UNITED STATES DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION WASHINGTON, DC In the Matter of: VENTURA AIR SERVICES, INC. FAA OrderNo. 2012-12 DocketNo. CP08EA0008 FDMS No. FAA-2008-0505 1

Served: November 1, 2012 DECISION AND ORDER2 Administrative Law Judge ("ALJ") Isaac D. Benkin issued a written initial decision finding that Ventura Air Services ("Ventura") violated 14 C.F.R. §§ 135.293(a)(1) and (4)-(8),3 byusing a pilot on three revenue flights when the pilothad nottaken a written or oral test in the subjects specified in those provisions in a timely fashion. The ALJ assessed a nominal $1.00 civil penalty.4 The FAA and Ventura filed cross-appeals, On appeal, Ventura arguedthat (1) the ALI's findings offact were not supportedby a preponderance ofthe evidence and each conclusion of law was not made in accordance with applicable law, precedent andpolicy, (2) Section 135.293(a) is void for vagueness, and (c) the ALJ erred in admitting the FAA'srebuttal witness's expert testimony. The FAA, on appeal, argued that the ALJ should have found that Ventura also

1Generally, materials filed in the FAA Hearing Docket (except for materials filed in security cases) are also available for viewing at http://www.regulations.gov. 14 C.P.R.§ 13.210(e)(l).

2 The Administrator's civil penalty decisions, along with indexes ofthe decisions, the rules of practice, and other information, are available on the h\ternet at the following address: wwwjaa.gov!about/office

_orglheadquarters _offices/age/pol_acijudication/AGC400/Civil_Penalty!. See 14 C.P.R. § 13.210(e)(2). In addition, Thomson Reuters/West Publishing publishes Federal Aviation Decisions. Finally, the decisions are available through LEXIS (TRANS library) and WestLaw (FTRANFAA database). For additional information, see the Web site.

3 See Appendix I for the full text ofSections 135.293(a)(l) and (4)-(8).

4 A two-day hearing was held on April 7-8, 2009.violated Section 91.13, andthat a $15,000 civil penalty is consistent with agency policy as applied to the facts ofthis case. As explained in this decision, Ventura's appeal is denied. This decision holds that the preponderance ofthe evidence supports the ALJ's decision thatVenturaused a pilot who was not current onhis Sections 135.293(a)(l) and (4)-(8) testing. Further, Ventura's arguments regarding the admission ofthe expert testimony ofF AA Inspector Roy Michael Sees and that Section 135.293 should be found void for vagueness are rejected. The FAA's cross-appeal is granted. A $15,000 civil penalty is assessed. I. Background Pilots who serve as required crewmembers in Part 135 operations are required under 14 C.P.R. §§ 135.293(a)(l)-(8)5 to pass initial andrecurrent oral or written tests in eight specified

areas. Sections 135.293(a)(l) and (4)-(8) require oralorwrittentesting ofa pilot'snon-aircraftspecific knowledge, including pertinent regulations, provisions ofthe carrier's operations specifications and manual, navigation, air traffic control procedures, and meteorology. Sections 

### ' 135.293(a)(2)-(3) require written or oral testing ofa pilot's knowledge about theparticular type of aircraftthat the pilotwill operate for the air carrier. In addition, under Section 135.293(b), pilots are requiredto take competency tests, commonlyreferred to as "flight checks" in the aircraft or class or type ofaircraft thatthey will fly for the operator. 6 Regarding the timing ofthese oral orwritten tests and flight checks, Section 135.293 provides that "[n]o certificate holder may use a pilot, nor may any person serve as a pilot, unless since the beginning ofthe 1 

## z!h calendarmonthbefore that service, that pilot has passed" a written

5 See Appendix I for the full text ofSection. 135.29'3(a).

6 See Appendix II for the full text ofSection 135.293(b). 2or oral test and a flight check. This requirement mustberead in conjunction with Section 135.30l(a), which provides as follows: Ifa crewmember who is requiredto take a test or a flight check underthis part, completes the test or flight check in the calendarmonth before or afterthe calendar month in which it is required, that crewmember is consideredto have completedthe test or check in the calendar month in which it is required. 14 C.P.R.§ 135.30l(a). For example, under Sections 135.293(a) and 135.301(a), ifa pilot passed a written or oral test on all the areas covered by Section 135.293(a) in February ofYear I, the pilot could satisfy Section 135.293(a)'s recurrent oral or writtentest requirement by completing a knowledge test

no later than the end ofthe "grace month," March ofYear 2. (See Tr. 39, 42.) In this example, Februarywould be the "base month" and, under Section 135.301, ifthe pilot**comple~ed** the recurrent testing duringthe following January, February, or March ofYear 2, the testing would be considered as accomplished in February ofYear 2. (Tr. 42.) This 3-monthperiod, comprised ofthe base month, the month before and the month afterthe base month ofYear 2, is referred to

as the "eligibilityperiod." (See Respondent's Exhibit I at I (FAA OrderNo. 8400.10,**~** 603); Letter by FAA Assistant ChiefCounsel RebeccaMacPhersonto Gregory Winton, Esq., dated

I September 6, 2006, Respondent's Exhibit 7 at 2.) FAA Inspector Mark Rogers testified atthe hearing that itis common for Part 135 operators to establish separatebase months for the Sections 135.293(a)(l) and (4)-(8) (nonaircraft specific) portions ofthe oral or writtentest, the Sections 135.293(a)(2) and (3) (aircraftspecific) portions ofthe oral or writtentest, and the Section 135.293(b) flight check. (Tr. 118- 119.) In 2004, Ventura, the holder ofan air carrier certificate, hiredNicholas Tarascio to serve

as second in command ofa Lear 25 and Lear 55. (Tr. 176-177.) Before that, Tarascio worked

3for Air East Management, another company operating under Part 135, as second in command flying the same aircraft. Complainant's Exhibit 1, Tarascio's airman competency check records, FAA Form 8410-3, showed that after Tarascio was hired by Ventura, he took oral or written tests and flight checks under Section 135.293 as summarized inthe following chart: DATE

. SUBJECT- AIRCRAFT INSPECTOR! 

### § 135.293 CHECKAIRMAN 12/08/2004 (a)(l) & (4)-(8) Not Applicable Inspector Mauro 02/03/2005 (a) & (b) Lear25D Inspector Fraher 03/15/2005 (a)(2)-(3) & (b) Lear 35A Check Airman Boyd atSIMCOM 03/16/2005 Lear 25 differences7 (illegible signature) atSIMCOM 04/18/2005 Lear 55 differences Check Airman ' Santiago at SIMCOM 05/08/2006 (a)(l) & (4)-(8) Not Applicable InspectorRogers

Accordingto Ventura's flight logs, Tarascio served as second in command on revenue flights underPart 135 onApril 1 and 2, 2006 in a Lear25 and on April 13, 2006, in a Lear 55. (Complainant's Exhibits 5 and 6; Tr. 88-90.) The next month, in May 2006, Ventura sent Tarascio to Inspector Rogers, who was Ventura's principal operations inspector (POI) at the time, for the oral or written test required under Sections 135.293(a)(l) and (4)-(8). 8 (Tr. 29-30.)

7Differences training is defined as "thetraining required for crewmembers who have qualified and served on a particulartype aircraft, when the Administrator finds differences training is necessary before a crewmember serves in the same capacity on a particular variation ofthat aircraft." 14 C.F.R. § 135.321(a)( 4). Tarascio testified thatVenturawas goingto operate a Lear 25, not a Lear 35, aircraft. (Tr. 190.) Hence, after his Lear 35 simulator recurrenttraining and testing, he took differences training in the Lear 25 and later the Lear 55.

8 Because Rogers was not rated in the Lear, he could not give the Sections 135.293(a)(2) and (3) portions ofthe oral or written test. (Tr. 31-32, 37-38.) 

### 4Rogers testifiedthat before administering the test, he reviewed Tarascio's training records and did notnotice anything "abnormal."' (Tr., 38.) However, he noticed "an area of discontinuity" inthe test records because he could find no records to showthat Tarascio had completed an oral orwritten test under Sections 135.293(a)(l) and (4)-(8) since he was tested by Inspector Susan Fraher inFebruary 2005, approximately 15 months earlier. (Tr. 29, 38-39.) Rogers testified that he asked Ventura's director ofoperations, Gould Ryder, whether there were any records to showthat Tarascio had completed the non-aircraft specific knowledge test by the end ofMarch 2006, but Ryder never provided him with any additional documentation on this issue. (Tr. 44.) After giving the test to Tarascio on May 8, 2006, Rogers wrote in the "Remarks" section ofthe FAAForm 8400-3, that a "newbase month [is] established for 135.293(a)(l), (4-8) only." (Complainant's Exhibit 1page 6; Tr. 64.) The FAA argued that Tarascio was overdue for the non-aircraft specific portions ofthe oral or written test required under Sections 135.293(a)(l) and (4)-(8) when he flew as second in command on April 1, 2, and 13, 2006. Rogers testified at the hearing that because Tarascio completed the non-aircraft specific test with Inspector Fraher on February 3, 2005, he was required to complete those portions ofthe test again no later than the last day ofMarch 2006 under Sections 135.293(a)(l) and (4)-(8) and 135.301. (Tr. 39, 43.) However, Rogers testified, he found no evidence in the official testrecords that Tarascio had completed a recurrent test as required by Sections 135.293(a)(l) and (4)-(8) priorto the three flights in April2006. (Tr. 39, 44, 47, 75, 113.)

9 Rogers testified, based upon his review ofthe records, that Tarascio completed his initial training and Section 135.293(a)(1)-(8) test in February 2005, and took recurrent training and a Sections 135.293(a)(2)-(3) test pertainingto the Lear in the simulator at SIMCOM in March 2005. (Tr. 154-155.)Ventura argued that Tarascio was current on his Sections 135.293(a)(l) and (4)-(8) testing when he served on the revenue flights in Apri12006 because, in Ventura's view, Tarascio's testing date should have been deemed to be in March, not February. Ventura's argumentwas based on its interpretation ofguidance inFAA OrderNo. 8400.10. A review of training programs implemented by Part 135 carriers generally and Ventura's training program 10 in particular is necessaryto understand Ventura's arguments. Crewmernber training requirements are set forth in 14 C.P.R.§§ 135.321-135.353. Section 135.343 provides that: No certificate holder may use a person, nor may anyperson serve, as a crewmember in operations underthis part unless that crewmember has completed the appropriate initial orrecurrenttraining phase ofthe training program appropriate to the type ofoperation in whichthe crewmember is to serve since the beginning ofthe 121 h calendar month before that service. Section 135.323(b) provides a "grace month" for training, similar to Section 135.301 's provision regarding oral or writtentests and flight checks. 14 C.F.R § 135.323(b). The FAA's rebuttal witness, Inspector Roy Sees, 11 whom the ALI found qualified as an expert in pilottraining12 and testing, (Tr. 398-399),**te~tified** abouttraining programs. He testified that a carrier'spilot training program" is divided into six categories, including initial

newhire andrecurrent training. Each category is divided into curriculums for each required

10 A certificate holder must obtain initial and·final FAA approval ofa training program before implementing it. 14 C.F.R. §§ 135.323(a)(l) and 135.325. FAA Inspector Sees testified that operators' training curriculums must be approved by the FAA. (Tr. 448-449.)

11 Sees is as an instructor atthe FAA Academy atthe Mike Monroney Aeronautical Center in Oklahoma City, Oklahoma. (Tr. 388.) Priorto his assignment atthe FAA Academy, he served as the supervisor ofthe Scottsdale, Arizona Flight Standards District Office (FSDO). He testified that he has taught all ofthe FAAAcademy courses, butprimarilythose related to air carriertraining programs, pilot testing, proving flights and air carrier certification. (Tr. 388-391.)

13 See Appendix III for definitions ofthe following terms as set forth in FAA Order 8400.10: training program, modulartraining, categories oftraining, curriculum, curriculum segment, training module, element, element, and checking and qualification module. 6crewmember for a particulartype aircraft operated by that operator. 14 Curriculums are divided I into segments, including basic indoctrination, aircraft ground, aircraft flight, and qualification segments. (Tr. 404.) The qualification segment is the final segment ofany curriculum. (Tr. 431.) Curriculum segments are divided into modules," which are composed ofelements and events." Section 8 ofVentura's training manual describes the Qualification Segment for Ventura pilots. (Respondent's Exhibit 9.) Completion "ofall the curriculum segments as listed for the initial newhire curriculum" is aprerequisite for enrolling inthe qualification segment. (Respondent's Exhibit 9 at I.) The first module in Ventura's Qualification Segment is entitled "CM-1 Competency Check 135.293," (Respondent's Exhibit 9 at 2), which includes the testing elements and checking events ofSections 135.293(a) and (b) respectively. (Respondent's Exhibit 9 at 2-4.) Accordingto Ventura's training manual, Ventura may use a "reduced initial newhire training curriculum" to train flight deck crewmembers who have "properly documented Part 135 employment experience and who are current and qualified on the same equipment and duty position." (Respondent's Exhibit 2 at 1). The reduced initial new hire curriculum for a pilot serving as second in command, according to the manual excerpt introduced at the hearing, requires the completion ofthe following curriculwh sbgments: Basic Indoctrination; General Emergency; Aircraft Ground; Aircraft Flight; and Qualification. (Respondent's Exhibit 2 at 2.)

