U.S. DEPARTMENT OF TRANSPORTATION . ^ .'--^ ricR)n-\OUS 

OFFICE OF HEARINGS ^^' ^^^" 

WASHINGTON, D.C. ^ .^. , c 

In the Matter of: 

Bush Air Cargo, Inc. 

FAA Docket No. CPlOALOOOl 

(Civil Penalty Proceeding) 

DMS NO. FAA-2010-0311 

RESPONDENT'S OPPOSITION TO COMPLAINANT'S MOTION FOR 

DECISION AND MOTION FOR DECISION IN RESPONDENT'S FAVOR 

COMES NOW respondent, Bush Air Cargo, Inc. ("BAC"), and through the 

undersigned counsel, opposes Complainant's motion, and respectfully requests this court 

rule in its favor and dismiss the instant complaint. 

FACTS 

On February 9, 2010, BAC contacted its principal operations instructor 

("POI") and notified him of new-hire training and that BAC would be adding a secondin-command ("SIC") to its operations. Exhibit 1. BAC notified the Administrator the 

SIC would be ready for an SIC flight check in late February, 2009. Because BAC's POI 

was unavailable to perform a necessary SIC flight check and BAC was temporally 

without a qualified SIC and had a scheduled revenue flight, BAC's POI authorized Alan 

G. Larson, certificate No. 188428458, to perform the flight check between February 16, 

2009 and March 2, 2009. Exhibit 2. Mr. Larson performed the SIC proficiency flight 

with Mr. William R. Coon, certificate No. 3037234, on February 21, 2009. Exhibit 3. 

BAC thereafter added Mr. Coon to its Listing of Qualified Crew (Exhibit 4) and thereafter 

began using Mr. Coon as an SIC for revenue flights; specifically at issue here, February 

21, 2009 through May 1, 2009. 

FAA V. BAC 

Sum Judge; Page 1 of 4 
fvim^ 

On July 14, 2009, at the request of BAC's POI, BAC formally requested that 

Mr. Coon be added to its Operations Specifications ("OpSpecs") A039(c)(2) as an SIC. 

Exhibit 5. The Administrator filed its Notice of Proposed Certificate Action December 

16,2009. 

The Administrator's sole allegation is that BAC "... was required by its 

operations specifications to use...'' only Donald P. Ballard, a second in command pilot 

listed in BAC's original OpSpecs, during the time period of February 21,20Of tbrough 

May 1, 2009. Complainant cited only FAR 119.5(1) which states: 

No person may operate an aircraft under this part, part 121 of this chapter, 

or part 135 of this chapter in violation of an air carrier operating certjfioate 

or appropriate operations specifications issued under this part. 

Presumably, Complainant relies on A03 9(c)(2) in asserting BAC did not 

comply with its OpSpecs. This section of BAC's OpSpecs states: "The following 

individuals are the only persons used as second-in-command:..." Exhibit 6. During the 

period at issue, only Mr. Ballard was listed in BAC's A039(c)(2). 

BAC's OpSpecs A008-2(d)(l)(b) states: 

Each pilot must be specifically listed by name and airman certificate 

number on a list of pilots maintained by the certificate holder at its itiain 

base of operations or listed in operations specification A039 or A040, if 

applicable, [emphasis added] • ,. 

Exhibit 7. 

ARGUMENT 

The essence of Complainant's action against BAC is that BAC failed to 

formally request Mr. Coon be added to OpSpec A039(c)(2) before using him on a 

revenue flight; arguing Mr. Coon had to be listed in the document prior to any flight. 

Regardless of the fact the Administrator was aware of Mr. Coon's training as an SIC, the 

FAA V. BAC 

Sum Judge; Page 2 of 4 
necessity of having Mr. Larson perform the proficiency check in place of BAC's POI 

because of the need to have Mr. Coon available for a revenue flight, pursuant to BAC's 

OpSpecs A008-2(d)(l)(b), BAC is not required to list an SIC in its OpSpecs prior to 

using an otherwise qualified SIC. Id. 

