01/27/2010 17:01 FAX 2024935142 FAA * DMS 2)001/012 

UMITED STATES OF AMBRTCA 

DiiPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMLNlSTRATTON 

WASfflNGTON, D,C. 

IN THE MATTER OF 

VENTURA AIR SERVICES, INC. 

FAA Docket No. CP08EA0008 

(Civil Penally Action) 

DMS NO, FAA-2008-0505 

COMPLAINANTS BRIEF IN REPLY TO REPONDENr S APPEAL BRETF 

COMES NOW the Complainant, the Federal Aviation Admimstration, by and ihrough its 

designated and authorized representative, the Regional Counsel for the Eastern Region, and his 

designated smd authorized representatives, pursuant to the Rules of Practice in FAA Civil Penalty 

Actions (herein the "Rules")* 14 C.F.R. Section 13.201 etseg., to file this brief in reply to a brief 

submitted by Respondent in support of its appeal. 

Jji his September 24, 2009 initial dcci.sion. Administrative Law Judge ("ALJ") Isaac 

Benkin found that Respondent violated 14 C.RR. §135.293(1) and (4)-(8)^ when it used a pilot 

S 135-293 Initial and reoux-rent pilot tasting requireniesnts. 

(a) flo certificHttt huldcr may u.se A pilot, nor may any person serve aa a 

pilot, unless, since the beginning of the 12th calendar month baforo that 

service, that pilot has passed a written or oral test, given by the 

Administrator or an authorized check pilot, on that pilot's knowledge in the 

following area.')— 

(1) Thft appropriate provisions of part.s 61, 91, and 135 of thi.=5 chapr.ci: and 

thQ operations iipecifications and the manual of the certifiesto holder; 

(2) for each type of aircraft to be flown by the pilot, the aircraft 

powerplant, major aomponehts and systems, major appliances, performance and 

operar.ing limitations, standard and emergen^^y operating procedures}, and the 

contents of the approved Aircri^ft Flight Manual or equivalent, as applicablo; 

(3) t'or each type a£ aircraft to be flown by the pilor,, the method of 

determining compliance with weight and balance limitations for takeoff, 

landing 

TOOia ZM3H3M31 CSOiCiZfTB Tfd fl'-Sa OTOZ/flZ/TO 
01/27/201 0 17:0 1 FAX 2024935142 FAA •* DMS @1002/012 

on three flights in April 2006 when that pilot had not passed the required knowledge test. The 

ALJ made no finding as to 14 CJ-'-R. §91.13(a)^. Although Complainant sought a civil penalty of 

$15,000, the ALJ assessed a $1 civil penalty.^ 

I Background 

In the Complaint, as amended, Complainant alleged that; 

1. Ventura Air Services, liic. is the holder of Ait Carrier Certificate No. 

APMA212C. 

2. On or about April 1, 2006, Ventura Air Services, Inc. operated aircraiil 

identification number N125PT as Flight 387 under Part 135 between Washington, 

DC and Atlantic City, New Jersey. 

3. On or about April 2, 2006, Ventura Air Sei-vices, Inc. operated aircraft 

identification number N125PT as Flight 387 under Part 135 between Atlantic City, 

New Jersey and "Washington, DC. 

and en route operations; 

(4) Navigation and use of air navigation aids appropriat e t o the operation or 

pilo t authorization , including, when applicable , instrument approach 

facilitie s and procedures; 

(5) Air traffi c control procedures, including TFR procedures when applicable ; 

(6) Meteorology in general, including th e principle s of fronta l ^Jysteiiis. 

icing , fog, thunderstorms, and wind."5hfiar, and, if appropriat e for the 

operation of the certificat e holder, high altitud e weather; 

(7) Procedures for-

(i) Recognizing and avoiding severe weather situations; 

(ii) Escaping from severe weather situations, in case of inadvertent 

encounter.";, including low-altitude windshear (cxcepT. r.hat rotororsxfi; pilots 

are not 

required to be tosted on escaping from low-altitude windshaar); and (iii) 

Operating in or near thunderstorms (including best penetrating altitudes), 

turbulent aj.r (including clear air turbulence), icing, hail, and other 

potentially hazardous meteorological conditions; and 

(8) New equipment, procedure?.';, ov techniques, as appropriate. 

