UNITED STATES DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

WASHINGTON, DC 

In the Matter of: VENTURA AIR SERVICES, INC. 

FAA Order No. 2012-12 

Docket No. 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 

by using a pilot on three revenue flights when the pilot had not taken 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 argued that (1) the ALI's 

findings of fact were not supported by a preponderance of the evidence and each conclusion of 

law was not made in accordance with applicable law, precedent and policy, (2) Section 

135.293(a) is void for vagueness, and (c) the ALJ erred in admitting the FAA's rebuttal witness's 

expert testimony. The FAA, on appeal, argued that the ALJ should have found that Ventura also 

1 Generally, 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 of the 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 of Sections 135.293(a)(l) and (4)-(8). 

4 A two-day hearing was held on April 7-8, 2009. 
violated Section 91.13, and that a $15,000 civil penalty is consistent with agency policy as 

applied to the facts of this case. 

As explained in this decision, Ventura's appeal is denied. This decision holds that the 

preponderance of the evidence supports the ALJ's decision that Ventura used a pilot who was 

not current on his Sections 135.293(a)(l) and (4)-(8) testing. Further, Ventura's arguments 

regarding the admission of the 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 13 5 operations are required under 

14 C.P.R. §§ 135.293(a)(l)-(8)5 to pass initial and recurrent oral or written tests in eight specified 

areas. Sections 135.293(a)(l) and (4)-(8) require oral or written testing of a pilot's non-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 of a pilot's knowledge about the particular type 

of aircraft that the pilot will operate for the air carrier. In addition, under Section 13 5.293 (b), 

pilots are required to take competency tests, commonly referred to as "flight checks" in the 

aircraft or class or type of aircraft that they will fly for the operator. 6 

Regarding the timing ofthese oral or written 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 of the 1 z!h calendar month before that service, that pilot has passed" a written 

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

6 See Appendix II for the full text of Section 135.293(b). 

2 
or oral test and a flight check. This requirement must be read in conjunction with Section 

135.30l(a), which provides as follows: 

If a crewmember who is required to take a test or a flight check under this part, completes 

the test or flight check in the calendar month before or after the calendar month in which 

it is required, that crewmember is considered to have completed the 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), if a pilot passed a written or oral 

test on all the areas covered by Section 135.293(a) in February of Year I, the pilot could satisfy 

Section 135.293(a)'s recurrent oral or written test requirement by completing a knowledge test 

no later than the end of the "grace month," March of Year 2. (See Tr. 39, 42.) In this example, 

February would be the "base month" and, under Section 135.301, if the pilot comple~ed the 

recurrent testing during the following January, February, or March of Year 2, the testing would 

be considered as accomplished in February of Year 2. (Tr. 42.) This 3-month period, comprised 

of the base month, the month before and the month after the base month of Year 2, is referred to 

as the "eligibility period." (See Respondent's Exhibit I at I (FAA Order No. 8400.10, ~ 603); 

Letter by FAA Assistant Chief Counsel Rebecca MacPherson to Gregory Winton, Esq., dated 

I 

September 6, 2006, Respondent's Exhibit 7 at 2.) 

FAA Inspector Mark Rogers testified at the hearing that it is common for Part 13 5 

operators to establish separate base months for the Sections 135.293(a)(l) and (4)-(8) (nonaircraft specific) portions of the oral or written test, the Sections 135.293(a)(2) and (3) (aircraftspecific) portions of the oral or written test, and the Section 135.293(b) flight check. (Tr. 118-

119.) 

In 2004, Ventura, the holder of an air carrier certificate, hired Nicholas Tarascio to serve 

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

3 
for 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 in the following chart: 

DATE . SUBJECT- AIRCRAFT INSPECTOR! 

§ 135.293 CHECK AIRMAN 

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 differences 7 (illegible signature) 

atSIMCOM 

04/18/2005 Lear 55 differences Check Airman 

' Santiago at 

SIMCOM 

05/08/2006 (a)(l) & (4)-(8) Not Applicable Inspector Rogers 

According to Ventura's flight logs, Tarascio served as second in command on revenue 

flights under Part 135 on April 1 and 2, 2006 in a Lear 25 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.) 

7 Differences training is defined as "the training required for crewmembers who have qualified 

and served on a particular type aircraft, when the Administrator finds differences training is necessary 

before a crewmember serves in the same capacity on a particular variation of that aircraft." 14 C.F.R. 

