification it accepted, and there is nothing ambiguous about it. It was Respondent's 

responsibility to abide by it without exception. Respondent's apparent inability or refiisal to 

comprehend this rather basic concept is, indeed, troubling. 

The only other matter Respondent raises ostensibly as mitigation is that ASI Stewart, the 

company's principal operations inspector, was aware Respondent was training someone else to 

be a co-pilot/second-in-command. While this is true, it isn't mitigating or exculpatory. Contrary 

to what Respondent implies, its operation is not conducted in partnership with the FAA, and the 

FAA shares none of the blame for Respondent's failure to abide by the clearly stated condition in 

its operations specifications. 

What Respondent does not do in its closmg argument is discuss the amount of the penalty in 

terms of the Agency's sanction guidance policy. Complainant agrees that the published guidance 
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calls for a minimum civil penalty as opposed to a moderate or maximum civil penalty, but a 

minimum civil penalty is not zero and Respondent does not even attempt to show how a lesser 

petialty could or should be calculated under the guidance. 

In summary, the evidence establishes that Respondent operated contrary to Operations 

Specification A039 when it used William Coon as the second in command on the 19 flights 

referenced in the complaint. As Respondent points out in its closing argument, by doing so it 

also operated contrary to Operations Specification A008. Even if paragraph d(l)(b) of Operation 

Specification A008 is interpreted as giving Respondent an alternative, the alternative is in respect 

to what Operation Specification A008 requires. It in no way authorizes noncompliance with 

Operation Specification A039, but even if it did, the claimed existence of Respondent's Exhibit 4 

is not credible. The civil penalty is well below the amount Complainant could have sought 

consistent v^dth the Agency's sanction guidance, and Respondent has not established that some 

lesser amount is appropriate. The law judge should, therefore, find that Respondent violated 

§ 119.5(1) as alleged and assess a $2800 civil penalty. 

Respectfully submitted this 7**^ day of February 2011, 

HOWARD L, MARTIN, JR. 

Regional Counsel 

By: 2^ 

Glenn H. Brown 

Senior Attorney 
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CERTIFICATE OF SERVICE 

Re: Bush Air Cargo 

FAA Docket No. CPlOALOOOl 

DMS No. FAA-2010-0311 

I hereby certify that oti this date I have served a copy of the Complainant's Rebuttal Brief by 

postage-prepaid, certified mail, retiun receipt requested to the following: 

The Honorable Richard C. Goodwin 

Office of Hearings, M-20; 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E. 

East Building Ground Floor, Room El 2-320 

Washington, DC 20590 

Barton M. Tieman, President 

Bush Air Cargo, Inc. 

P.O. Box 93144 

Anchorage, AK 99509-3144 

I further certify that on this date I have served the original and two copies of the Complainant's 

Rebuttal Brief by postage-prepaid, certified mail, return receipt requested and facsimile, 

addressed as follows: 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, DC 20591 

Attention: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building—Suite 2W1000 

DATED: F'^ , 7 ^O/ l 

€ ^ 

-ederal Aviation Administratioiw'^ ^ f 

Office of Regional Counsel ^ CJ 

222 West 7th Avenue, Box 14, AAL-7 

Anchorage, Alaska 99513-7587