S SI. 13 Careless or recJcleea opeiration. 

(a) Alrcraifc operations for th e purpos e o f ai r navlgacicn . Mo person may 

operate an aircraft: in a careless or reckless manner so a s to endanger the 

life or property of another. 

' On December 18, 2009, Complainant tiled its brief in support of its appeal; 

Complainant refers to that brief for a discussion of the ALJ'a findings and 

the Complainant's argument in support of its appeal. 

2 

jooia ZNaasAiai csoiCiJi'Te TVJ M:S O OTO2/9S/TO 
01/27/201 0 17:0 1 FAX 2024935142 FAA * DMS @]003/012 

4. On or about April 13, 2006, Ventura Air Services, Inc. operated aircraft 

identification number N855PT as Flight 396 under Part 135 between Fort 

Lauderdale, i'lorida and Farmingdale, New York. 

5. On each of the flights described above, Ventura Air Services, Inc. used a pilot, 

Nicholas Tarascio, under Part 135, althougli, since the beginning of the I2ih 

calendar month before that service, that pilot had not passed a written or oral tesi» 

given by the Administrator or an authorized check pilot, on the pilot's knowledge of 

specified areas. 

6. In using a pilot whose qualifications or competency could not be ascertained, on 

flights under Part 135, Ventura Air Services, Inc. operated the arcraft described 

above in a careless manner, endangering the lives or property of others. 

Complainant further alleged that Respondent violated 14 C.F.R §§135.293(a) and 

91.13(a). Complainant proposed a civil penalty of $ 15,000 

In Respondent's Answer to the Complaint, Respondent: 

Admitted paragraphs 1 through 4; 

• Admitted in paragraph 5 that it used a pilot, Nicholas Tarascio, under Part 135, but 

denied the remainder; 

• Denied paragraph 6; 

• Denied violating the Federal Aviation Regulations. 

• 

COOia ZNHHHMHl C«0iCiJtT6 XVd St^SO OTOJ/flJ/TO 
01/27/201 0 17:0 1 FAX 2024935142 FAA •* DMS @1004/012 

IT Issues 

1. Whether the ALJ's finding there was a violation of 14 C.F.R §§135.293(a)(l) and (4)-(8) 

is supported by, and in accordance with, the reliable, probative, and substantial evidence 

contained in the record? 

2. Whether the AU correctly admitted the testimony of the FAA's expert witness? 

in Argument 

1- "llic AU' S finding there was a violation of 14 C.F.R 66135.293ra¥n and (4)-(i\ is 

supported by. and in accordance with, the reliable, probative, and substantial evidence contained 

in the record. 

In his written initial decision,, the AIJ correctly found that Respondent violated 14 C.F.R 

§§135.293(a)(l) and (4H8) when Respondent used a pilot as second-in-command (STC) on three 

flights in April 2006 uiicn that pilot had not passed the required knowledge test, Decision at 13. 

Specifically, Respondent violated 14 C.F.R §§135.293(a)(l) and (4)-(8) because it had used a 

pilot although since the beginning of the l2th calendar month before that service, that pilot had 

not passed a written or oral test, given by the Administrator or an authorized check piloi^, on that 

pilot's knowledge in certain prescribed areas. 

