U.S. Department 

of Transportation 

Federal Aviation 

Administration 

February 29, 2016 

Office of the Chief Counsel Enforcement Division 

Western Team 

222 W. 7'" Ave, Box 14 

Anchorage, Alaska 99513-7587 

VIA FACSIMILE AND CERTIFIED MAIL- RETURN RECEIPT REQUESTED 

Federal Aviation Administration 

Attn: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building 

800 Independence A venue, Southwest 

Washington, DC 20591 

Re: In the Matter ofBnsh Air Cargo, Inc., FAA Case No. 2015WP910102 

Enclosed please find a copy of a request for hearing and the original and one copy of the 

Complaint in this proceeding. 

The FAA requests that the hearing in this matter be held in Anchorage, Alaska, and expects 

the hearing will last one day. For scheduling purposes, counsel for the FAA is unavailable 

during the month of November in 2016. 

Please address all communications to the undersigned at: 

Federal Aviation Administration 

Attn: Patricia L. Baysinger 

Enforcement Division 

Western Team 

222 W.7'h Avenue Box 14 

Anchorage, Alaska 99513-7587 

(907) 271-5264 

Sincerely, 

Kyte Lo111az,ow 

Kyle Lomazow 

FAA Attorney 

Enclosure: Request for Hearing (Appeal) 

Complaint 
U.S. DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION HL;,c,",.c·,, 

In the matter of: 

BUSH AIR CARGO, INC. 

JUDGE NOT ASSIGNED 

) 

) 

) 

) 

FAA Docket No. CP- not assigned 

Case No. 2015WP910102 

COMPLAINT 

The Complainant hereby files its Complaint, pursuant to Rule 208 of the Rules of 

Practice in FAA Civil Penalty Actions (14 C.F.R. § 13.208), and states as follows: 

Respondent Bush Air Cargo, Inc., was advised through a Notice of Proposed Civil 

Penalty dated October 22, 2015, and by a Final Notice of Proposed Civil Penalty dated February 

4, 2016, that the FAA proposed to assess a civil penalty in the amount of$18,400. By a letter 

dated February 22,2016, Respondent requested a hearing. The Enforcement Division, Western 

Team received Respondent's request for a hearing by electronic mail on the same date. 

II. 

1. Bush Air Cargo, Inc. (BAC) is now, and at all times relevant herein was, the holder of 

Air Carrier Certificate Number QOBC244L, issued under Title 14, Code of Federal 

Regulations (C.F .R.), Part 119 and conducts its operations pursuant to Part 135 of the 

Federal Aviation Regulations (FAR), 14 C.F.R. Chapter I. 
2 

2. At all times relevant herein, BAC was required to comply with the requirements of 14 

C.F.R. Part 120 and 49 C.F.R. Part 40 for its drug and alcohol testing program. 

3. Random selections were made from BAC's Department of Transportation (DOT) 

random drug and alcohol testing pools on the following dates: 

a. October 8, 2013 

b. January 6, 2014 

c. April 7, 2014 

d. July8,2014 

4. On July 18,2013, BAC hired Robert Phillips to perform safety-sensitive functions. 

5. Mr. Phillips was not included in BAC's DOT random drug and alcohol testing pools 

on the dates mentioned in paragraph 3 above. 

6. Mr. Phillips was previously employed by TransNorthern, LLC, a DOT regulated 

employer, in the two (2) years before being hired by BAC. 

7. BAC permitted Mr. Phillips to perform safety-sensitive functions on the following 

dates: 

a. June 14, 2014 

b. Ju1y8,2014 

c. July 23,2014 

d. September 22, 2014 

e. September 23,2014 

f. November 4, 2014 

g. November22, 2014 

h. December 5, 2014 

8. BAC permitted Mr. Phillips to perform safety-sensitive functions on the dates 

mentioned in paragraph 7 above without making a good faith effort to review the 

information listed in 49 C.P.R.§ 40.:e.5(b) thirty (30) days from the date on which the 

employee first performed safety-sensitive functions. 
3 

III. 