14 "Each certificate holder must prepare and keep current a written training program curriculum for eachtype ofaircraft for each crewmember required for thattype aircraft." 14 C.F.R. § 135.327(a). Each curriculum must include ground and flight training.

15 For example, Sees testified, an operator's ground training curriculum segment may include training modules regarding aircraft electrical and fuel systems. (Tr. 404.)

16 Respondent's Exhibit 7 at 1 . 7Ventura's training manual also stated that for the reduced initial newhire training curriculum, "Ground and Flight Training shall consist ofthe Operator Specific modules (BI0-1 through BI0-3) ofthe Basic Indoctrination Curriculum andthe RecurrentTraining Modules ofother curriculurn.s as appropriate." (Respondent's Exhibit 2 at 1, emphasis added.) Ventura's witnesses, Tarascio and Richard Peck, whomthe ALJ found qualified as an expert in air carrier operations, 17 testified that Venturahired Tarascio with credit for his past training and experience at AirEast Management, and usedthe reduced initial new hire curriculum to trainhim. (Tr. 180-181, 288-291.) Pecktestifiedthat operators usually provide the following in-house training: Section 135.293(a)(l) and (4)-(8) training, including weight and balance, logging dutytimes, filing flight plans, and first aid. He explainedthat operators usual)y sendtheir pilots to a Part 142 training center classroom for aircraft-specific Sections 135.293(a)(2) and (3) training. He testifiedthat the Part 142 training center classroom has "all kinds oftraining aids 18 and they teach the pilot howthe hydraulics work, the electrical systems, the air conditioning, and so on." (Tr. 275.) He i '\ testifiedthat operators also provide flight training atthe Part 142 training center, some ofwhich is taught in a classroom and some ofwhich is taught in a simulator. 19 (Tr. 275- 276.)

17 Richard Peck, the safety officer and compliance specialist for Universal Jet Aviation and the assistant manager for the Fort Lauderdale International Airport, testified for Ventura as an expert in air carrier operations. (Respondent's Exhibit 8; Tr. 252, 254-255.) Since 2005, Peck has been a consultant for the law firm representing Ventura in this litigation. In 2005, Peck retired from the FAA, after 33 years ofemployment, including serving as the FAA aircraft program manager for Continental Express from 1998-2005, FAA POI for Champlain Enterprises from 1994-1998, and FAA Operations Unit supervisor for the Albany, New York FSDO from 1989-1994. (Respondent's Exhibit 8; Tr. 249-250.) Peck's resume indicated that since 2005, he was also the assistant director ofoperations for Ventura but no mention ofthis position was made in his testimony atthe hearing. He did not claim to testify based upon personal knowledge ofthe events. 18 See 14 C.P.R.§ 61.l(b)(7) for the definition of"flighttraining device."

19 See 14 C.P.R.§ 6l.l(b)(5)for the definition of"flight simulator." 

### 8Under its operations specifications datedMarch 3, 2005, Venturawas authorized to send its pilots to SIMCOM, a Part 142 training facility located in Orlando, Florida, for certaintraining and checking in the LR-35 (Lear 35) series approved simulator, as well as for differences training for the LR-25 and LR-55 (Lear 25 and 55). 20 (Complainant's Exhibit 4, Tr. 56, 80-83.) In a letter dated Aprill3, 2005, to Ryder, Inspector Mauro, Ventura's POI at the time, wrote that Venturawas authorizedto use SIMCOM to.conduct all training and checking in LR-35 series ' approved simulator with differences training for the LR-25 and LR-55, except for Sections 135.293(a)(l) and (4)-(8) testing. (Complainant's Exhibit 4 at 1.) Ventura introduced a portion ofthe Air Carrier Operations Inspector's Handbook, FAA Order 8400.10, in effect at the time. Paragraph 603 ofthis order, provided:" A. Training/CheckingMonth. The training/checking month is that calendar month during which a flight crewmember is due to receive recurrent training

.... (1) Designating the Training/Checking Month. When a crewmember completes an initial, transition, upgrade, or requalification training program within a 3-calendar monthperiod, the month inwhichthe qualification curriculum segment is completed is then consideredto bethat crewmember's training/checking month. Ifthe training has been completed withinthe 3-monthperiod, the operator may make a single record ofthe entire curriculum withoutnoting when individual events occurred. Subsequent scheduling ofrecurrenttraining may then be based on the training/checking month

..... (Respondent's Exhibit 1.) Based onthis guidance, Pecktestified that ifa pilot completed the Sections 135.293(a)(1) and (4)-(8) test onJanuary 20, the Sections 135.293(a)(2) and (3) test on January 25, and the

20 Ventura's operations specifications (A031), dated March 3, 2005, provided that SIMCOM was an approved training provider for pilot initial, recurrent, transition, upgrade, requalification and differences training courses in the LR-25 and LR-55. (Complainant's Exhibit 4 at 6.) Ventura had not operated a Lear 25 previously, and therefore, it is likely that it had not had authority to use SIMCOM for Lear 25 training priorto the approval ofthese operations specifications.

21 Peck testified that he compared the pertinent language in the current order, FAA Order No. 8900.1 with the now superceded FAA OrderNo. 8400:10, and found thatthe pertinent language is practically identical in the two orders. (Tr. 261.) · 9Section 135.293(b) flight test onFebruary 4, the pilot'sbase month for recurrent testing for the entire Section 135.293 test/check wouldbe February because the pilot completedthe checking module in February within a 3-month period. (Tr. 263; see Tr. 277.) Tarascio testified that he took the oral test and check ride with Inspector Fraher on February 3, 2005, after he completed the company-specific basic indoctrination training. (Tr. 181-182.) Atthatpoint, he testified, he had not completed his reduced initial new hire training program because he needed to take simulator training,and checking at SIMCOM. (Tr. 188-189.) According to Peck, on February 3, 2005, Tarascio was only qualified to take the Sections 135.293(a)(l) and (4)-(8) portion ofthe oral or written test because he had not taken the training at SIMCOM. Thus, in Peck's view, Tarascio was not qualified to take the Sections 135.293(a)(2) and (3) oral or written test orthe Section 135.293(b) flight checkthat Fraher administered to Tarascio onthat date. (Tr. 282.) According to a SIMCOM certificate introduced by the FAA, Tarascio completed a "Specialty Curriculum Part 135 Lear 35 Recurrent Training course with [Lear]25 differences" at SIMCOM in March 2005. (Complainant's Exhibit 3, Tr. 80-84.) Ventura maintains that this recurrent training course that Tarascio took satisfied a requirement in Ventura's reduced initial

newhire training program. (Tr. 226, 245-246.) Consequently, according to Ventura's witnesses, Tarascio completedthe Section 135.293 checking module ofhis reducedinitialnew-hire training program in March 2005- not in February 2005. (Tr. 225.) Therefore, Ventura maintains, March

was Tarascio's base month.22 Tarascio testified that he "was underthe impression it [the base month for recurring training and checking] was always March based on the training

... in March." (Tr. 197.) He

22 There was no evidence offered to explain whether the April2005 Lear 55 differences testing that Tarascio took at SIMCOM was part ofinitial or recurrent training. 10testified that he did nothave different base months for Sections 135.293(a)(l) and (4)-(8) testing and Sections 135.293(a)(2) and (3) testing. (Tr. 197.) Based uponhis review ofTarascio'srecords, PecktestifiedthatTarascio completed the first phase ofhis in-house training and the first phase ofthe Section 135.293 checking module on February 3, 2005 (Tr. 279-280, 284), and completed the last phase ofhis training and the Section 135.293 checking module at SIMCOM with the flight check onMarch 16. (Tr. 279, 284.) Peck testified thatbecause Tarascio completedthe checking module on March 16, 2005, which was "within the three-month block," March was the base month for recurrent testing, not February [the month ofthe test and checkwith Fraher]. (Tr. 284.) "Andhe is good for the next twelve months which would be March of'06 plus a thirty-day grace period." (Tr. 284-285.) Consequently, according to Peck, Tarascio was eligible to fly until the end ofApril 2006, even though he had not completed the Sections 135.293(a)(l) and (4)-(8) test since February 2005. (Tr. 285.) Thus, in his opinion, Ventura did notviolate Section 135.293(a) when itused Tarascio

as second in command in April2006. (Tr. 288.) He opined further thatVentura "operated the aircraft to the highest standards and at no time did they [Ventura] risk anybody's life or damage property." (Tr. 294-295.) Peck testifiedthat a checkride should not be given before a pilot has completed all ofhis training. (Tr. 281.) However, according to Peck and Tarascio, Tarascio tookthe check with Fraher in February 2005, although he had not completedhis training, because he had to demonstrate to FAA inspectors that he could operate the Lear 25 prior to serving as second in command on "proving runs." (Tr. 198-199, 281-282.) Because Ventura had not operated this aircraft previously, it had to conduct 20 to 25 hours offlights- "proving runs""

- in that aircraft

23 Section 119.33(c) provides in part that "[e]ach applicant for acertificate under this part and each applicant for operations specifications authorizing anew kind ofoperation that is subjectto 11withFAA inspectors onboardto demonstrate that it could operate the Lear 25 safely. (Tr. 131.) Pecktestified thatthe FAA would countthetime spent on a check ride as part ofthe 25 hours of required proving runs. (Tr. 347.) 

### ' On rebuttal, Sees testified, based upon his review ofthe documentary evidence thathad been introduced at the hearing and that was included inthe enforcement package, that Tarascio served as a pilot on flights in April2006 when he had not passed a Sections 135.293(a)(l) and (4)-(8) knowledge test during the previous 13 months [12 months plus the grace month]. He explained: Mr. Tarascio received a complete 135.293(a) and (b) check inFebruary of2005. He received a partial check inMarch of2005. He did not receive the 293(a)(l) and (4)-(8) check at any time afterFebruary of2005 until May of2006. (Tr. 402-403.) Sees testified thatthe Tarascio's checking records showed that Tarascio completed the qualification segment in February 2005, when he successfully completedthe Section 135.293(a) test and the Section 135.293(b) flight check. He testified that Fraher shouldhave checked Tarascio's records and shouldnothave givenhim the Section 135.293(a) test and Section ' 135.293(b) flight check unless Tarascio haci completed all ofhis training. (Tr. 418, 475.) Consequently, he assumedthat Tarascio had completed all ofhis prerequisite training before the check ride on February 3, 2005. (Tr. 443, 476-477.) He testified that "there is no mechanism for reaching backto training and testing that's already been completed and adding or cherry-picking portions ofthat into the next month's training that's being conducted." (Tr. 418.)