In support of his decision, the ALJ made the following findings and observations; In 

February 2005, Respondent was an applicant under 14 C.F.R. Part 135 conducting proving tests, 

and was going to use Nicholas Tarascio as a pilot in proving tests. Decision at 3, note 2. On 

February 3, 2005, Mr. Tarascio completed a 14 C.F.R. section 135.293(a) and (b) test. Decision 

at 3. A FAA Form 8410-3 dated February 3, 2005 documented the completion of the test 

t-OOia 2N3y3MHl C80iCiZH6 XVd ST: SO OTOJ/fiZ/TO 
01/27/201 0 17:0 2 FAX 2024935142 FAA * DMS @005/01 2 

(fc'xhibit C-1). Mr. Tarascio then completed another test in March 2005, Decision at 4. 

However, Respondent failed to ensure that all testing had been conducted in March 2005, 

specifically as prescribed by 14 C.F.R. §135.293(a)(I) and (4)-(8). Decision at 4-5. Although 

testing may have been accomplished with respect to 14 C.F.R. §135.293(a)(2)-(3), Mr. Tarascio's 

14 C.F.R. §135-293(a)(I) and (4)-(8) test was not accomplished in March 2005, and was not 

accomplished fi-om Fcbtnary 3, 2005 until May 8, 2006, or about a month qfler the flights iix 

question. Decision at 3-5. 

14 C.l-.R. § 135.293(a) is not void for vaauencss. 

Resi>ondent raises for the first time on appeal its assertion that 14 C.F.R. § 135.293(a) is 

void for vagueness. Under the vagueness doctrine, a law or regolation that does not fairly inform 

an ordinary person of what is commanded or prohibited or which encourages arbitrary and 

discriminatory enforcement is unconstitutional and violative of due process. In the Matter of 

American Airiines. FAA Order No. 1999-1 at 8 (1999). When evaluating a void for vagueness 

challenge to a regulation, a court will require only a reasonable degree of certainly, Jind will 

demand less precision for a regulation governing business, rather than First Amendment, 

activities, Throckmorton v. National Transportation Safety Board, 963 F.2d 441, 445 (D.C. Cir. 

1992V In the Matter of Trana States Airiines. Inc.. FAA Order No. 2005-2 at 9-] 0 (2005). 

The regulaioiy requirements are clear. Under 14 C.F.R. § 135.293(a), a certificate holder 

may not use a pilot unless since the beginning of the 12th calendar month before that service, that 

pilot has passed a written or oral test on thai pilot's knowledge. Compliance with this 

requirement is modified under 14 C.F.R. § 135.301(a) - if a crewmcmber who is required to take 

fiOOia ZMHH3M31 C^OLCLZfJ^ XVJ fit;SO 0T03/9Z/T0 
01/27/201 0 17:0 2 FAX 2024935142 FAA •» DMS 0006/01 2 

a required lest or flight check, completes the test or flight check in the calendar month before or 

after the calendar month in which it is required, that crewraembcr is considered to have 

completed the test or check in the calendar month in which it is required. 

The violation occurred in April 2006 when Respondent used an unqualified pilot. To 

determine whether there was compliance with 14 C.F.R §U5.293(a), one needed to look back 

firom April 2006 to find whether since the beginning oF the 12th calendar month before that 

service, that pilot had passed a written or oral test on that pilot's knowledge - that would be 

April 2005. However, considering the April 2006 flights to be witliin the "grace" month uiidei14 CF.R. §135.301 (a), then the lookback period goes to March 2005. As discussed above, Mr. 

Tarascio had as of March 2005 only passed a knowledge test in 14 C.F.R §13S.293(a)(2)-(3), not 

14 C.F.R § 135.293(a)(1) and (4)-(8). 

At the hearing, Respondent attempted to convince the ALJ that it was confijsing to 

determine whether or not Mr. Tarascio had passed a complete 14 C.F'.R § 135.293(a) knowledge 

test since March 2005 before being used in service in April 2006. Respondent sowed confiision 

by attempting to link the March 2005 test witli an earlier test in February 2005. In support of its 

defense and its argument on appeal. Respondent points not to the regulation at issue, but to FAA 

guidance. 