A008-2(d)(l)(b) specifically states BAC may maintain "...a list of pilots ...at 

its main base of operations or listed in. ..A039 or A040, if applicable." BAC chose to 

maintain a list of pilots as allowed in A039(c)(2). Exhibit 4. It is a stretch to interpret 

A008-2(d)(l)(b) as requiring a newly trained and qualified SIC to be listed in A039(c)(2). 

At best, A008-2(d)(l)(b) and A039 specifically contradict the other; and does not justify 

a civil penalty. 

Significantly, there is no evidence or allegation BAC was ever put on notice 

of the Administrator's interpretation of BAC's OpSpecs A008-2(d)(l)(b) or A039(c)(2), 

or that there was any issue with the same prior to the alleged violation. 

And finally, the Administrator conspicuously does not address A008-

2(d)(1)(b) of BAC's OpSpecs; a section of BAC's OpSpecs that specifically repudiates 

the basis of the Administrator's complaint. 

CONCLUSION 

BAC's OpSpec A008-2(d)(l)(b) specifically state BAC may keep a list of 

pilots in lieu of listing the SIC's in A039. There is no question of fact in the pleadings 

thus far presented and even if the Administrator's allegations are placed in a light most 

favorable to it, its complaint is without merit and should be dismissed accordingly. 

FAA V. BAC 

Sum Judge; Page 3 of 4 
ith Dated this 24'" day of August, 2010 

m^rs 

Barton M. Tieman, 

President and General Counsel 

Bush Air Cargo, Inc. 

P.O. Box 93144 

Anchorage, Ak 99509 

(907) 277-7657 Ph 

CERTIFICATE OF SERVICE 

I certify that on August 24, 2010 

A copy(s) of the foregoing was delivered 

by U.S. Mail to: 

Office of the Regional Counsel 

Attention: Glen Brown 

222 West 7* Avenue #14 

Anchorage, Alaska 99513-7587 

The Honorable Richard C. Goodwin 

Office of Hearing, M-20 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E. 

East Building Ground Floor, Room El2-320 

Washington, DC. 20590 

(Original and 2 copies) 

Fededral Aviation Administration 

800 Independence Avenue, SW 

Washington, DC 20591 

AttenJiOn: Hrg D9^1k,/GC-430 

g-Ste 2W1000 

iarton M. Tieman 

President/General Counsel 

Bush Air Cargo, Inc. 

FAA v. BAC 

Sum Judge; Page 4 of 4 
Bush Air Cargo, Inc. 

P.O. Box 93144 • Anchorage. Alaska 99S09-3144 (907)277-7657 • Tax (907)274-1725 

February 9, 2009 

Anchorage FSDO, AL-03 

Attention; Stephen Stewart 

300 W. 36th Ave., Suite 101 

Anchorage, Alaska 99503 

Re: Training 

Dear Stew: 

This letter is intended to notify you of Bush Air Cargo company training, including new 

hire second officers, beginning February 19, 2009 through February 23, 2009, from 

9:00am to 5:00pm. Training will be at Mustang Air on the Palmer airport. As of now, 

we tentatively have five (5) people identified who will be participating. Upon your 

request I will furnish you with the information on these prospective pilots and their 

certificate numbers. 

Sincprely, 

Barton M. Tieman 

Bush Air Cargo, Inc. 

President 

EXHIBIT 1 

lOF l 
e 

U.S. Department 

of Transportation 

Federal Aviation 

Administration 

Anchorage Flight Standards District Office 

Alaskan Region 

300 West 36lti, Suite 101 

Anchorage. AK 99503 

Phone: {907)271-2000 

Fax: (907) 271^777 

1-800-294-5116 

February 12, 2009 

Bush Air Cargo, Inc. 

Bart Tieman - President 

PO Box 93144 

Anchorage, AK 99509-3144 

Dear Mr. Tieman: M 

LETTER OF AUTHORIZATION 

Alan G. Larson, FAA Airman Certificate Number 188428458, an authorii^d check 

airman for TransNorthern Aviation, Inc, is approved to conduct the following flight crew 

checks for benefit of Bush Air Cargo, Inc. 