§ 121.163 or § 135.145 ofthis chapter shall conductprovingtests as authorized by the Administrator during the application process for authority to conduct operations under part 121 or part 135 ofthis chapter. 14 C.F.R. § 119.33(c). 12II. The Initial Decision The ALJ's factual findings included the following: I. Tarascio was hired by Ventura in 2004. (Initial Decision at 3.) 2. Tarascio had previous experience as a flight crewmember ofa Lear 25. (Initial Decision at 3.) 3. Ventura used its "Reduced Initial NewHire Training Curriculum to train him. (Initial Decision at 3.) 4. Tarascio took a Section 135.293(a)(l) and '(4)-(8) test with Mauro in December 2004. She did not testhim on the aircraft-specific topics covered under Section 135.293(a)(2) and (3). (Initial Decision at 3.) 5. Fraher gave Tarascio a Section 135.293(a) test and Section 135.293(b) check ride in a Lear 25 on February 3, 2005. Fraher found that "Tarascio possessed the knowledge required to pass the test in all respects (at least as a second-in-command.)" (Initial Decision at 3.) 6. The check ride with Fraher on February 3, 2005 was a "proving flight." (Initial Decision at 3.) 7. Tarascio completed a specialty curriculum Part 135 Lear 35 recurrent course and a Lear 25 differences course at SIMCOM in March 2005. While at SIMCOM, Tarascio successfully completed Section 135.293(a)(2) and (3) tests. (Initial Decision at 4.) 8. Tarscio's next Section 135.293(a) testing was in May 8, 2006, when he passed a Section 135.293(a)(l) and (4)-(8) test administered by Rogers. (Initial Decision at 4.) 9. Tarascio flew as first officer for Ventura on flights on April!, 2, and 13, 2006. (Initial Decision at 4-5). The ALJ rejected as "nonsensical"Ventura's argument that Tarascio'stesting under Sections 135.293(a)(l) and(4)-(8) should be considered as having been accomplished in March 2005, rather than in February 2005, whenTarascio actually took that test. (Initial Decision at 12- 13.) Regarding Ventura's theory ofthe case, the ALJ wrote, "Theprincipal problem with the Respondent's theory is that it is not rooted in the language ofthe governing regulation." (Initial Decision at 9.) He wrote:

13

### ' Nothing in the text of§ 135.293(a) supports the notionthat a requirement for an annual test ofa crewmember's Imowledge really allows a crewmemberto be tested once in a period of 15 months. Yet, that is the result we would reach ifthe Respondent's theory were adopted. Ifa crewmember were tested on the first day ofthe year and completed the testing program on March 31, for example, under the Respondent's version ofthe "modular" hypothesis and giving effectto the Respondent's thesis that only the last event in the three-monthtesting-and-training cycle counts in calculating whenthe next trainingand-testing cycle musttake place, the crewmember would notbe due for re-testing until the end ofMarch ofthe following year. Indeed, ifwe combine the Respondent's view of how the "modular" hypothesis is applied with the notion ofa one-month "grace" period, the deadline would extendto the end ofApril ofthe following year. That means that almost 16 months will have elapsed since the crewmember was previously tested on the material set forth in§ 135.293(a). Interpreting a requirement for "annual" tests to allow thatresult constitutes quite a stretch. (Initial Decision at 9-10.) The ALJ also found that Ventura's theory ofthe case was flawed because it had failed to define the term "module" satisfactorily.· (Initial Decision at 10.) The ALJ wrote that Ventura could not rely upon any guidance in FAA Order No. 8400.10 or Ventura's training manual "to change the unambiguous meaning ofa regulation," (Initial Decision at II.) He held that the regulation requires that the pilot complete various recurrent training and checking events within 12 calendar months, not 15 calendar months plus a grace month. (Initial Decision at 11.) The ALJ heldthat Tarascio was out oftime when he made the three flights in April2006, because "one-year-plus-a-grace-monthhiatus for testing under§ 135.293(a)(l) and (a)(4)-(8) had expired at the end ofMarch 2006." (Initial Decision at 13.) Hence, he held, Venturaused an unqualified second-in-command pilot on three flights in April2006. (Initial Decision at 13.) Regarding sanction, the ALJ found that it was unfair to impose a heavy financial liability upon Ventura for several reasons, including that "Ventura made the wrong guess" when "faced with an ambiguous regulatory situation."24 (Initial Decision at 14 and 15.) The violation, the

24 He wrote in the Initial Decision at 14

### ~s follows: 14ALJ held, was "neither extraordinarily blameworthy, intentional nor deliberate." (Initial Decision at 15.) Consequently, the ALJ assessed a $1.00 civil penalty, rejecting the $15,000 civil penalty sought by Complainant. III. Anaylsis A. The ALJ's findings offact were supported by a preponderance ofthe reliable, probative and substantial evidence, and his conclusions oflaw were made in accordance with the applicable law, precedent, and policy. Althoughthe issue inthis case is relatively easy to describe, the necessary analysis is

more difficult. Simply put, pursuantto 14 C.P.R.§§ 135.293(a) and (b), Tarascio was required to complete certaintesting and checking every 12 months. The 12-monthrequirement ofSection 135.293, however, is modified by Section 135.301, which allows a testtaken either the month before orthe month after (the "grace month") to be deemed as having been taken during the month it is due (the "base month"). Further, paragraph 603B ofFAA Order No. 8400.10, the Order that implements the regulations, provided that even ifthe required recurrent test is not taken during the base month the following year, there is no violation for flight activities that

occur within the grace month. This system oftesting is relatively straight forward in circumstances where the base month or the "checking month" for a particularpilot is already established because the

[T]he FAA had published "guidance"that was viitually at war with the text ofits regulation. While§ 135.293 told the aviation community that flight deck crewmembers must be trained and tested on an annual basis, another section ofthe FAR

... went on to say that the annual test of flight checkrequirement can be fulfilled once every 13 months. Then, to add further ambiguity to the requirement for annual testing, the FAA published§ 10 ofOrder No. 8400.10, which appears to say thatthe requirement for an annual test ofpiloting skills (meaning a test every 13 months) can be met in certain circumstances by "adopt[ing] a modular approach," performing the training, testing, orboth, over a three-month period and then treating all ofthetesting as ifit had been done on the last day ofthat three-month period. To add an additional enigma to the regulatory program, the agency's chiefcounsel then issued an interpretation which can be construed to extend the annual training-and-testing cycle to some 15 months! 15determination ofwhentesting "is due" is a simple matter. The difficulty in the instant case arises in connection with determining the checking month for a pilot, such as Tarascio, who is newly hired bythe Part 135 certificate holder, here Ventura, and who does not have an established checking month. Ontheir face, the regulations are not ambiguous with respect to the requirementto have accomplishedthe required testing every 12 months (with a grace period). The ambiguity arises from paragraph 603A(1) ofFAA OrderNo. 8400.10, regarding the establishment ofthe "training/checking" month. Paragraph 603A(l) ofthat Order advised that "[w]hen a crewmember completes an initial

... training program within a 3-calendar month period, the month in whichthe qualification curriculum segment is completed is then considered to be that crewmember's training/checking month and the operator may make a single record of the entire curriculum withoutnoting whenindividual events occurred." Ifthe training program, including the qualification segment, extends beyond three months, the Order advises, the certificate holder must "schedule the accomplishment ofrecurring events separately." The Order does not provide any express guidance regarding circumstances where the qualification segment is accomplished over more than the last month, which is what Ventura claims happened in this

case. Nor does the Order make any express distinction between training and testing. Inthe present case, there is no question thatTarascio took a Section 135.293(a) and (b) test with Inspector Fraher during February 2005. 25 By itself, that fact would compelthe conclusion that Tarascio would be required to completethe same testing againbythe end of March the following year. And, it would foliow, that Ventura would be within regulatory

25 Ventura's argument that Fraher administered an incomplete flight test because she did not have Tarascio perform aV-I cut is frivolous because, as Inspector Sees explained, aV-I cut is not required by the FAA or by Ventura's training program. See Respondent's Exhibit 9, at page 8-3, which indicates that a pilot must demonstrate a takeoffwith apowerplant failure only in a multiengine aircraft but this "may be tested by alternative means ifthe performance characteristics ofthe aircraft make this event hazardous." 16compliance for any flights Tarascio flew as second in commandthroughthe end ofMarch ofthe following year, but would not be withinthe regulations for any flights, such as the ones in controversy here, in April ofthe following year. Ventura defends the April flights, arguing that, notwithstanding Tarascio's testing in February 2005, his initial training was not concluded until he underwent further training and testing at SIMCOM in March 2005. Venturapoints to the language ofthe FAA's Order in asserting that because Tarascio's training and testing extended into March, it is March, not February, which should be consideredthe base or checking month. Ifthat were the case, then Tarascio's flights in April were withinthe grace period. It is notnecessary to parse the potential conflict between the regulations and the FAA order inthis case because Ventura did not demonstrate that Tarascio's training and testing in February and March were part ofthe same curriculum, and because even ifthey were part ofthe

same curriculum, Ventura did not prove that the entire training program- startto finish

- was accomplished within three months so that Ventura should be allowed to use March, rather than February, as his checking month for Sections l35.293(a)(l) and (4)-(8) testing. The preponderance ofthe evidence supports a determination thatFebruary was Tarascio's checking month for those sections, and consequently, thatthe flights he made in April 2006 were after the expiration ofthe eligibilityperiod for Section 135.293 testing. Ventura failed to offer sufficient proofthat Tarascio's "training program" was limited to three months orthat his initial training program was not completed until after he attended training at SIMCOM. Peck'stestimony that everything was completed within 6 weeks referred onlyto the time betweenthe tests with Fraher and at SIMCOM. Ventura neverpresented a comprehensive explanation ofTarascib'straining or when such training began. Ventura's only fact witness was Tarascio, who testified thathe took the test with Fraher on February 3, 2005,

17after completing the basic indoctrination training. Tarascio, however, did not provide the date(s) ofhis basic indoctrinationtraining or explainhow long before the February 3, 2005, test his basic indoctrination training occurred. Peck had no personal knowledge ofTarascio'straining. His testimonywas based on training records. Ventura did not introduce any ofTarascio's training records. The training records

. might have shownthe dates onwhich Tarascio started and completedthe initial orreduced initial newhire training, depending upon how Ventura kept its records and how long ittook Tarascio to completethat curriculum. IfVentura only recorded the date on which Tarascio completed the initial or reduced initial newhire curriculum because the training was completed in 3 months, then someone with personal knowledge regarding how the records were kept needed to testify to that "fact." Venturaneeded a fact witness, such as the chiefpilot orthe chiefoperations officer, to testify about howthe operator kept its training records generally and Tarascio's training records, in

### p~rticular, and to explain whattraining, testing and checking Tarascio completed onwhat dates. However, no one from Ventura's managementtestified. Althoughnot dispositive**ofth~** issue ofhowlong the training program lasted, the record reflects that Tarascio completed some testing under Sections 135.293(a)(l) and (4)-(8) on December 8, 2004. No reason for the December 8, 2004, test with Mauro was given. This testing constitutes at least circumstantial evidence ofa "training program" longer than the threemonth period described in FAA OrderNo. 8400.10. Further, the preponderance ofthe evidence does not support Ventura's theory that Tarascio had notcompleted his training and testing under Sections 135.293(a) and (b) before he took the test and check with Inspector Fraher. Ventura contends that Inspector Fraher gave Tarascio the February check andtest before he completed his Part 135 training because he

18needed to participate in the proving runs. To provethis theory, Ventura needed to introduce the company's training records and the testimony ofa management official to explain those records

as well as the circumstances surrounding the proving runs. Tarascio did not keep his own training records and he did not have first-hand lmowledge about the timing ofthe proving runs. Inspector Fraher should not have administered the complete test and flight check under Sections 135.293(a) and (b) respectively to Tarascio ifhe had not completed his required training. Also, proving flights are governedby 14 C.P.R. § 119.33(c),26 (Tr. 411), and therefore, Tarascio should not have flown on any provingruns (and Ventura should not have used him) until he had completed his Part 135 training. Since the evidence, inparticular, the FAA testing forms, supports a finding that Tarascio completed his training, testing and checking for the initial or reduced initial new-hire curriculum onFebruary 3, 2005, then any training and Sections 135.293(a)(2) and (3) testing and Section 135.293(b) checkinghe took inMarch 2005 was part ofanother curriculum. Consequently, Tarascio's March 2005 testing and checking could not be combined with Februarytesting and checking to determine when recurrent Sections 135.293(a)(l) and (4)-(8) testing was due in 2006. Expert testimony is evaluated on the basis ofits logic, depth and persuasiveness. 

### Griffin Avionics, FAA OrderNo. 2007-9, at 10, n.l6 (August 2, 2007); 

### Stambaugh'sAirService, FAA Order No. 2001-7 (May 16, 2001); 

### Metcalf, FAAOrderNo. 1993-17 at 6 (June 10, 1993). Peck's expert testimony that Tarascio's training and testing in February and March 2005 were part ofthe same curriculum was notpersuasive. Despite his claims that he had thoroughly examined Tarascio's records, he was unable to testify about whenTarascio was hired by Ventura

26 Section 119.33(c) provides in pertinent partthat "[all proving tests mustbe conducted underthe appropriate operating and maintenance requirements ofpart 121 or 135 ofthis chapterthat would apply if theapplicantwerefullycertificated." 14C.F.R. § 119.33(c). See also 14C.F.R. § 135.l(a)(7)which states that Part 135 governs "[e]ach person who is an applicant for an Air Carrier Certificate or an Operating Certificate under [Part]ll9 ofthis chapter, when conducting proving tests." 19and when he began serving as a pilot for Ventura. More importantly, as the ALJ found, Peck

was unable to explain satisfactorily what a module is. The terms "modulartraining," "training module" and "checking and qualification module" are defined in the FAA OrderNo. 8900.1, and had the same definitions in its predecessor, FAA OrderNo. 8400.1027 but Peck showed no familiarity with these definitions. In contrast, the description ofa modular training program, including curriculums, segments, modules, elements and events, given by Inspector Sees was consistentwiththe definitions ofthese terms inthe FAA Orders. (See Appendix III.) Further, Peck'stestimony was unpersuasive in light ofhis incorrecttestimony that proving flights are conductedunder Part 91 andthat Tarascio's flight test with Fraher was incomplete. 28 In light ofthe above, it is held that Ventura failed to prove its affirmative defense that Tarascio had completed his reduced initial new-hire training and testing within a 3-month period, ending in March 2005, which allowed Ventura to use him in revenue service in April 2006 althoughhe did notundergo recurrent Sections 135.293(a)(l) and (4)-(8) testing until May 2006. B. The ALJ Did Not Err In Receiving Inspector Sees As An Expert Witness. Ventura arguedthat the ALJ should not have accepted Sees as an expert witness inthis

case. According to Ventura, Sees'stestimony did not meet the test for reliability set forth in Kumho Tire Co. v. Carmichael, 526 U.S. 135 (1999), and therefore, the ALJ should have excluded Sees's expert opinion testimony.