In February 2005, Respondent was an applicant under 14 C.F.R, part 135 EUid was 

conducting proving tests. Respondent was going to use Mr. Tarascio a-i a pilot in proving tests. 

Any proving test or flight using Mr. Tarascio could not have been conducted properly unless 

conducted under the requirements of 14 C.F.R, part 135, and unless Mr, Tarascio had completed 

the appropriate initial or recuncnt training phase of the training program appropriate to the type 

90oig) ZManaMai csoicizi'Te T H sf-eo OTOZ/8Z/IO 
01/27/201 0 17:0 2 FAX 2024935142 FAA •> DMS 0007/01 2 

of operation in which he was to serve since the begimiing of the 12*'' calendar month before that 

service.'' 

This would imply that at least initial training had been completed by February 3, 2005. 

On that date Mr. Tarascio completed a 14 C.F.R. §l35.293(a) and (b) test. Ir. 414:10-16. See 

Exhibit C-1, which is a completed test form dated February 3, 2005. A test would not have been 

given unless all training was completed. Respondent's training program provides that a 

qualification segment (i.e. testing or checking) is not to be entered into unless all training is 

completed. Tr. 410:21-411:7; 417:17-418:5. Respondent's iraming manual (ExhibU R-9) 

provides that the checking qualification module is completed when the pilot passes tlie written 

and oral tests under 14 C.F.R §135.293(a) and (b). However, it also provides that the 

prerequi.site for enrollment in that module is that the pilot must have completed all the 

curriculum segments as listed for the initial new hire curriculum. Tr. 431:4-14. As a result, this 

means that when Mr. Tarascio took the checking qualification module and completed it in 

February 2005, he must have completed the initial new hire cturiculum in February 2005. Tr, 

432:3-10. 

As a result of initial training being completed in February 2005, then recurrent training 

was completed in March 2005. This is also supported by the record. 

Respondent proffered a response from FAA chief counsel lo a request Irom Respondent 

for a legal interpretation (Exhibit R-7). However, the premise set forth by Respondent's counsel 

^ Under 14 C.F.R. § 119.33, "all proving rests must be conducted under tlie appropriate operating and mainienancc 

requirements of part 121 or 135 of this chapter that would apply if the applicant were fully certificated." Further, 

under 14 C.F.R. §135.1(aX7), 14C,P,R. part 135 "prescribes rules governing...[e]ach persaxi wiio is an applicant for 

an Air Carrier Certificate or an Operating Certificate ur>der 119 oPthis chapter, when conducting proving tests." 

Under 14 CF.R. §135.34.1, "no certificate holder may xise a person, nor may any person serve, as a r-rcwmernber in 

operations under this part unless that crtwmcmber has completed the appropriate initial or recurrent training phase of 

iOOgl ZN3M3Mai C80iCZZt'T6 YVJ eT:SO 010Z/9Z/T0 
01/27/201 0 17:0 2 FAX 2024935142 FAA * DMS 0008/01 2 

for that interpretation was that a pilot had completed initial training in February 2005, along 

with a 14 C.F.R. §135.293 airmen competency check; and completed recurrent training in March 

2005, as required by 14 C.F.R. §§135.293 and 135.297. 

Further, Respondent's EHrector of Operations Gould Ryder asserted in an .affidavii 

Supporting Respondent's Dismissal Motion (filed before the hearing) that initial (raining '^vas 

completed in February 2005, and recurrent training was completed in March 2005. Tr. 415:11-

23. 

Tn April 2005 the FAA had put Respondent on notice thai the facility conducting the 

March 2005 training and testing was not qualified to do so under 14 C.F.R. § 135.293(a)(1) and 

(4)-(8). Exhibit C-4. There is no dispute that this notice was received by Respondent, and there 

is no evidence establishing that Respondent questioned the FAA's April 2005 notice in 2005 or 

in 2006, when the violations were discovered. Indeed, in May 2006 Respondent had Mr. 