To conduct not more than two (2) Second in Command (SIC) checks. 

These checks may only be conducted in Douglas DC-3 aircraft authorized by Bush Air 

Cargo, Inc's Operations Specifications. 

These checks may only be conducted between February 16, 2009 and March 2, 2009. 

This Letter of Authorization becomes void at 12:01 AM on March 3, 2009, or on the 

availability of your Principal Operations Inspector (POI) to conduct these SIC checks, 

whichever occurs first. 

Bush Air Cargo, Inc's management must attempt to determine the availability of its POI 

to conduct either of these two SIC checks prior to scheduling Mr. Larson to^o them. 

Sincerely, 

Stephen J. Stewart 

Principal Operations Inspector 

Customer Feedback 

http://www.faa.qov/about/office orq/headquarters offices/avs/offices/afs/qms/ 

EXHIBIT 2 

lOF l 
AIRMAN COMPETENCY/PRC/^ENCY CHECK 

FAR 135 

LOCATIi DATE OF CHECK 

•z>-zf-g^ 

NAM E OF AIRMA N (last, first, middle initial) 

4- ^ 

TYPE OF CHECK 

FAR 135.293 " ^ F* FAR 135.299 K. 

^LOT 

~V_^RTIFICATIO N 

TNFORMATIGN : 

Grade COP AA. »W\ C^*~ C/^ <»r- \ 

Number 3o^l^3<^ -

MEDICAL INFORMATION : Date of Exam. 

Date of Birth ^ - ^ ' ^ - j^TZ , Clan SCCOAt A 

EMPLOYED BY 

'6o3Vl<^va CM^G O 

BASED AT (City, State) TYPE AIRPLAN E (Make/Model) Dci< 

FLIGHT MANEUVERS 

Simulator/Training Device (Make/Model) 

NAM E OF CHECK AIRMA N FLIGHT TIME 

/rZ, 

/Jnr/AFLIGHT MANEUVERS GRADE (S - Satisfactory U-Unsansfactoryl 

PILOT 

Aircraft 

Simulator 

Trng. 

Dev. 

Aircraft 

Simulator 

Trng. 

Dev. 

PREFLIGHT HELICOPTER 

1. Equipment Eyamination (Oral or written) 1 . Ground and/or Air Taxi 

2. Prafliqht Impaction 2. Hovering Manuaven 

3. Taxiing 3. Normal & Crowwind T.O. & Landings 

4. Powarplant Checks 4. High Altitude Takeoffs & Landings 

TAKEOFFS 

3^ 

5. Sim. Engine Failure 

5. Normal 6. Confined Areas, Slopes, & Pinnacles 

6. Instrument 7. Rapid Deceleration (Quick Stops) 

7. Croawind 8. Autorotations (Single Engine) 

8. With Simulated Powerplant Failure 9. Hovering Autorotatk>ns (Single Engine) 

9. Raiected Takeoff 10. Tail Rotor Failures (Oral) 

INFLIGHT MANEUVERS 1 1 . Settling With Power ^Ors/or F//9/ir> 

10. Steep Turns SEAPLANE OPERATIONS 

1 1 . Approaches to Stalls 1. Taxiing, Sailing, Docking 

12. Specific Flight Characteristics 2. Step Taxi 8i Turns 

3. Powarplant Failure 3. Glassy/Rough Water T.O./Landings 

LANDINGS 4. Normal Takeoff & Landings 

14. Normal 5. Crosswind T.O. 8i Landings 

15. From an ILS OTHER 

16. Croawind 6. Ski Plane Ops. (when applicable) 

17. With Simulatad Powarplant(s) Failure GENERAL 

18. Rejected Landing 7. Judgment 

19. From Circling Approach 8. Craw Coordination 

EMERGENCIES 

20. Normal and Abnormal Procedures 

AIRMA N COMPETENCY INFORMATION: 

2 1 . Emergency Procedures 

INSTRUMENT PROCEDURES 

Demonstrated Current Knowledge FAR 135.293(a) 