§ 135.321(a)( 4). Tarascio testified that Ventura was going to operate a Lear 25, not a Lear 35, aircraft. 

(Tr. 190.) Hence, after his Lear 35 simulator recurrent training 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 of the oral or written test. (Tr. 31-32, 37-38.) 

4 
Rogers testified that before administering the test, he reviewed Tarascio's training 

records and did not notice anything "abnormal."' (Tr., 38.) However, he noticed "an area of 

discontinuity" in the test records because he could find no records to show that Tarascio had 

completed an oral or written test under Sections 135.293(a)(l) and (4)-(8) since he was tested by 

Inspector Susan Fraher in February 2005, approximately 15 months earlier. (Tr. 29, 38-39.) 

Rogers testified that he asked Ventura's director of operations, Gould Ryder, whether there were 

any records to show that Tarascio had completed the non-aircraft specific knowledge test by the 

end of March 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 of the FAA Form 8400-3, that a "new base month [is] established for 135.293(a)(l), (4-8) 

only." (Complainant's Exhibit 1 page 6; Tr. 64.) 

The FAA argued that Tarascio was overdue for the non-aircraft specific portions of the 

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 of the test again no later than the last day of March 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 test records that Tarascio had completed a recurrent test as 

required by Sections 135.293(a)(l) and (4)-(8) prior to the three flights in April2006. (Tr. 39, 

44, 47, 75, 113.) 

9 Rogers testified, based upon his review of the 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 pertaining to 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 

argument was based on its interpretation of guidance in FAA Order No. 8400.10. A review of 

training programs implemented by Part 135 carriers generally and Ventura's training program10 

in particular is necessary to 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 any person serve, as a crewmember in 

operations under this part unless that crewmember has completed the appropriate initial 

or recurrent training phase of the training program appropriate to the type of operation in 

which the crewmember is to serve since the beginning of the 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 written tests 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 pilot training12 and testing, (Tr. 398-399), te~tified about training programs. He 

testified that a carrier's pilot training program" is divided into six categories, including initial 

new hire and recurrent training. Each category is divided into curriculums for each required 

10 A certificate holder must obtain initial and·final FAA approval of a 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 at the FAA Academy at the Mike Monroney Aeronautical Center in 

Oklahoma City, Oklahoma. (Tr. 388.) Prior to his assignment at the FAA Academy, he served as the 

supervisor of the Scottsdale, Arizona Flight Standards District Office (FSDO). He testified that he has 

taught all of the FAA Academy courses, but primarily those related to air carrier training programs, pilot 

testing, proving flights and air carrier certification. (Tr. 388-391.) 

13 See Appendix III for definitions of the following terms as set forth in FAA Order 8400.10: 

training program, modular training, categories of training, curriculum, curriculum segment, training 

module, element, element, and checking and qualification module. 

6 
crewmember for a particular type 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 of any curriculum. 

(Tr. 431.) Curriculum segments are divided into modules," which are composed of elements and 

events." 

Section 8 of Ventura's training manual describes the Qualification Segment for Ventura 

pilots. (Respondent's Exhibit 9.) Completion "of all the curriculum segments as listed for the 

initial new hire curriculum" is a prerequisite for enrolling in the 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 of Sections 135.293(a) and (b) respectively. (Respondent's 

Exhibit 9 at 2-4.) 

According to Ventura's training manual, Ventura may use a "reduced initial new hire 

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 of the 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 each type of aircraft for each crewmember required for that type 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 . 

7 
Ventura's training manual also stated that for the reduced initial new hire training curriculum, 

"Ground and Flight Training shall consist of the Operator Specific modules (BI0-1 through 

BI0-3) of the Basic Indoctrination Curriculum and the Recurrent Training Modules of other 

curriculurn.s as appropriate." (Respondent's Exhibit 2 at 1, emphasis added.) 

Ventura's witnesses, Tarascio and Richard Peck, whom the ALJ found qualified as an 

expert in air carrier operations,17 testified that Ventura hired Tarascio with credit for his past 

training and experience at Air East Management, and used the reduced initial new hire 

curriculum to train him. (Tr. 180-181, 288-291.) 