27 See Appendix Ill.

28 Peck opined that Tarascio's flight test in February 2005 was incomplete because Tarascio did not perform a V-1 cut, which "is where you lose an engine right afterthe speed ofV-1" while "[y]ou are still on the runway." (Tr. 283-284). However, aV-1 cut is not required under Ventura's training manual, which provides thattakeoffwith powerplant failure in a multiengine aircraft "may be tested by alternative means ifthe performance characteristics ofthe aircraft make this event hazardous." (Respondent's Exhibit 9 at page 8-3.) See testimony oflnspector Sees at Tr. 444-447, and 449-500. 20In Kumho, the Supreme Court held that trialjudges were required under Fed.R.Evid. 702 to determine whether expert opiniontestimony based upon technical or other specialized knowledge was sufficientlyreliable to admit. Previously, in Daubertv. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the Court hadheld that trialjudges were required to perform such a "gatekeeping" function regarding scientific experttestimony. The Court in Daubert gave examples offactors for trialjudges to consider including whether a theory or technique can betested, has been subjectedto peerreview and publication, has a high known or potential error rate, and has been generally accepted withthe relevant community ofexperts. In Kumho, the Court considered whether the Daubertfactors should be considered by trialjudges regarding technical experts. The Court held thatit could "neither rule out, nor rule in, for all cases and for all time the applicability of**th~** factors mentioned in Daubert

..."because "[t]oo much depends upon the particular circumstances ofthe particular case at issue." Kumho, 526 U.S. at 150. In the present case, the questions about testing, peer review, publication, and

error rate, and acceptance bythe relevant community ofexperts are inapplicable. 29 Agency proceedings are governed by the Administrative Procedure Act (APA) and the



### . agency's individual procedural rules. The APA provides that "[a]ny oral or documentary

29 Moreover, while the Federal Rules ofEvidence govern the admission ofevidence injurytrials, ALJs in agency proceedings are not bound to follow those rules. Bennettv. NTSB, 66 F.3d 1130, 1137 (1

### o'h Cir. 1995). "Agencies relax the rules ofevidence because they believe thatthey have the skill needed to handle evidence that might mislead ajury." Peabody Coal Company v. McCandless, 255 F.3d 465 (7'h Cir. 200l)(referringtoRichardson v. Perales, 402 U.S. 389 (1971). Kumho and Daubert are based upon Fed.R.Evid. 702. Hence, because ALJs in FAA civil penalty proceedings are not required to apply Fed.R.Evid. 702 when deciding whetherto admit expert evidence, they are not required to follow thetests for exclusion ofexperttestimony setforth in Kumho orDaubert either. See e.g., Bayliss v. Barnhart, 427 F.3d 1211 (9'h Cir. 2005) statingthat the "Federal Rules ofEvidence do not apply to the admission ofevidence in Social Security administrative proceedings" and becauseDaubert and Kumbo rest upon an interpretation ofRule 702, neither decision governs the admissibility ofevidence before an ALJ in administrative proceeding in a Social Security case); Peabody v. McCandless, 255 F.3d at 469 (Daubert does not apply directly in black lung cases, because it is based on Fed.R.Evid. 702, which agencies need notfollow.) 21evidence may bereceived butthe agency as a matter ofpolicy shall provide for the exclusion of irrelevant, immaterial orunduly repetitious evidence." 5 U.S.C. § 556(d). Section 13.222(b) of the FAA's Rules ofPractice in Civil PenaltyProceedings, 14 C.P.R.§ 13.222(b) similarly provides that an ALJ "shall admit any oral, documentary, or demonstrative evidence introduced by a partybut shall exclude irrelevant, immaterial, orunduly repetitious evidence. Inspector Sees'stestimony was not irrelevant, immaterial or unduly repetitious.30 C. Ventura's Argument that Section 135.293(a) is Void for Vagueness is Rejected. Ventura argues on appeal that Section 135.293(a) is void for vagueness based upon the ALJ's finding that "Ventura, in deciding how to deal with Capt. Tarascio's qualifications, was faced with an ambiguous regulatory situation." Ventura argues that because, as the ALJ found, the "published guidance was virtually at war with the text ofthe regulation," it did not have fair warning ofthe rule'srequirements. Hence, Ventura urges, the Administrator should reverse the ALJ's initial decision and dismiss this case. (Appeal Briefat 23, 25.) Underthe void for vagueness doctrine, a law or regulation that does not fairly inform a person ofwhat is commanded orprohibited orthat encourages arbitrary and discriminatory enforcement is unconstitutional because it violates due process. Trans StatesAirlines, Inc., FAA OrderNo. 2005-2 at 9-10 (March 9, 2005). When evaluating a void for vagueness argument, a court will require only a reasonable degree ofcertainty, and will require less precision for a regulation that does not govern First Amendment activities. Id., citing Throckmorton v. National Transportation SafetyBoard, 963 F.2d 441, 445 (D.C. Cir. 1992). The Administratorhas

3

# °

Finally, Ventura argued that "the circumstances ofhis [Sees's]late involvement in this case casts a large dark shadow over the logic and depth ofhis testimony," and, therefore, "his testimony should be disregarded." (Appeal Briefat 31.) Such hyperbole is unpersuasive and unwarranted. While the FAA did not inform Venturathat it planned to call Sees as an expert witness until shortly before the scheduled hearing date, the ALJ postponed the hearing, and Ventura was able to depose him prior to the hearing in April. (See Tr. 479.) 22declined to consider certain constitutional challenges, such as a challenge to the rules ofpractice

as a whole, because a Federal Court ofAppeals is the appropriate forum for such appeals.31 ContinentalAirlines, FAA Order No. 1990-12 at 6 (April25, 1998). The Administratorhas considered certain claims ofvagueness to ensure that a regulation allegedly violated is defined with a sufficient degree ofspecificity so as to support the imposition ofa punitive sanction. AmericanAirlines, FAA Order No. 1999-1 at 7-8 (March 2, 1999). The regulations are reasonably clear. As Sees;testified: The regulations stipulate and they are very plain and straightforward that no operator may use a pilot nor may a pilot serve as a pilot for an operator ifthey have not, withinthe past twelve calendarmonths, received a 135.293(a) and (b) test and 135.301 specifies that there is a grace monthperiod that iftheytook that test in the eleventh or thlrteenth month, it would be consideredto have. been take!) in the twelfth month. That did not happen in tills case. (Tr. 403.) D. The ALJ Should Have Found ThatVentura Violated Section 91.13. The ALJmade no specific finding regarding whether Ventura violated Section 91.13 but he did find that Tarascio had the knowledge necessary to pass the Section 135.293(a) tests and that public safety was not at risk in April 2006 when Tarascio flew as second in command. The FAA argues on appeal that "[b]eingthat Mr. Taras,cio's qualifications were untested and unknown during those April 2006 flights, it was error for the ALJ to conclude that the public safety was never at risk

... on the three flights." (Complainant's Appeal Briefat 18.) Section 91.13(a) prohlbits any person from operating an aircraft "in a careless or reckless

manner so as to endanger the life orpropertyofanother." 14 C.P.R. 

### § 91.13(a). Absent extraordinary circumstances, a residual or derivative violation ofSection 91.13(a) is established

once certain operational violations are proven. E.g., Ace Pilot Training, FAA Order No. 2005-12

31 "Challengesto the constitutionality ofan agency regulation

... lie outside the cognizance of that agency." Howardv. FAA, 17 F.3d 1213,1218 (91 h Cir. 1994). 23(August 17, 2005) (operation ofan aircraft that is not in compliance with airworthiness directives constitutes a violation of 14 C.F.R. § 39.3, and a residual violation ofSection 91.13(a)); USAIR, Inc., FAA OrderNo. 1992-70 (December 21, 1992) (operation ofan unairworthy aircraft constitutes a violation of 14 C.F.R. §§ 121.153(a)(2) and a residual violation ofSection 91.13); Administrator v. Seyb, NTSB Order EA-5024 (February 27, 2003) (deviation from an air traffic control instruction is a violation of 14 C.F.R. § 91.123 and a residual violation ofSection 91.13); Administrator v. Rogers, NTSB OrderEA-4428 (February 20, 1996) (operating an aircraft with

an inaccurate load manifest constituted a violation ofSection 135.63 and a residual violation of Section 91.13(a)). Proofofactual danger is not necessary to establish a violation ofSection 91.13(a) because that regulationprohibits any careless orreckless practice which is inherently dangerous and has the potential tojeopardize safety ofpersons and property. Terry, FAA Order No. 1991-12 at 10 (Apri112, 1991) (citing Haines 

### v. Dep't ofTransp., 449 F.2d 1073, 1076 (D.C. Cir. 1971)), ciff'dsub nom, Terry 

### v. Busey, 972 F.2d 1445 (D.C. Cir. 1992). In this case, the conclusion that Ventura violated Section 91.13(a) by acting in a careless

manner so as to endanger the lives andproperty ofothers arises from the finding that Ventura violated Section 135.293(a)(l) and (4)-(8), and no specific evidence ofcarelessness or actual or potential danger was required. Permitting a pilotwho has not demonstrated in atimely fashion that he has the knowledge required under the regulations to serve as a crewmember on flights for compensation orhire constitutes a careless endangerment ofthe safety ofpassengers and other crewmembers, as well as ofproperty. The fact that Tarascio passed the test on May 6, 2006, with Inspector Rogers does not prove that Tarascio had the requisite knowledge one month earlier. However, the finding ofa residual violation ofSection 91.13 does not warrant an increase inthe civil penalty. Go Jet, FAA OrderNo. 2012-5 at 15-16 (May 22, 2012).

24E. The $1.00 Assessed ByThe ALJ Is Not ConsistentWith Applicable Law, Precedent, and Pnblic Policy. I. The ALI's Failure To Consider FAA Sanction Guidance Was Arbitrary And An Abuse OfDiscretion. Rogers testified that he had relied upon paragraph 

### 0 ofthe Sanction Guidance Table in FAA OrderNo. 2150.3A, Appendix 4, part I. (Tr. 110-111.) The FAA sought to introduce a copy ofan.excerpt from FAA Order No. 2150.3B, which was in effect onthe date ofthe hearing, rather than an excerpt from FAANo. Order 2150.3A, which was in effect atthe time ofthe flights inthis case. The ALJ noted at the hearing that he couldhave takenjudicial notice ofthe pertinentportion ofFAA Order No. 2150.3A. Instead, the ALJ gave the FAA leave to submit the pertinentportion from FAA Order No. 2150.3A as a late-filed exhibit (Tr. 503), but did not specify a date certain for that submission. Also, the ALJ directed bothparties to file post-hearing initial briefs andpost-hearing reply briefs simultaneously. (Tr. 501.) Instead offiling the excerpt from FAA OrderNo. 2150.3A separately, theFAA attached the excerptto its initial posthearing brief. The ALJ ruled in his dedsionthat the FAA's submission was too late because "it deprived the Respondent ofthe opportunity to examine it and refer to it in its post-hearing initial brief." (Initial Decision at 

### 14.) Under the circumstances, it was arbitrary and an abuse ofdiscretion for the ALJ to reject the excerpt from FAA OrderNo. 2150.3A as filed too late for the following reasons. The ALJ did not establish a firm due date for the late-filed exhibit, and the FAA attorney had no reason to believe that the ALJ expected the excerpt to be submitted priorto the filing ofthe initial posthearing brief. Moreover, although superseded by FAA OrderNo. 2150.3B, FAA Order No. 2150.3A remains accessible to the public." Ventura and the ALJ knew from Rogers' testimony

32 This order may be obtained at http://rgl.faa. gov/Regulatorv and Guidance LibrarvlrgOrders.ns(/kev!Order%202150.3A. 25which portions ofthatorderthe FAA considered relevant. Importantly, Venturahad an opportunity to comment about the excerpt when it filed its post-hearing reply brief inresponse to the FAA's arguments about sanction in its initial post-hearing brief. Hence, Ventura was not placed at a disadvantage by the submission ofthe excerpt as an attachmentto the FAA'sposthearing initial brief. 2. A $15,000 Civil Penalty Is Appropriate. The Administrator has broad authority to assess civil penalties against individuals for violations ofthe regulations. In 2006, when the violations in this case occurred, the Administrator had the authority to assess an $11,000 civil penalty perviolation ofthe Federal Aviation Regulations (FAR), with each violation on each flight constituting a separate violation. 49 U.S.C. §§ 4630l(a)(2) and (a)(4); 14 C.P.R.§ 13.305(d) (2006) (regarding inflationadjustment ofcivil penalty authority.) An appropriate civil penalty mustreflect the totality ofthe circumstances surrounding the violations. 33 The Administratorprovided policy guidance for agency employees to follow regarding sanctions for different types ofviolations ofthe Federal aviation statute and the FAR in the Compliance and Enforcement Order, FAA Order No. 2150.3A. The Sanction Guidance Table, contained in Appendix 4 ofthat order, was designed to provide "general guidance for the exercise ofthe agency's prosecutorial discretion" to "assure nationalconsistency in enforcing the Federal AviationRegulations." FAA OrderNo. 2150.3A, Appendix 4 at page 1. The Sanction

33 The factors that the FAA will consider include: (I) the nature and circumstances ofthe violation; (2) the extent and gravity ofthe violation; (3) the person's degree ofculpability; (4) the person's history ofviolations, ifany; (5) the person's ability to pay the civil penalty; (6) the effect on the person's ability to stay in business; and (7) other matters asjustice may require. Warbelow 'sAir Ventures, Inc., FAA OrderNo. 2000-3 at 16-17, n.22, and 21 (February 3, 2000), reconsideration denied, FAA Order No. 2000-14 (June 8, 2000) and FAA Order No. 2000-16 (August 8, 2000),petitionfor review denied, Warbelow 'sAir Ventures v. FAA, No. 00-70423 (91 h Cir. September 20, 2001). 26Guidance Table in FAA Order 2150.3A, Appendix 4, recommends a minimum, moderate and/or maximum range sanctions for different types ofviolations committed by air carriers. When the \ FAA formulated these sanction ranges for different types ofviolations, the agency consideredthe nature, extent and gravity ofeach general type ofviolation as well as the individual's prior violationhistory (in that the table provides recommended penalties for first-time offenders.) 