Make/Model Expires DC" ^ (12 months) I 2'"/' ^ 

22. Area Departure 

23. HoMing 

Demonstrated Competency FAR 135.293(b) 

Make/Model Expires Q C - ^ (12 months) ( Z " ) O 

24. Area Arrival 

26. ILS Approaches firf»%> 74 /HiisA 

Satisfactorily Demonstrated Line Checks 

FAR 135.299 Expires (12 months) ( 2^1 ^ 

26. Other Instrument Approaches 

Approaches: NDB/ADF 

Satisfactorily OemorKtrated IFR Proficiency 

FAR 135.297 Expires ( 6 months) ( ^/

'A ^ 

VOR 

ILS 

Use of Autopilots 

Expires 

I'ds not) Authorized. 

(12 months) ( A / 4 

Othe REMARKS "S^V-Se TM0»-T ^ ^YK^W\5Wt O 3fc\j r (Specify) 

27. Circling Approaches 

28. Miswd Approaches 

29. Comm./Nav. Procedures f 

30. Use of Auto. Pitot 

ONApprovad 

D Disapproved 

"lESULT OF 

.HECK 

CHECK AIRMAN'S 

PERFORMANCE (FAA Only) 

D Satisfactory 

D Unsatisfactory 

REGION 

^uAsy^At^ 

DISTRICT OFFICE 

febO- J:XHIBIT 3 

^ 3 » 1 OF 1 

F AA INSPECTOR'S SIGNATURE 

FAA Farm 8410^3 (6-8i) • U.S.QPO: 1993-0-769-908 
u 

•'*W.it?5 

BUSH AIR CARGO, INC 4 

LISTING OF QUALIFIED GREW PER A0008-2(il)(l)(b) 

DATE: February 21,2009 

Pilot 

Tieman, Barton Matthew 

Ballard; Donald Preston 

Coon, William Robert 

Certificate Number 

560949040 

26402844 

3037234 

LAST 29|iP7/299 

2/21/09 

EXHIBIT 4 

lOF l 

S3; 
Bush Air Cargo, Inc. 

P.O.Box93144 • Anchorage, AJaska99509-3144 • (907)277-7657 • Fax (907)274-1725 

July 14, 2009 

Anchorage FAA Flight Standards Division 

Attention: Stephen Stewart 

4510 W. International Airport 

Anchorage, Alaska 99502 

Re: Operations Specifications A039 

Dear Stew:' 

please consider this letter a formal request to add William R. Coon, pilot certificate 

number 3037234, to Operations Specifications A039 as a second in command pilot 

("SIC"). 

Please contact me at your earliest convenience for any additional procedures you require 

to achieve this modification. 

Thanks, 

Barton M. Tieman 

Bush Air Cargo, Inc. 

President 

EXHIBIT 5 

1 OFl 
U.S. Department 

of Transportation 

FederalAviation 

Administration 

Operations Specifications ' sj 

A039. Single Pilot-in-Command Operator HQ Control: 03/02/05 

HQ Revision: OOd 

a. Single Pilot-in-Command Operator. The certificate holder is authorized (in accordance with the 

deviation provisions of Title 14 Code of Federal Regulation (CFR) Sections 135.21(a), 119.69(b), 

13S.341(a), and the conditions and limitations of this paragraph) to conduct operations as a Single Pilot-inCommand Operator. The certificate holder shall conduct all operations in accordance wife Part 135 under 

the conditions and limitations of this operations specification. 

b. The certificate holder shall conduct all operations under Part 135 in accordance with tiie following 

deviation limitations and conditions. 

(1) Anoperationsmanual, as required by Section 135.21: 

No deviation 

(2) Management personnel, as required by Section 119.69: "^ 

Management position of General Manager authorized. 

(3) An approved pilot training program, as required by Section 135.341: 

No deviation 

c. The certificate holder shall conduct its Part 135 operations in accordance with the :fol|p#ing 

conditions: 

(1) The only individual used as pilot-in-command is holder of Airman Certificate Number: 

NAME 

Barton M. Tieman 

cEETincATB mssljifii 

560949040 

(2) The following individuals are the only persons used as second-in-command pilots: 

NAME 

William R. Coon 

Donald P. Ballard 

CERTIFICATE NUMBS» 

3037234 

26402844 

(3) Each second-in-command pilot meets the flight crewmember requirements of Section 135.245. 