Tarascio be tested and undergo "requalification" as a result of Mr. Tarascio having been 

unqualified. See exhibit C-2, p. 2, and Tr. 76:2-19. There is no evidence that Respondent in 

2006 challenged the need for requalification. 

Mr. Tarascio's 14 C.F.R. § 135.293(a)(1) and (4)-(8) test was not accomplished in March 

2005, and was not accomplished from February 3, 2005 until May 8, 2006, or about \i month 

after the flights in question. Respondent's own records demonstrate the accomplishment of the 

knowledge tests on those dates (sec Exhibit C-1), and also demonstrate that Respondent was 

tracking the status of when these tests were accomplished (sec Exhibit C-2). On the first page of 

Exhibit C-2, Respondent tracked the accomplishment of Mr. Tarascio's 14 C.F.R. §135,293(a)(l) 

die traininn prosram appropriate to the type of operation in which the crcwmeinber is to seive since tlie bce.innirifl of 

the 12*' calendar month before that service.'' 

8 

gOOia Z>J3a3M3T CfiOlCiEVTB IV£ 81:3 0 OTOJ/fiE/TO 
01/27/201 0 17:0 2 FAX 2024935142 FAA + DMS 0009/01 2 

and (4)-(8) tests on these dales - December 8, 2004; Februaty 3, 2005; and May 8, 2006. What 

is remaricable is that Respondent did not record March 2005. 

As Respondent was having Mr. Tarascio be trained, and tested, for proving Tun,s, and later 

for aircraft differences training (see Exhibit C-1), and also tracking his testing status (sec Hxhibii 

C-2), it is disingenuous for Respondent to now maintain that it was not fairly informed that Mr. 

Tarascio was required since the beginning of the 12th calendar month before a service to have 

had passed a written or oral test on his knowledge, Indeed, he had taken such tests before, and 

the lest in March 2005 was inadequate in that it only covered tlic aircraft-specific subjects under 

14 C.F,R, §135.293(a)(2)-(3) that he experienced as part of aircraft differences training. 

The Agency's published guidance does not provide for testing to be completed in a longer 

timeframe than that provided by 14 CJ-\R. §135.293(a) and 14 CF.R. §135.301(a). There is no 

provision in FAA Order 8400.10, the inspectors' guidance, excusing compliance with the 

regulatory requirements of 14 C.F.R. § 135.293(a), That guidance does not provide a relaxation 

of the regulatory testing requirements. Further, there is nothing in the FAA chief counsel's 

interpretation which modifies rcgtilatory requiremenls. That opinion expressly provides that: "A 

erewmember who has not completed all recurrent training or checking requirements in die base 

month may be scheduled and continue to serve in revenue service during the remainder of the 

eligibility period (Lc, until the end of the grace month), but may not serve after tlie end of the 

grace month." Exhibit R-7, p. 2. As a result, havmg passed a complete 14 C.F.R. §135.293(a) 

knowledge test in February 2005, Respondent could have lawfidly used Mr. Tarascio in service 

through the grace month of March 2006, but not thereafter. 

60021 ZK3HHM31 C60Z,Ci2t'T6 XVi 91 = 20 OTOZ/dJ/TO 
01/27/201 0 17:0 2 FAX 2024935142 FAA * DMS glOIO/01 2 

Finally, the record does not show Mr. Tarascio was a person responsible within 

Respondent Ventura Ait Services, inc. for scheduling training and testing events for pilots in 

accordance with regulatory requirements. Mr. Tarascio's testimony simply contradicted the 

assertions of Respondent's Director of Operations Gould Ryder in his alTidavil. No one else 

from the company testified. There is no evidence that Respondent Ventura Air Services, Inc. 

"read" the various FAA guidance documents in a manner that relaxed regulatory requirements or 

that made the regulation vague. 

As a result, 14 C.F.R. §13S.293(a) fairly informed Respondent of what was commanded 

with a reasonable degree of certainty, and did not encourage arbitrary and discriminatory 

enforcement, and thus was not violative of due process. 