### Folsom'sAir Service, Inc., FAA Order No. 2008-11 at 12 (November 6, 2008); 

### Schultz, FAA Order No. 1989-5 at 12 (November 13, 1989). The FAA latermodified these ranges through the issuance ofthe Compliance/EnforcementBulletinNo. 92-1, includedin Appendix 1 ofF AA Order No. 2150.3A. The guidelines in Compliance/Enforcement Bulletin 92-1 were issued as "ameans of placing a relatively equivalent deterrent effect on each air carrierthat violates the same FAR, by considering the size ofthe carrier in determining an appropriate civil penalty."34 ' Compliance/Enforcement BulletinNo. 92-1, FAA Order 2150.3A, Appendix I, at 103. Under Compliance/Enforcement BulletinNo. 92-1, the maximum, moderate, and minimum civil penalty ranges vary depending upon the size ofthe carrier. 35 The Sanction Guidance Table, paragraph 0, explains that a maximum range civil penalty is appropriate in cases involving the use by an air carrier ofan unqualified crewmember. The FAA did not introduce any evidence regarding Ventura's size. Consequently, 

### itis appropriate to

34 This Bulletin established a system for classifying air carriers by size. Under that Bulletin, air carriers were divided into four groups, with the largest air carriers belqng to Group I and the smallest air carriers included in Group IV. Group IV included Part 135 operators having fewer than six aircraft or no more than three different types ofaircraft, and employing fewer than six pilots. Generally speaking, Group I carders are subjectto higher civil penalties than the carriers in Group I.

., 35 For example, the maximum civil penalty range (as adjusted for inflation) in 2006 for a violation by a Group I carrier (Part 121 and Part 135 air carriers with annual operating revenue of$100,000,000 or more) was $7,500 to $11,000. The maximum civil penalty range (as adjusted for inflation) in 2006 for a violation by a Group IV carrier (the smallest Part 135 air carriers) was $4,000 to $11,000 per violation. 27apply the maximum civil penalty range for a Group IV operator. Atthe time ofthese violations, the maximum civil penaltyrange for Group IV operators, as adjusted for inflation, was $4,000 to $11,000 per violation for each flight. Compliance/Enforcement BulletinNo. 92-1, FAA Order No. 2150.3A, Appendix 1, at 106, and Appendix 4 at 6; 14 C.P.R.§ 13.305(d)(2006). The $15,000 civil penalty sought bythe FAA is consistentwiththe sanction guidance in effect at the time for Ventura's violations ofSections 135.293(a)(1)-(4)-(8) onthree flights. No additional penalty is appropriate for the violations ofSection 91.13 because they were residual violations. The Sanction Guidance Table, as modified by the Compliance/Enforcement Bulletin, express the Administrator's sanctionpolicy, and ifan ALJ assesses a civil penalty that is not consistent with agency sanction policy, the Administrator on appeal may reverse the ALJ. 

### Folsom'sAirService, FAA Order 2008-11 at 14. The ALJ gave several reasons for assessing only a nominal $1.00 civil penalty. The ALJ explained that "inthe final analysis, as we have seen, Ventura made the wrong guess, but it can hardly be faulted for havingto guess; that is what the regulatory atmosphere required ofit." (Initial DeCision at 15.) However, Ventura introduced no evidence to prove that any member of its management relied upon FAA Order No. 8400.10, paragraph 603, when deciding whether Tarascio was qualified to fly as co-pilot on the flights on April1, 2, and 13,2006. The evidence in the record shows onlythat Ventura's expert witness thought that Ventura's use ofTarascio did not constitute violations ofSections 135.293(a)(1) and (4)-(8), Ventura's expert witness, however, did not assign Tarascio to those flights. Hence, there is no evidence that Ventura "made the wrong guess" based upon the guidance contained in FAA OrderNo. 8400.10. The ALJ also stated, whenjustifyingthe $1.00 civil penalty, that it was significantthat Tarascio was "atall relevant times knowledgeable and skillful enough to pass all ofthe tests set

28out in§ 135.293(a)." (Initial Decision at 15.) However, the fact that Tarasciso passed the Sections 135.293(a)(l) and (4)-(8) testing approximately I month afterthe flights is fortunate, and at best,justifies a penalty at the lower end ofthe appropriate penalty range. The $15,000 civil penalty amounts to a $5,000 civil penalty for the violations on each ofthree flights, and consequently, is at the lowend ofthe maximum penalty range for a Group IV carrier. It should be notedthat taking and passing the knowledge test required under Sections 135.293(a)(l) and (4)-(8) after the flights in question defeated the purpose ofthe periodic testing requirement which is to ensure that a pilot retains the knowledge that he or she needs to fly persons or property for compensation orhire before flying. The ALJ alsojustifiedthe imposition ofa nominal $1.00 civil penalty on the fact that the FAAdid not introduce evidence ofprior violations by Ventura. The sanctionranges set forth in FAA guidance, however, reflect the appropriate civil penalties for persons without a history of violations. FAA OrderNo. 2150.3A, Appendix 4, at I. VI. Conclusion Ventura's appeal is denied, and the FAA's appeal is granted in part. A $15,000 civil ' penalty is assessed. 36

M CHAEL P. HUERTA ACTING ADMINISTRATOR Federal Aviation Administration

36 This order shall be considered an order assessing civil penalty unless Respondent files a petition for review within 60 days ofservice ofthis decision with the U.S. ComtofAppeals for the District ofColumbia Circuit or the U.S. court ofappeals for the circuit in which the respondent resides or has its principal place ofbusiness. 14 C.F.R. §§ 13.16(d)(4), 13.233(j)(2), 13.235 (2009). See 71 Fed. Reg. 70460 (December 5, 2006) (regarding petitions for review offinal agency decisions in civil penalty cases). 29Appendix I Section 135.293, entitled "Initial and recurrentpilot testing requirements," provides in pertinent part as follows: (a) No certificate holder may use a pilot, normay anyperson serve as a pilot, unless since the beginning ofthe I

## z!h calendar month before that service, thatpilot has passed a written or oral test, given by the Administrator or an authorized check pilot, on that pilot's knowledge inthe following areas- (1) The appropriate provisions ofparts 61, 91, and 135 ofthis chapter and the operations specifications and the manual ofthe certificate holder; (2) For eachtype ofaircraftto be flown bythe pilot, the aircraftpowerplant, major components and systems, major appliances, performance and operating limitations, standard and emergency operationprocedures, andthe contents ofthe approved Aircraft Flight Manual or equivalent, as applicable; (3) For each type ofaircraftto be flown by the pilot, the method ofdetermining compliance with weight and balance limitations for takeoff, landing and enroute operations; (4) Navigation and use ofair navigation aids appropriate to the operation orpilot authorization, including, when applicable, instrument approach facilities andprocedures; (5) Airtraffic control procedures, including IFRprocedures when applicable; (6) Meteorology in general, includingthe principles offrontal systems, icing, fog, thunderstorms, and windshear, and, ifappropriate for the operation ofthe certificate holder, high altitude weather; (7) Procedures for

- (i) Recognizing and avoiding severe weather situations; (ii) Escaping from severe weather situations, in case ofinadvertent encounters, including low-altitude windshear (except that rotorcraft pilots are not required to be tested on escaping from low-altitude windshear); and (iii) Operating in or near thunderstorms (including best penetrating altitudes), turbulent air (including clear air turbulence), icing, hail, and other potentially hazardous meteorological conditions; and (8) New equipment, procedures, ortechniques, as appropriate.

30Appendix II Section 135.293(b) provides: No certificate holder may use a pilot, nor mar, any person serve as a pilot, in any aircraft unless, since the beginning ofthe I

## i 1 calendar month before that service, thatpilot has passed a competency check given by the Administrator or an authorized check pilot inthat class ofaircraft, ifsingle-engine airplane other than turbojet, or that type ofaircraft, ifhelicopter, multiengine airplane, or turbojet airplane, to determine the pilot's competence in practical skills and techniques in that aircraft or class ofaircraft. The extent ofthe competency check shall be determined bythe Administrator or authorized checkpilot conducting the competency check. The competency check may include any ofthe maneuvers and procedures currently required for the original issuance ofthe particular pilot certificate required for the operations authorized and appropriate to the category, class and type ofaircraft involved. For the purposes ofthis paragraph, type, as to an airplane, means any one ofa group ofairplanes determined bythe Administrator to have similar means ofpropulsion, the same manufacturer, and no significantly different handling or flight characteristics. Forthe purposes of this paragraph, type, as to a helicopter, means a basic make and model.

31Appendix III The following definitions regarding training programs were set forth in Section 283 of FAA OrderNo. 8400.10 in effect in 2005-2006 (and are identical to the current definitions set forth in Paragraph 3-1072 ofthe current FAA Order No. 8900.1):

• TrainingProgram: A system ofinstruction which includes curriculums, facilities, instructors, check airmen, courseware, instructional delivery methods, and testing and checking procedures. This system must satisfythe training programrequirements of Part 121 or Part 135 and ensurethat each crewmember

... remains adequately trained for each aircraft, duty position, and kind ofoperation in which the person serves.

• Modular Training: The concept ofprogram development in which logical subdivisions oftraining programs are developed, reviewed, approved and modified as individual units. Curriculum segments and modules may be used in multiple curriculums. The modular approach allows great flexibility in program development and reduces the administrative workload on both operators and instructors in the development and approval ofthese programs.

• Categories of Training: The classification ofinstructional programs bythe regulatory requirement the training fulfills. Categories oftraining consist ofone or more curriculums. The categories oftraining are initial new-hire, initial equipment, transition, upgrade, recurrent ,and requalification.

• Curriculum: A complete training agenda specific to an aircraft type, a crewmember

... position and a category oftraining. Anexample is an "initial new- hire, Boeing 727 flight engineer curriculum." Each curriculum consists ofseveral curriculum segments.

• Curriculum Segment: The largest subdivision ofa curriculum containing broadly related training subjects and activities based on regulatory requirements. Curriculum segments are logical subdivisions ofa curriculum which can be separately evaluated and individually approved.' Examples are a "ground training" segment and a "flight training" segment. Each curriculum segment consists ofone or more training modules.

• Training Module: A subpart ofa curriculum segment which constitutes a logical, self-containedunit. A module contains elements or events which relate to a specific subject. For example, a ground training curriculum segment could logically be divided into modules pertaining to aircraft systems (such as hydraulic, pneumatic and electrical). As another example, a flight training curriculum segment is normally divided into flight periods, each ofwhich is a separate module. A training module includes the outline, appropriate courseware and the instructional delivery methods. Itis usually, but not necessarily, completed in a single training session.

32• Element: An integral part ofa training, checking, or qualification module that is not task-oriented but subject oriented. For example, an "electrical power" ground training module may include such elements as a [direct current] DC power system, an [alternating] AC power system, and circuit protection.

• Event: An integral part ofa training, checking, or qualification module which is taskoriented and requires the use ofa specific procedure orprocedures. A training event provides a student an opportunity for instruction, demonstration, and/orpractice using specific procedures. A checking or qualification event provides an evaluator the opportunity to evaluate a student's ability to correctly accomplish a specific task without instruction or supervision.

• Checking and Qualification Module: An integral part ofa qualification curriculum segmentwhich contains checking and qualification requirements specified under Part 121 orPart 135. For example, a qualification curriculum segment may contain a proficiency check module, a LOFT [Line-Oriented Flight Training] module, and an operating experience (qualification) module.

