U.S. Department of Transportation Federal Aviation Administration February 29, 2016 Office ofthe 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 Avenue, Southwest Washington, DC 20591 

### Re: In the Matter ofBnsh Air Cargo, Inc., FAA CaseNo. 

### 2015WP910102
Enclosed please find a copy ofa request for hearing and the original and one copy ofthe Complaint in this proceeding. The FAA requests thatthe 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 ofNovember 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 FAAAttorney Enclosure: Request for Hearing (Appeal) ComplaintU.S. DEPARTMENT OF TRANSPORTATION FEDERALAVIATION ADMINISTRATION HL;,c,",.c·,,

In the matter of: BUSH AIR CARGO, 

### INC.
JUDGE NOT ASSIGNED ) ) ) ) FAA DocketNo. CP- not assigned Case No. 2015WP910102

COMPLAINT The Complainanthereby files its Complaint, pursuant to Rule 208 ofthe Rules of Practice in FAA Civil PenaltyActions (14 C.F.R. § 13.208), and states as follows:
Respondent Bush Air Cargo, Inc., was advised through a Notice ofProposed Civil Penalty dated October 22, 2015, and by a Final Notice ofProposed Civil Penalty dated February 4, 2016, that the FAA proposed to assess a civil penalty in the amount of$18,400. Bya letter dated February 22,2016, Respondent requested a hearing. TheEnforcement Division, Western Team received Respondent's request for a hearing by electronic mail on the same date.

II. 1. BushAir Cargo, Inc. (BAC) is now, and at all times relevant herein was, the holder of AirCarrier Certificate Number QOBC244L, issued under Title 14, Code ofFederal Regulations (C.F.R.), Part 119 and conducts its operations pursuant to Part 135 ofthe 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 ofTransportation (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 DOTrandom drug and alcohol testing pools
on the dates mentioned in paragraph 3 above. 6. Mr. Phillips was previously employed byTransNorthern, 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 ofthe foregoing, Respondent violated:

a. 14 C.F.R. §120.105, inthat, 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, SubpartE. b. 14 C.F.R. § 120.215(a), in that an employee performing a safety-sensitive function
wasnot 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 beginperforming 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 abouttheir drug and alcohol testing records from previous employers. 2. Pursuant to 49 U.S.C. § 46301(a)(l), Respondent is subjectto a civil penalty not to exceed $11,000 for each violation ofthe Federal Aviation Regulations. 3. Under the facts and circumstances ofthis 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 Complainantrespectfully requests thatthe 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 ChiefCounsel

for Enfm**~ement** By: 

# Kyte Lo111e0ow Kyle Lomazow Attorney Enforcement Division, Western Team 1601 Lind Avenue S.W. Renton, WA 98057 Email: kyle.lomazow@faa.gov Telephone: (425) 227-2007 (main) (425) 227-1847 (direct) (425) 227-1007 (fax)

NOTE: Pursuantto 14 C.F.R. § 13.209(a), a written answer to a complaint must be filed no later than thirty (30) days after service ofthe complaint. 4CERTIFICATE OF SERVICE 

### I hereby certify that on this date, Ihave sent by U.S. Certified Mail- return receipt requested, and one copy by electronic mail, a copy ofthe foregoing complaint in the matter of Bush Air Cargo, Inc, FAA DocketNo. CP- not assigned, Case No. 2015WP910102, to:
Barton M. Tiernan President and General Counsel BushAir 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 documentto: Hearing Docket Federal Aviation Administration 800 Independence Avenue, SW Washington, DC 20591 Attn: Hearing Docket Clerk, AGC-430 Wilbur Wright Building- Suite 2Wl000 Fax: 202-267-1293
Date:

Patricia L. 

### Baysinger Legal Program Specialist Enforcement Division Western Team 222 W.7'h Avenue Box 14 Anchorage, Alaska 99513-75876 (907) 271-5264UNITED STATES DEPARTMENTOF TRANSPORTATION OFFICE OFHEARINGS

WASHINGTON, D.C.
IN THEMATTEROF BUSHAIRCARGO, INC FAACASENO. 2015WP10102 (Civil PenaltyProceeding) REQUESTFORHEARING BushAir Cargo, Inc.,pursuantto a FinalNotice of ProposedCivilPenaltydated February4, 2016, requests a hearing inthe abovereferenced FAA civilpenalty action


### DATED""'22"doy ofF•lmmzy, 2016. /



# ,~L:_

CERTillCATE OF SERVICE I certii)'that onFebruary22,2016 a copy of

# the foregoing

# was delivered by u.s. Mrulto: PatBasinger EnforcementDivision, Western Team 222 West7thAvenue, #14 Anchorage, Alaska99513-7587 Federal AviationAdministration Attention: HearingDocketClerk, AGC-430 WilberWrightBuildlng-Ste2W1000 800 IndependenceAvenue, SW



# Was:r159~



# ~on M
..Tiernan President/General Cmmsel BushAir Cargo, Inc. '---"BartonM.Tiernan Presidentand General Counsel BushAir Cargo, Inc. P.O. Box93144 Anchorage, Ak99509 (907) 277-7657