2. The ALJ correctly admitted the testimony of the FAA's expert witness. 

Under 14 C.F.R § 13.222 (Evidence), a "party is entitled to present the party's case or 

defense by oral, docimxentaiy, or demonstrative evidence, to submit rebuttal evidence, and to 

conduct any cross-examination that may be required for a fiill and true disclosure of the facts." 

Further, a "party may introduce any oral, documentary, or demonstrative evidence in sujjport of 

the party's case or defense. The administrative law judge shall admit any oral, docimicntary, or 

demonstrative evidence introduced by a party but shall cxchidc irtclcvant, immaterial, or imduly 

repetitious evidence." 

ITic ALJ stated, with respect to expert witnesses for the FAA, Michael Sees, and for 

Respondent, Richard Peck: "Well Mr. Sees, I want to thank you for coming all this v,ray and 

hying to help us. As I told Mr. Peck, iho reason why I am hera is that T really wanted lo hear 

10 

OTOia ZMaH3M31 tiOmiZfTQ IVd 91 ^SO 0T0Z/93/T0 
01/27/2010 17:02 FAX 2024935142 FAA * DMS gl011/012 

from you people because I regard the expert testimony as the clue to solving this riddle or at least 

putting this riddle to bed, so thank you very much. You have been a great help..." Tr, 500:4-12. 

Mr. Sees' testimony was properly admitted as it was relevant, matertEiI,, and not unduly 

repetitious, and assisted the ALT to understand the evidence and to determine the facts in issue. 

See Rule 702 of the Federal Rules of Evidence. 

Moreover, even in an analysis of the facts without respect to any expert opinion 

testimony, the regulatory requirement for Respondent was clear. There was no evidence that 

Respondent was confiised by the regulatory requirement that, in itsing Mr. Tarascio in service, 

Mr. Tarascio was to have passed a written or oral test, given by tlie Administrator or an 

authorized check pilot, on his knowledge in certain prescribed areas; and that Mr. Tarascio was 

to have passed that knowledge test some time since the beginning of tho 12th calendar month 

before that service. Respondent's confusing presentation about a modular approach to training 

was irrelevant to the issue of whether Mr. Tarascio timely passed a knowledge test, and was 

merely an ex post facto rationalization that had no foundation in the way that Respondent 

behaved, contemporaneous with the events at issue, in carrying out its regulatory responsibilities 

as a certificated air carrier. 

11 

TTOia ZNg>iHM31 PSOiCiJl'i e XVH it : so 0T0Z/8Z/T0 
01/27/201 0 17:0 3 FAX 2024935142 FAA * DMS @1012/012 

WHEREFORE, the Complainant respectfully requests thai that Respondent's appeal be 

dismissed ki its entirety and that the Administrator order Respondent violated 14 CF.R. 

§§91.13(a) and 135.293(1) and (4)-(8), and assess $15,000 asacivil penalty. 

Respectfully submitted, 

ALRED R. JOHNSON, JR. 

Regional Counsel 

iristjan L 

Attorney 

Tel: 718,553. 

Fax; 718.995.5699 

CERTinCATE OF SRRVICK 

I hereby certify that on this date copies of the Reply Brief were sent by Federal Express to the 

following: 

FAA Decisionmaker 

Hearing Docket 

Federal Aviation Administration 

600 Independence Avenue, S.W. 

Washington, D.C. 20591 

Attn: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building - Suite 2W1000 

Tel; 202.385.8253 

Fax: 202.493.5020 

Gregoty Winion, Esq. 

Aviation T.aw Experts, LLC 

I Research Court, Suite 450 

Rockville, MD 20850 

Tel: 301.294.8550 

Fax: 301.294.2525 

l^^^:to/ o 

msuan Lewcn 

Attorney 

12 

ZTOia ZM3HaM31 C«0iCiJl'T6 XVd iT:SO 0T03/fl3/T0