(4) Each second-in-command pilot meets the pilot testing reqtiireipients of Section 135.293. 

(5) Each second-in-command pilot satisfactorily completes the entire test required by Section 135.293 

while occupying the normal second-in-command duty station. 

(6) No aircraft type certificated for more than nine passenger seats is used. 

(7) No Category II or III instrument approach operations are conducted. 

(8) No operations are conducted outside the United States, Canada, Mexico, and the Caribbean. 

(9) For the above deviations to be effective, they must also be listed iu OpSpec A005. 

Print Date: 7/16/2009 A039-1 

BUSH AIR CARGO INC 

ORIGINAL 

Certificate No.: Q0BC244L 

EXHIBIT 6 

lOF l 
U.S. Department 

of Transportation 

Federal Aviation 

Administration Operations Specifications 

(a) The certificate holder and the aircraft owner/lessor agree that the certificate holder is 

required to use the aircraft owner's/lessor's pilot in Part 135 operations, 

(b) The aircraft owner/lessor is obligated to furnish pilots to the certificate holder to operate the 

aircraft, or, 

(c) The aircraft owner/lessor has the power to veto who the certificate holder will use to pilot 

the aircraft in Part 135 operations, so as to limit the certificate holder to using only the owner/lessor's 

pilots. 

(4) Transfer, surrender, abrogate, or share operational control responsibility with any party. 

(5) Engage in any arrangement with an aircraft ovmer, lessor or any other person or entity, such as 

an aircraft management entity, which allows the use of an aircraft for operations under these operations 

specifications without a complete, effective and sustainable transfer of operational control to the 

certificate holder for all Part 135 operations conducted under these operations specifications. 

d. Elements of Operational Control. The following items are essential elements of operational control 

arid are required to be components of the operational control system, used by the certificate holder, and 

as described or referenced in subparagraph a. above: 

(1) Crewmember Requirements. The certificate holder may not conduct any operation under 

Part 135, unless each of the certificate holder's crewmembers is: 

(a) The certificate holder's direct employee or agent during every aspect of the Part 135 

operations, including those aspects related to any pre-flight and post-flight duties. The certificate holder 

is accountable for the actions and inactions of these persons during all its aircraft operations. 

(b) Currently trained and/or tested, qualified, and holds the appropriate airman and medical 

certificates to conduct flights for the certificate holder under Part 135, and is otherwise qualified to 

_ accept the specific flight assignment, considering flight and rest requirements, airspace qualification and 

the type of operation intended in the assignment. Each pilot must be specifically listed by name and 

airman certificate number on a list of pilots maintained by the certificate holder at its main base of 

"operations or hsted in operations specification A039 or A040, if applicable. This information must t 

available for inspection by the Adminis 

l.e 

linistrator as specified m Section l Ji.bJ. 2 

(2) Aircraft Requirements. The certificate holder may not conduct any operation under Part 135 

unless each aircraft used in its Part 135 operations is: 

(a) Owned by the certificate holder and remains, without interruption in the certificate holder's 

legal and actual possession (directly or through the certificate holder's employees and agents) during all 

ofits Part 135 flights; or 

(b) Leased by the certificate holder or otherwise in the legal custody of the certificate holder 

and remains in the certificate holder's exclusive possession or custody during all ofits Part 135 flights. 

(c) For each aircraft which the certificate holder uses under these operations specifications, the 

aircraft owner or other lessee of the aircraft may operate the aircraft under Part 91, imder the control 

and responsibility (including potential liability for an unsafe operation) of the owner or other lessee, as 

long as the following condition is met: 

Print Date: 1/21/2010 A008-2 

BUSH AIR CARGO INC 

ORIGINAL 

Certificate No.: Q0BC244L 

EXHIBIT 7 

lOF l