33

## ' 

## SERVED SEPTEMBER 24, 2009**r,~...,** .... r-,... Tr- ''**~~.~--!-•"'\\!** 

### U.S. DEPARTMENT OF TRANSPORTATION;,. r ·· .;. "

.., · 

### OFFICE OF HEARINGS WASHINGTON, DC

INTHE MATTEROF VENTURA AIR SERVICES, INC., Respondent. FAA DOCKETNO. CPEAOOOS (Civil Penalty Action) DMS NO. FAA-2008-0505 

### ADMINISTRATIVE LAW JUDGE'S INITIAL DECISION The issue in this case is whether a second-in-commandpilotemployed by Respondent Ventura Air Services (Ventura), a Part 135 carrier, 1

### was fully qualified in April2006, when he served in that capacity as a member ofthe flight crew in three operations carrying passengers for hire. The Complainant, the Federal Aviation Administration (FAA) chargedthat Nicholas Tarascio, the pilot in question, was not fully qualified because he had nottimely and successfullycompleted certain tests thatare requiredunder§ 135.293(a) ofthe Federal Aviation Regulations (FAR) before a pilot may serve in that capacity in a Part 135 operation. The FAA has sought to assess a civil penalty of$15,000 against Venturato punish the carrier for its use ofan unqualified pilot. Venturahas denied the claimthat Capt. Tarascio was unqualified, asserting that he was at all relevanttimesup to date on his periodic training andtesting in accordance with§ 135.293(a), when theregulation is construed in accordance with the FAA'sguidance to its enforcement staff, Ventura's FAA-approved training manual and an interpretive rulingby the agency's ChiefCounsel. Section 135.293(a) ofthe FAR reads as follows: (a) No certificate holder may use a pilot, nor may any person serve as a pilot, unless, since the beginning ofthe 12th calendar month

1APart 135 carrier transports passengers for hire in commuter or on-demand (air taxi and charter) service. 14 C.F.R. § l35.1(a)(l).

### beforethat service, that pilothas passed a written or oral test, given by the Administrator or an authorized checkpilot, on that pilot'sknowledge in the following areas- (1) The appropriate provisions ofparts 61, 91, and 135 ofthis chapter and the operations specifications andthe manual ofthe certificate holder; (2) For each type ofaircraft to be flown by the pilot, the aircraft powerplant, major components and systems, major appliances, performance and operating limitations, standard and emergency operating procedures, and the contents ofthe approved Aircraft Flight Manual or equivalent, as applicable; · (3) Foreach type ofaircraft to be flown by the pilot, the method ofdetermining compliance with weight and balance limitations for takeoff, landing and en route operations; (4) Navigation and use ofair navigation aids appropriate tothe operation or pilot authorization, including, when applicable, instrument approach facilities and procedures; (5) Air traffic control procedures, including IFRprocedures when applicable; (6) Meteorology in general, including the principles offrontal system, icing, fog, thunderstorms, and windshear, and, ifappropriate for the operation ofthe certificate holder, high altitude weather; (7) Procedures for- (i) Recognizing and avoiding severe weather situations; (ii) Escaping from severe weather situations, in case ofinadvertent encounters, including low-altitude windsheax: (except that rotorcraft pilots are not required to betested on escaping from low-altitude windshear); and (iii) Operating in or near thunderstorms (includingbestpenetrating altitudes), turbulent air (including clear airturbulence), icing, hail, and otherpotentially hazardous meteorological conditions; and (8) New equipment, procedures, or techniques, as appropriate. 

### -2-

### It

### will be noted that several ofthe subjects ofmandatory testing are specific to the type ofaircraft that the pilot orprospective pilot intends to fly. These subjects can be tested only by a check pilot (orFAA representative) who is fully qualified in that type ofaircraft. These requirements posed a problem for Ventura and Capt. Tarascio, since Ventura had not operatedjetaircraft (and specificallythe Learjet Model 25 that Tarascio was hired to fly) and did nothave on its staffa checkpilot who was qualified in that make and model ofaircraft. Capt. Tarascio had beenhired by Ventura in 2004. Tr. 176-77. Priortothat time, he hadbeen employed by a company calledAirEast and hadhad experience on the flight deck ofthe LearjetModel25. Tr. 176. He held a commercial 

### license. Tr. 175. He was put through Ventura's "ReducedInitial New Hire Training Curriculum," as authorized for new crew members with previous experienceunder the carrier's training manual. Tr. 180-81. Ex. R-2 at 2-5. The record indicatesthat in December 2004, Capt. Tarascio had beentested on his knowledge ofthe items required under§ 135.293(a)(l) and (a)(4)-(a)(8) by FAA InspectorEva C. Mauro. Tr. 51; Ex. C-1. She did not, however, test him on the type-specific items required underparagraphs (2) and (3) of§ 135.293(a) at that time. Tr. 51 (Rogers, Direct). This mayhave been the case because Ms. Mauro was notrated inthe Learjet Model 25-althoughthe record does not showthat to have been the case. Id. On February 3, 2005, Capt. Tarascio went on a checkride in a Lealjet Model 25 with an FAA Inspectorby the name ofSusan Fraher. Tr. 182 (Tarascio, Direct). Ms. Fraher, who had qualified as a checkpilot in the LearjetModel 25, was authorized to test Capt. Tarascio on all ofthe prescribed elements ofthe § 135.293(a) test, found that Capt. Tarascio possessedthe knowledge required to pass that testin all respects (at least as a second-in-command) and so noted onthe airman's FAA Form 8410. Tr. 52 (Rogers, Direct); Ex. C-1 at 2. TheFebruary 3, 2005 flight was what was called a "proving flight." Its purpose was to demonstrate to the FAA that Ventura was capable ofsafely operatingthe LearjetModel25 which ithadjustacquired. Tr. 198. (Tarascio, Cross). 2 

### InMarch 2005, Capt. Tarascio went toFlorida for further training at a SimCom Training Center. Tr. 188. SimCom International, Inc., a firm that offered simulatortraining for pilots seekingto become proficient in LearjetModel 25 aircraft, had been approved by the FAA for both!training and testingpurposes. The FAA's approval, granted in April2005, was subjectto one caveat: Ventura was

2 Ventura was required to conduct a proving test under§ 119.33(c) ofthe FAR in order to obtain authority to conduct Part 135 operations using the Learjet Model 25. Capt. Tarascio's father, who was to be the pilot-in-command ofthe Le"!"jet operations, was along on the February 3, 2005 flight and presumably satisfied the FAA inspector that he, too, was capable offunctioning in the role that Ventura had planned for him. 

### -3-

### specifically informed that SimCom was not authorized toperform the tests required under§§ l35.293(a)(l) and (a)(4)-(8). Ex. C-4 atl. Duringhis stay at SimCom, Capt. Tarascio successfully completedall ofthe tests that SimComwas authorized to give, i.e., the tests required under§ 135.293(a)(2) and (a)(3).3 

### On March 17, 2005, SimCom issued its certificate statingthat Capt. Tarascio "has satisfactorily completed a Specialty Curriculum Part 135 Lear 35 Recurrent couurse [sic] with 25 Differences course in accordance with the. standards ofSimCom TrainingCenters." Ex. C-3. According to his records, Capt. Tarascio's next§ 135.293(a) testing took place onMay 8, 2006, when he was tested by FAAInspector MarkRogers and found to have satisfactorily demonstrated his knowledge ofthe matters set forth in paragraphs (a)(l) and (a)(4-8). Ex. C-1, lastpage. Onthat occasion, Inspector Rogershad asked Capt. Tarascio to bring his training records to theproficiency check session. Tr. 38. Going through those records, InspectorRogerstestified, he noticed a "discontinuity" inthat Taracsio had not been tested onthe items specified in§ 135.203(a)(l) and (a)(4-8) since Februaryof2005. Tr. 30, 38-9. That was more than the one-year deadline for periodictesting set forth inthe introductory subsection of§ 135.293; in fact it was longer than the one-yearperiod coupled withthe "grace month" allowedby§ 135.30l(a) ofthe FAR. Underthe latterprovision, a crewmemberwho is required to be tested (or flight-checked) may delay the test or check until the end of"the calendaE monthbefore or after the month in which it is required." 14 C.F.R. § 135.30l(a). Hence, the requirement for a yearly test ofthe crewmember'sknowledge is met ifthe crewmember is tested during the thirteenth month following the month in which he was last tested. But even giving Capt. Tarascio the benefit ofthe "grace month" did not keep him in compliance withthe annual testing requirement, according to InspectorRogers. Looking at Capt. Tarascio'strainingrecords, Rogers'.determined that since he had lastbeen tested in February 2005 onhis knowledge ofall the material requiredunder § l35.293(a), his next testing sessionwas due to occur no laterthanthe endof March 2006. Tr. 39. When Capt. Tarascio came to Inspector Rogers for testing in May of2006, this crewmemberwas more than a month out oftime for testing on the subjects for which SimCom was not qualifiedtotest him. Tr. 43. Inspector Rogerconcludedthat Capt. Tarascio was not qualified to serve onthe flight deck ofany Part 135 flights that tookplace after March 31, 2006. Id. Inspection of Ventura's records turned up irrefutable evidence that Capt. Tarasciohad flown as First Officer on Ventura Part 135 flights on April I, 2006, April2, 2006 andApril

3 Ex. C-1 at 3-4. The SimCom simulatorwas ofa different Learjet model than the one Capt. Tarascio was training to fly. However, it was possible to qualify him on the Model 25 by using so-called "differences." Tr. 58 (Rogers, Direct). 

### -4-

### 13, 2006. Tr. 43-44; Ex.C-5 at 1-2. InspectorRogers began an enforcementproceedingto exact a civil penalty from Ventura. Tr. 93; Ex. C-6. After Venturarequested a hearing, the FAA's complaintwas filed onApril 22, 2008. The complaint charged that the Respondent hadviolatedboth § 135.293(a) and§ 135.293(b) ofthe FAR. As we have seen, the former pertains to the requirement for annual testing ofthe airman; the latter, however, requires crewmembersto complete certaintrainingrequirements. On December 18, 2008, blaming a clerical error, Complainantwithdrew the charge thatthe use ofCapt. Tarascio as a pilot violated§ 135.293(b). Butthe amount ofthe civil penalty sought by the FAA in its original complaint ($15,000) was not reduced. In May 2008, the case was referred to the Department's Office ofHearings. Initially, the ChiefJudge assigned itto himself. On September 11, 2008, he reassigned the case to me. Bothparties engaged in extensive discovery. In addition, both parties filed motions for summary disposition, alleging that there were no disputed material issues offact to be decided. In an order served onJanuary 5, 2009, I denied both ofthe dispositive motions. The two-day hearing tookplace in Islip, New York on April 7-8, 2009. 4 

### Thereafter, initial briefs were submitted by the parties, the Respondent filed a reply brief/ and the case is nowripe for decision. As we have seen, the Complainant's theory ofthe case is that the FARrequires.each pilot successfully to be tested once in everv year (plusthe "grace month") on all ofthe subjects mentioned in§ 135.293(a) ofthe FAR. Capt. Tarascio, by the FAA's lights, failed to comply with that requirement when, having completed the testingprocess onFebruary 3, 2005, he was not again tested onall ofthose subjects specified in§ 135.293(a)(l) and (a)(4)-(a)(8) until May 8, 2006. The Respondent's theory relies on language found in FAA OrderNo. 8400.10, excerpted in Ex. R-1, and in Ventura's FAA-approvedtrainingmanual, Ex. R-2. FAA OrderNo. 8400.10 was published for the purpose ofgiving guidance to the agency's staff"who are responsible for the certification, technical administration, and surveillance" ofPart 121 and 135 air carriers (Ex. C-12 at '1[1); however, it has been made available to the public and is generallyregarded as authoritative in the aviation community. Section 1 0 ofthe applicable version ofFAA Order No. 8400.10 deals with the requirement for recurrent training offlight crewmembers who, like Capt. Tarascio, have been previously trained and qualified for their jobs.6 

### Paragraph 603 of§ 10 states that"[w]hen an operator adopts a modular ap4 Islip is near MacArthur Airport, Ventura's base ofoperations. ' The Complainant elected not to file areply brief. 6 The version ofOrder 8400.I0 that was in effect at the time the alleged violations occurred was Change5, dated June 30, 1991. 