1. By reason of the foregoing, Respondent violated: 

a. 14 C.F.R. §120.105, in that, it used an employee to perform a safety-sensitive function 

when that employee was not subject to drug testing implemented in accordance with 

14 C.F.R. Part 120, Subpart E. 

b. 14 C.F.R. § 120.215(a), in that an employee performing a safety-sensitive function 

was not subject to an alcohol testing program implemented in accordance with 14 

C.F.R. Part 120, Subpart F. 

c. 49 C.F.R. § 40.25(a), in that it failed to request drug and alcohol information about an 

employee seeking to begin performing safety-sensitive duties for BAC. 

d. 49 C.F.R. § 40.25(d), in that it failed to remove employees from safety sensitive 

duties 30 days from the day on which they first performed safety-sensitive functions 

after failing to obtain or making and documenting a good faith effort to obtain, 

infonnation about their drug and alcohol testing records from previous employers. 

2. Pursuant to 49 U.S.C. § 46301(a)(l), Respondent is subject to a civil penalty not 

to exceed $11,000 for each violation of the Federal Aviation Regulations. 

3. Under the facts and circumstances of this case and in accordance with the 

Administrator's Sanction Guidance in FAA Order 2150.3B, Appendix B, a civil penalty of 

$18,400 is appropriate for the violation(s) in this case. 

WHEREFORE, the Complainant respectfully requests that the Administrative Law Judge 

enter an order that Respondent be assessed a civil penalty in the amount of$18,400. 
Date: February 29,2016 

Respectfully submitted, 

Peter J. Lynch 

Assistant Chief Counsel 

for Enfm ~ement 

By: Kyte Lo111e0ow 

Kyle Lomazow 

Attorney 

Enforcement Division, Western Team 

1601 Lind Avenue S.W. 

Renton, W A 98057 

Email: kyle.lomazow@faa.gov 

Telephone: (425) 227-2007 (main) 

(425) 227-1847 (direct) 

(425) 227-1007 (fax) 

NOTE: 

Pursuant to 14 C.F.R. § 13.209(a), a written answer to a complaint must be filed no later 

than thirty (30) days after service of the complaint. 

4 
CERTIFICATE OF SERVICE 

I hereby certify that on this date, I have sent by U.S. Certified Mail- return receipt 

requested, and one copy by electronic mail, a copy of the foregoing complaint in the matter of 

Bush Air Cargo, Inc, FAA Docket No. CP- not assigned, Case No. 2015WP910102, to: 

Barton M. Tiernan 

President and General Counsel 

Bush Air Cargo, Inc. 

P.O. Box 93144 

Anchorage, AK 99509 

Tel: (907) 277-7657 

Bushaircargo@gmail.com 

5 

1n addition, I hereby certify tbat on this date, I have sent by U.S. Certified Mail- return 

receipt requested, the original and one copy, and one copy by facsimile, of the foregoing 

document to: 

Hearing Docket 

Federal Aviation Administration 

800 Independence Avenue, SW 

Washington, DC 20591 

Attn: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building- Suite 2Wl 000 

Fax: 202-267-1293 

Date: 

Patricia L. Baysinger 

Legal Program Specialist 

Enforcement Division 

Western Team 

222 W.7'h Avenue Box 14 

Anchorage, Alaska 99513-7587 
6 

(907) 271-5264 
UNITED STATES DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

IN THE MATTER OF 

BUSH AIR CARGO, INC 

FAA CASE NO. 2015WP10102 

(Civil Penalty Proceeding) 

REQUEST FOR HEARING 

Bush Air Cargo, Inc., pursuant to a Final Notice of Proposed Civil Penalty dated 

February 4, 2016, requests a hearing in the above referenced FAA civil penalty action 

DATED""' 22" doy ofF•lmmzy, 2016. / 

,~L:_ 

CERTillCATE OF SERVICE 

I certii)' that on February 22,2016 

a copy of the foregoing was delivered 

by u.s. Mrul to: 

Pat Basinger 

Enforcement Division, Western Team 

222 West 7th Avenue, #14 

Anchorage, Alaska 99513-7587 

Federal Aviation Administration 

Attention: Hearing Docket Clerk, AGC-430 

Wilber Wright Buildlng-Ste 2W1000 

800 Independence Avenue, SW 

Was:r159~ 

~on M .. Tiernan 

President/General Cmmsel 

Bush Air Cargo, Inc. 

'---"Barton M. Tiernan 

President and General Counsel 

Bush Air Cargo, Inc. 

P.O. Box 93144 

Anchorage, Ak 99509 

(907) 277-7657