### -5-

### proachto recurrent training, all such training elements and events mustbe grouped into specific modules to be administered and recorded as a recurrent curriCulum segment." It

### goes on to state that when a crewmember completes his orher training within a three-calendar-month period, the month in whichthe qualification curriculum segment is completed is then considered to be that crewmember's training/checking month. Ifthe training has been completed within the 3-monthperiod, the operatormay make a single record ofthe entire curriculum without noting when individual events occurred. Subsequent scheduling ofrecurrent training may then be based onthe training/checking month. Id. at

## 'If 603A( 1 ). The Order goes onto say that the "eligibilityperiodis a 3-month period comprised ofthe calendar month before the month in whichtraining is due, the month in which training is due, and the calendarmonth after the month in which training is due." Id. at 

## 'If 603B. The Respondent claims that the foregoing language entitles it, ifit chooses to "adopt[] a modular approach" for recurrent training ofcrewmembers such as Capt. Tarascio, to train and test him over a three-monthperiod, which includes the month in which his recurrent training was due, and to regard all training and testing completed during thatperiod as having been completed at the end ofthe period. Resp'tPost-Hearing Briefat 18. It points to language in its training manual (Ex. R-2), which states that for flight deck crewmembers with documented FAR Part 135 employment experience, "Ground and Flight Training shall consist ofthe Operator Specific modules

... ofthe Basic Indoctrination Curriculum and theRecurrent TrainingModules ofother curriculums [sic] as appropriate." Ex. R-2 at 1; Resp'tPost-Hearing Briefat 8. This demonstrates, according to the Respondent, that at the time Capt. Tarascio was hired and qualified, the carrierhad adopted "a modular approach" to his training and testingrequirements. Resp'tPost-Hearing Briefat 8. It

### follows, says the Respondent, that the February 2005 testing thatInspector Fraher administered was only the earliestmodule ofCapt. Tarascio'srecurrent training and testing. Resp't Post-Hearing Briefat 28. The balance ofthe testing and training was completed at SimCom in March of2005. Id. As Order No. 8400.10 requires, however, as long all the modules are completed within the same three-monthperiod, the testing/training month is deemedtobe the month in which the last module is completed. Resp'tPost-HearingBriefat 12. That month was March 2005. Id. Giving effectto the "grace month" concept built into § 

### l35.301(a) ofthe FARmeans.that Capt Tarascio next neededto be tested no -6-

### later than the end ofApril2006. ld. That mei;lns he was fully qualified onApril 1, 2 and 13, 2006, whenthe flights in question tookplace. Id. So runs Respondent's theory ofthe case. Accordingto Respondent, its theory is supported by an interpretive opinion that its counsel received from Rebecca MacPherson, an attorney with the Operations LawBranch ofthe Office·ofChiefCounsel ofthe FAA. Resp'tPost-Hearing Briefat 30 (citingEx. R-7). Respondent's Counsel had inquired about whether, if recurrent training is administered in modules, the air carrier mustrecord when each element ofthe module is completed, record when each module is completed or make one record when all modules ofthe training are complete. Ex. R-7 at 1. 

### In responding to the question, Ms. MacPherson's September 6, 2006letter attempted to deal with a question that turns outto be very significant in this case: What is the meaning ofthe term "module?" "The modules for Part 135," she responded, "are composed oftwo parts." One part consists ofthe written or oral test elements, and the otherpartconsists ofthe flight training and checking events. Because the ground and flight training elements are distinct and,separate parts, they may be completed at different times. Nevertheless, they comprise a single module. An 

### operator may record when each module is complete or mayrecord when all ofthe modules are complete but is not required to record when each element ofa module iscomplete.

The Respondent's definition ofthe term "module" was further explicated by its expert witness, Richard C. Peck. Mr. 

### Peck has been in the civil aviation field since 1974 and, in 2005, retired after 33 years ofservice withthe FAA. ExR-8. Havingreviewed the Venturatraining manuals, he was ofthe opinion that Ventura followed a modular approach to training and testing. Tr. 257-58. Such an approach is followed when it is difficult to complete all ofthe required training and testing within a relatively briefperiod oftime, Mr. 

### Peck explained. Tr. 258. Much ofthe testingrelated to specific aircraft types must be completed by using check pilots or FAA personnel who have qualified in that type ofaircraft and are approved by the agency to provide the testing. When an operator, such as Ventura, does not employ its ownqualified check pilots and is located atornear an FSDO that itselflacks personnel qualified in the type ofaircraft that the operator wishes to use, it is difficult to schedule testing time with an FAA inspector who is qualified to perform the testing and training that crewmembers may needunder 

### § 135.293 ofthe FAR. Tr. 258. Mr. Pecktestified thatit maytake an operator 

### -7-

### three to six weeks to accomplish all ofthe required training and testing elements. Tr. 259. That, said Mr. Peck, is why OrderNo. 8400.10 allows the training and testingtotake place over a three-month period. Id. Butas long as all the required testing arid training is completedwithin that three-month period, the crewmember's "base" month is set at the month in which the last element is completed, saidMr. Peck. Tr. 262--63. In the case ofCapt. Tarascio, itwas his opinionthatthe first element ofhis testingtookplace on February 3, 2005, Tr. 279-80, andthatthis crewmemberbecame fully qualified (from a testing standpoint) on March 16,2005, whenhe was tested at SimCom, Tr. 277-78; 285. Hence, Mr. Peck concluded, Ventura did not violate§ 135.293(a) byusing Capt. Tarascio as second-in-command ofa Lear jet25 flight inApril of2006, during his "grace" month. Tr. 288. To rebutMr. Peck's testimony, the Complainant sponsored the testimony of its own expert witness. Atthe date ofthe hearing, Roy M. Sees hadbeen employed by the FAA for ten years. He had served four and a halfyears as a Contracting Officer's Technical Representative for Outside Agency Training. Ex. C10. He had also been an instructor atthe FAA's training academy in Oklahoma City, Oklahoma. Tr. 388-90.7 

### It

### was Mr. Sees' opinionthat, as ofthebeginning ofApri12006, Capt. Tarascio was not qualified under§ 135.293 because he had not been fully tested in accordance with subsection (a) ofthat section since February 2005. Tr. 402. Accordingto Mr. Sees,'a pilottrainingprogram has six categories (such as "initial new hire" or "recurrent"), each ofwhichhas five segments (such as "basicindoctrination" or "aircraftgroundtraining"). Tr. 404. Each segment would have one ormore modules-forexample, in the aircraft ground training segment, "aircraft electrical system" or "aircraft fuel system." Id. The only purpose ofauthorizingthe use ofmodular training, according to Mr. Sees, was to facilitate individual FAA approval ofmodules that can be used in connection with several different training programs, i.e., for multiple curricula. Tr. 405. Forexample, the "electrical system" module, once approved for the "initial newhire" category, could also be taught in the "recurrent" category withoutthe agency having to approve it a second time. Id. Hence, it was Mr. Sees' hypothesis that Ventura's adoption ofa "modular" approach to training and testinghad "nobearing" on whether Capt. Tarascio was qualified when he served on the flight deck ofthe April 2007 flights. Id.

7 At the hearing, I ruled, over the objection ofthe Respondent, that Mr. Sees was qualified to testify as an expert on training requirements. Tr. 390-99. The Respondent's initial briefattacked that ruling and again asked me to disqualify Mr. Sees. Resp't Post-Hr'g Br. at 30-36. Jhave**reconsi~ered** my ruling and remain persuaded ofMr. Sees' qualifications based upon his long tenure on the staffofthe FAA. 

### -8-

### According to Mr. Sees, Capt. Tarascio could not have taken his qualifying tests inFebruary 2005, as Ventura claimed. At that time, 

### Mr. Sees noted, all ofthe pilot's training had not been completed. It is absurd, thought Mr. Sees, toclaim· that an airman could successfullycomplete§ 135.293(a) testing before he had completed his training, because the latter precedes the former. Hence, the tests that InspectorFraher gave to Capt. Tarascio must be regarded as the completion ofhis initial training. Tr. 410-12. The March activities at SimCom, said Mr. Sees, were part ofCapt. Tarascio'srecurrent training and testing, which were done eleven months before they were required to be done. Tr. 412. The problem with Ventura's theory, accordingto Mr. Sees, is that the recurrent training in March 2006 did not include testing required by§**135.293(~)(1)** 

### and (a)(4)-(a)(8), since SimCom was not qualified toprovide.that type oftest. Tr. 416. To demonstrate the correctness ofhis view, Mr. Sees noted that the certificate that Capt. Tarascioreceived from SimCom (Ex. C-3) specifically said that this airman had completed a "Recurrentcourse." Tr. 419-20; 432-33. He also citedto an affidavit by Ventura's Director ofOperations, whichhad been filed in support ofVentura's motion for summary disposition. Tr. 414-15. In that affidavit, Mr. Ryder had said that Capt. Tarascio had "completed an initial training program and successfully completed an Airman Proficiency/Competency Checkin accordance with 14 C.F.R. 135.293 in February 2005." Ex. C-8 at 1 (emphasis added). This shows, Mr. Sees testified, that there were two distinct sets oftraining-and-testing curricula. One was for initial qualification, which concluded in February 2005, when Capt. Tarascio was tested by InspectorFraher. Tr. 418-19. The other was begun when Capt. Tarascio wentto SimCom and was concluded in May 2006, when Capt. Tarascio successfully completed his§ 135.293(b) training and testing. Tr. 419-20. Hence, Mr. Sees concluded, Capt. Tarascio was not fully qualified one month earlier, in April 2006. Tr. 416-25. Each ofthese theories is plausible on it& face. Yeteach ofthem suffers from severe problems. In short, this is a close and most difficult case. Theprincipal problem with the Respondent's theory is that it is not rooted in the language ofthe governingregulation. Nothing in the text of§ 135.293(a) supports.the notionthat arequirement for an annual test ofa crewmember'sknowledge really allows a crewmemberto be tested only once in a period of 15 months. Yet, that is the result we would reach ifthe Respondent's theory were adopted. If a crewmemberwere tested onthe first day ofthe year and completed the testing program on March 31, for example, under the Respondent's version ofthe "modular" hypothesis and giving effectto the Respondent's thesis that onlythe last event in the three-month testing-and-training cycle counts in calculatingwhen the next



### -9-

### training-and-testing cycle must takt: place, the crewmerp.ber would not be due for re-testing until the end ofMarch ofthe following year. 'Indeed, ifwe combine the Respondent's view ofhowthe "modular"**hyp~thesis** 

### is applied with the notion ofa one-month "grace" period, the qeadline would extendto the end ofApril ofthe following year. That means that almost 16 months will have elapsed since the crewmember was previouslytested on the material set forth in § 135.293(a). Interpreting a requirement for "annual" tests to allowthatresult constitutes quite a stretch. It is extremelydoubtful that the authors of§ 135.293(a) intendedto permit such a lengthy hiatus. Another, equally serious, problem with Respondent's "modular" hypothesis is thatthe Respondent has failed to define in a satisfactory way what constitutes a "module." Under the Respondent's theory, the non-type-specific subjects on which Capt. Tarascio was tested inFebruary 2005 constituted a "module." The Respondent, however, has pointed to nothing that supports that claim. The fact is that neither ofthe authorities on which the Respondent principallyrelies-Order No. 8400.10 or the Venturatraining manual-'defines eitherthe term "module" or the term "modular." Ofthe two expert witnesses who testified, only the Complainant'switness, Mr. Sees, attempted a definition**of"mod~;~le."** 

### A module, according to him, consists ofa grouping ofsystems all ofwhich have the same general purpose. Avionics, for example, would be a module, as would fuel systems ormeteorology and weather. Butthere.appears to be nojustification for treating the variety ofsubjects specified in§ 135.293(a)(l) and (a)(4)-(8) as a separate module. The opinion ofthe Office ofChiefCol.lnsel, from which Ventura took considerable comfort, defined the term "module" as including all on-the-groundtesting and training; such a definition does not square with the manner in whichthe Respondent is seekingto use the term "module" in this case. We must rememberthat Capt. Tarascio was not a novice whenhe qualified to fly the LearModel 25 onbehalfofVentura. He hadpreviously qualified in that make andmodel ofaircraft athis last employer. Hence, under Ventura'straining manual, he was subject to the "ReducedInitial NewHire Training Curriculum," a program thateliminated some ofthe training (and testing) requirements that would have beenapplied to a newcomer. In this context, itmakes very little sense to talk in terms ofthe training "modules" that would be used in the case ofa brand-new jetpilot. Instead, an experiencednew hire, such as Capt. Tarascio, would be expectedto go through sufficienttraining and testing to assure his new employer that he had retained his skills as the pilot ofa Lear 25. That, one supposes, is what Ms. Fraherthought she was doing when she testedthis individual in February of2005: She was attemptingto ascertainwhether it was safe to allow Capt. Tarascio to



### -10-

### serve as co-pilot on a "proving" flight ofthe new aircraft. There is no indication in the record that the February 3, 2005 check flight was scheduled to complete one ormore "modules" in Capt. Tarascio's recurrent training or testing. A final point here is closelyrelated to the first ofthe problems withRespondent's theory, discussed above. The authorities on whichthe Respondentrelies are, at best, secondary authorities. Order No. 8400.10 is, as wehave noted, a document written for members ofthe FAA's staff. The fact that it is widely known and widely copied in the aviation industry does not transmute it into a definitive interpretation ofa section ofthe FAR adopted with all the dignity and deliberation required by the Administrative Procedure Act. Itcannot alter oreliminate the duty ofa Part 135 carrierto use only crewmembers who have fulfilled the obligation

. under§ 135.293 to "have completed various recurrent training and checking events within 12 calendar months." Order No. 8400.10**~** 

### 603, at 3.343 (June 30, 1991). Under the Respondent's theory ofthe case, the term "12 calendarmonths" would be construedto mean "15 calendarmonths plus 30 or 31 days." The English language cannot be stretchedthat far. Ventura's reliance on the terms ofits training manual to change the unambiguous meaning ofa regulation is equally misplaced. Itis true thatthe training manual ofthis carrierwas initially approve.d by the local FAA FSDO, as is the case with carriertraining manuals generally. But it would be fundamentally inimical to the FAA's mission, and a miscarriage of justice, to allow an air carrierto eliminate its duty to comply with a provision ofthe FAR simplybecause ithas managedto slip some ambiguous language pastthe FAA'sbusy reviewers ofits training manual. Once again, a carriermust comply with the regulations as written, regardless ofwhat its training manual orthe agency'·s "guidance" to its staffmay say. The same thing is true ofopinions emanating from the ChiefCounsel's Office, though in this case, I do not believe that the opinion that we find in Ex. R-7 actually says what the Respondent claims it says. There are also problems with the Complainant's theory ofthe case. For one thing, the language ofthe relevantregulation does not specify thatthe requisite training andtesting must be done in any particular order; nor does the regulation require that a crewmemberwho seeks to pass his annual testingrequirements must do so onthe basis oftrainingrecently received. Ifa pilot wishes to take one or more ofthe tests specified in§ 135.293(a) without first undergoingtraining, there is nothing in the regulation (or anywhere else) toprevent him from doing so. Indeed, one presumes that a pilot, such as Capt. Tarascio, who had been flying the LearModel 25 on virtually a daily basis would be fully competentto pass tests on his knowledge ofthe matters set forth in paragraphs (a)(1)-(8) without much addi- -11-

### tiona! training. In short, 

### Mr. Sees' view thatrecurrent training must necessarily precede recurrent testing seemsto me to be mistaken. The fact remains, however, that both OrderNo. 8400.10 and the Chief Counsel's September 6, 2006 opinion speak in tenus ofa three-monthperiod in which the tests and training exercises mentioned in§ 135.293 maybe completed. They say, moreover, that the date on which the ainnan completesthetraining-andtesting cycle starts his orher annual period for periodic re-qualification. Howcan this be squared with the clear language ofthe**~egulation** 

### itself, which contemplates thatre-qualification shall take place once every 12 calendar months and, except for the "graceperiod" allowed under§ 135.301, at no later time? The answer, I believe, lies in the fact that the ainnen to whom these prescriptions apply consist of two distinct groups. There are, on the one hanli, individuals who have not previously qualified in the type ofaircraft on which they are being trained and tested. For such a person, 

### Mr. Peck's explanation ofthe three·-month period for training and testingrings true. As he testified, § 135.293 imposes a burdensome and time-consuming set of requirements, which may take considerable time to complete, even for the most talented ofcandidates. Hence, these individuals are given a reasonable period of time-three months in this case-to fulfill all ofthe requirements. Such an allowance would also be appropriate for someone whose qualifications in the particular type ofaircraft had lapsed through lack ofexperience flying thattype or from some other cause. That person would necessarily have to start the training-and-testing cycle from square one and would need up to three months to complete it. By contrast, a crewmember such as CaRt. Tarasciopresents an entirely different case. At all relevant times, he was, and continues to be, employed in piloting the LearjetModel 25 on a daily basis. He should be expectedto complete training and testing onthe subjects set forth in§ 135.293 in a relatively briefperiod oftime. He did not need a three-month period in whichto fulfill all oftherequirements, includingthose app)icable to a specific aircraft type. Proofofthis is that Capt. Tarascio, based on his experience in the Learjet 25, was able to satisfy InspectorFraher concerninghis competence andknowledge injustone "proving" flight and successfully completed his SimCom training andtesting in only two days. 8 

### For a pilot as experienced and well qualified as Capt. Tarascio, 

### Mr. Peck's notion that the training-and-testing process is so arduous and attenuated as to require three months from beginningto end simply makes no sense. It is equally

8 The record shows that his Airman Competence Proficiency Check took place on March 15, 2005,Ex.C-I at 3, and that he was issued his course completion certificate on March 17, 2005,Ex. C-3. 

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### nonsensical, inmy view, to regard Capt. Tarascio's successful completion ofthe § 135.293 tests in February of2005 ashaving been accomplished in March. Respondent's claimthat Capt. Tarascio's testingunder§§ 135.293(a)(1) and (a)(4)- (8) should beregarded as having been accomplished in March, rather thanFebruary when it actually took place, is rejected. Forthese reasons, I conclude that, as a technical matter, Capt. Tarascio was out oftime when he made the three flights in question in April of2006. His oneyear-plus-a-grace-month hiatus for testing under§ 135.293(a)(l) and (a)(4)-(8) had expired at the end ofMarch 2006. As ofApril I, 2006, he was no longer qualified under§ 135.293(a), and consequently Venturahasbeen shown by a preponderance ofthe evidence to have used an unqualified second-in-command pilot on three Part 135 operations in early April 2006. This brings us to the question ofthe appropriate sanction to be assessed against the Respondent in this case. The FAAhas introducedvirtually no evidence into the record onthe subject ofthe sanction. We also know thatthe agency's complaint sought a civil penalty of$15,000 based onthe chargethatVentura had violated both subsection (a) and subsection (b) of§ 135.293 ofthe FAR. The charge ofviolating subsection (b), which deals with requirements for crewmember training was withdrawn, leaving the Respondent charged with violating only subsection (a), which deals withtesting ofcrewmembers. Nevertheless, the amount ofthe penaltythe FAA sought was notreduced. When asked about this apparent discrepancy, FAA witness Rogers, the person who initiated the case against Ventura, said that he had recommended that the claim against the carrier should amount to $33,000, or $11,000 perviolation. He soughttojustify this by pointingto the FAA's Sanction Guidance, Order No. 2150.3B. It turned out, however, that InspectorRogers was working with a version ofOrderNo. 2150 that did not exist when the alleged violations took place.9 

### Hence, the version that the FAA had proffered for the record was notreceived in evidence. At the time this rather embarrassing disclosure occurred, I offered to allow counsel for the Complainant to submit the correctversion ofOrderNo. 2150, or whatever sanction guidance the FAAhad in force in April 2006, as a late-filed exhibitor to entertain a request totakejudicial notice ofits contents. He agreed to locatethe document andprovide it for the record onthat basis. Buthe never did so. Instead, he attached itto his post-hearingbrief, which was far too late in the pro9 OrderNo. 2150.38 carries an issue date ofOctober I, 2007. 

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### ceeding and deprived the Respondent ofthe opportunity to examine it and refer to it in its post-hearing initial brief. Hence, I am rejecting the Complainant'sbelated proffer ofOrderNo. 2150. As \\result, th.e record is devoid ofevidence in support ofthe $15,000 claimedby the FAA, orany other amount, as the appropriate civil penalty. The text ofthe relevant statute, 49 U.S.C. 

### § 46301, supplies the essential criteria for the assessment ofcivil penalties in cases such as this one. Subsection (e) of§ 46301 provides that, in determining the amount ofthe civil penalty, the following matters shall be considered: "(1) the nature, circumstance, extent, and gravity ofthe violation; (2) withrespect to the violator, the degree ofculpability, any history ofpriorviolations, the ability to pay, and any effect on the ability to continue doing business; and (3) other matters thatjustice requires." This is one ofthe rare cases in which the last criterion is, in myjudgment, the most significant. The record ofthis case makes it abundantly clearthat Ventura, in deciding how to deal with Capt. Tarascio's qualifications, was faced with an ambiguous regulatory situation. For reasons that are not entirely clear, the FAA hadpublished "guidance" that was virtually at war with the text ofits regulation. While § 135.293 told the aviation communitythat flight deck crewmembers must betrained andtested on an annual basis,

## '0, another section ofthe FAR, some distance away from§ 135.293, went onto say that the annual test orflight checkrequirement canbe fulfilled once every B months. Then, to add further ambiguity to the requirement for annual testing, the FAApublished § 1 0 ofOrderNo. 8400.10, which appears to say that the requirement for an annual test ofpiloting skills (meaning a testevery 13 months) can be met in certain circumstances by "adopt[ing] a modular approach," performingthe training, the testing, orboth, over a three-monthperiod and then treating all ofthe testing as ifit hadbeen done on the last day ofthatthree-month period. To add an additional enigma tothe regulatory program, the agency's chiefcounsel then issued an interpretationwhich can be construed to extend the annual training-and-testing cycle to some 15 months! Is it any wonder that a relatively small carrier, such as Ventura, was confusedby what it must do in orderto assure that its flight crevys were at all times fully qualified underthe FAR? Canthis Respondent be faulted for following the guidance ofits own, FAA-approvedtraining manual? Inthese circumstances it seems unfair and inequitable to fasten a heavy financialliability upon Ventura because it read the various "guidance" documents

10 Admittedly, in somewhat confusing terms: "since the beginning ofthe 12th calendarmonth before that service" is hardly apellucid way ofsaying**'~at** least once ayear.' 1 But it's clear enough. 

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### published and approved by the FAA in a manner that seemedto require the least amount ofnew training and testing ofCapt. Tarascio that could be defended under the existing authorities. In the final analysis, as we have seen, Ventura made the wrong guess, but it can hardly be faulted for having to guess; that is whatthe regulatory atmosphere required ofit. It

### is also significant, in my view, that Capt. Tarascio was at all relevant times knowledgeable and skillful enough to pass all ofthe tests set out in § 135.293(a). We have in the record ofthis case all ofthis airman's training records. They show, without exception, that he never failed to pass a test ofhis knowledge and flying skills. His priorexperience had equippedhim with thatknowledge and those skills and, so far as the record shows, he never lost them. Hence, the gravity ofVentura's violation seems rather low, in that the safety ofthe public was never at risk during the few days early in April 2006 when Capt. Tarascio acted as second-incommand ofthree ofVentura's flights. There is no evidence that Venturahad a history ofprior violations ofthe FAR. The FAA did not attempttointroduce such evidence, and because it is the keeper oftherecords ofprior violations, I concludethat its failure toproffer such evidence means that there were no such priorviolations inVentura's aviation history. Finally, the record indicates that Ventura took steps to get Capt. Tarascio fully tested in accordance with the views ofInspectorRogers ofits local FSDO as soon as it learned that Rogers believed that Tarascio had exceeded the time limit for his annual testing and training. According to Inspector Rogers's testimony, he examined Capt. Tarascio's training records in May 2006. Exhibit C-1 shows that the Inspector administeredthe relevant tests to Capt. Tarascio on May 8, 2006. This tends to demonstrate thatVentura's violation was neither extraordinarily blameworthy, intentional nor deliberate.

,, 

### Inthese circumstances, I 

### concludethat a nominal civil penaltywill serve the interests of justice. In

### considerationofthe foregoing, and subjectto appeal tothe Administrator as provided in§ 13.233 ofthe Rules ofPractice andProcedure, 14 C.P.R. § 13.233, ITIS ORDEREDthat- , I. 

### Respondent Ventura Air Services, Inc. is liable to the United States of America as represented by the Federal Aviation Administration for a civil penalty in the amount ofone dollar ($1.00); and

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### 2. Respondent Ventura Air Services, Inc. shall pay the sum ofone dollar ($1.00) to the Federal Aviation Administration forthwith.

# ~~-iL IsZ.Benkin Administrative Law Judge (Note: This decision may be appealed to tht1 Administrator ofthe FAA. The Notice ofAppeal must be filed not laterthan 10 days after service oftbis decision (plus five additional days, ifthis decision is served by mail). 14 C.F.R. §§ 13.233(a), 13.21l(e). The appeal must be perfected with a written briefor memorandum not laterthan 50 days after service ofthis decision (plus five additional days, ifthis decision is served by mail). 14 C.F.R. §§ 13.233(c), 13.211(e). The Notice ofAppeal and briefor memorandum must be either (a) mailed to theFederal Aviation Administration, 800 IndependenceAvenue, S.W., Washington, DC 20591; Attention: Hearing Docket Clerk, AGC-430, WilburWrightBuilding-Suite 2Wl000, or (b) delivered personally orvia expedited courier service to the Federal Aviation Administration, 600 Independence Ave., S.W., WilburWrightBuilding-Suite 2WlOOO, Washington, DC 20591, Attention: HearingDocket Clerk,AGC-430. 14 C.F.R. §§ 13.233(a), 13.210(a)(2), (1). A copy ofthe Notice ofAppeal and briefor memorandum should also be sent to counsel for the FAA in this proceeding. 14 C.F.R. § 13.233(a).]

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