Peck testified that operators usually provide the following in-house training: Section 

135.293(a)(l) and (4)-(8) training, including weight and balance, logging duty times, filing flight 

plans, and first aid. He explained that operators usual)y send their pilots to a Part 142 training 

center classroom for aircraft-specific Sections 135.293(a)(2) and (3) training. He testified that 

the Part 142 training center classroom has "all kinds of training aids 18 and they teach the pilot 

how the hydraulics work, the electrical systems, the air conditioning, and so on." (Tr. 275.) He i '\ 

testified that operators also provide flight training at the Part 142 training center, some of which 

is taught in a classroom and some of which 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 

of employment, 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 of operations for Ventura but no 

mention of this position was made in his testimony at the hearing. He did not claim to testify based upon 

personal knowledge of the events. 

18 See 14 C.P.R.§ 61.l(b)(7) for the definition of"flight training device." 

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

8 
Under its operations specifications dated March 3, 2005, Ventura was authorized to send 

its pilots to SIMCOM, a Part 142 training facility located in Orlando, Florida, for certain training 

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 

Ventura was authorized to 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 of the Air Carrier Operations Inspector's Handbook, FAA 

Order 8400.10, in effect at the time. Paragraph 603 of this order, provided:" 

A. Training/Checking Month. 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 

month period, the month in which the qualification curriculum segment is completed is 

then considered to be that crewmember's training/checking month. If the training has 

been completed within the 3-month period, the operator may make a single record ofthe 

entire curriculum without noting when individual events occurred. Subsequent 

scheduling of recurrent training may then be based on the training/checking month ..... 

(Respondent's Exhibit 1.) 

Based on this guidance, Peck testified that if a pilot completed the Sections 135.293(a)(1) 

and (4)-(8) test on January 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 prior to the approval of these 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 Order No. 8400:10, and found that the pertinent language is 

practically identical in the two orders. (Tr. 261.) · 

9 
Section 135.293(b) flight test on February 4, the pilot's base month for recurrent testing for the 

entire Section 135.293 test/check would be February because the pilot completed the 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.) At that point, 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 or the Section 135.293(b) flight check that Fraher 

administered to Tarascio on that 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 

new hire training program. (Tr. 226, 245-246.) Consequently, according to Ventura's witnesses, 

Tarascio completed the Section 13 5.293 checking module of his reduced initial new-hire training 

program in March 2005- not in February 2005. (Tr. 225.) Therefore, Ventura maintains, March 

was T arascio' s base month. 22 

Tarascio testified that he "was under the 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 of initial or recurrent training. 

10 
testified that he did not have 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 upon his review ofTarascio's records, Peck testified that Tarascio completed the 

first phase of his 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 of his training and the Section 

135.293 checking module at SIMCOM with the flight check on March 16. (Tr. 279, 284.) Peck 

testified that because Tarascio completed the 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 of the test and check with Fraher]. (Tr. 284.) "And he 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 of April 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 not violate Section 135.293(a) when it used Tarascio 

as second in command in April2006. (Tr. 288.) He opined further that Ventura "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 testified that a check ride should not be given before a pilot has completed all of his 

training. (Tr. 281.) However, according to Peck and Tarascio, Tarascio took the check with 

Fraher in February 2005, although he had not completed his 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 of flights- "proving runs"" - in that aircraft 

23 Section 119.33(c) provides in part that "[e]ach applicant for a certificate under this part and 

each applicant for operations specifications authorizing a new kind of operation that is subject to 

11 
with FAA inspectors on board to demonstrate that it could operate the Lear 25 safely. (Tr. 131.) 

Peck testified that the FAA would count the time spent on a check ride as part of the 25 hours of 

required proving runs. (Tr. 347.) 

' On rebuttal, Sees testified, based upon his review of the documentary evidence that had 

been introduced at the hearing and that was included in the 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 in February of 2005. He 

received a partial check in March of 2005. He did not receive the 293(a)(l) and ( 4)-(8) 

check at any time after February of2005 until May of2006. 

(Tr. 402-403.) 

Sees testified that the Tarascio's checking records showed that Tarascio completed the 

qualification segment in February 2005, when he successfully completed the Section 135.293(a) 

test and the Section 135.293(b) flight check. He testified that Fraher should have checked 

Tarascio's records and should not have given him the Section 135.293(a) test and Section 

' 

135.293(b) flight check unless Tarascio haci completed all of his training. (Tr. 418, 475.) 

Consequently, he assumed that Tarascio had completed all of his prerequisite training before the 

check ride on February 3, 2005. (Tr. 443, 476-477.) He testified that "there is no mechanism for 

reaching back to training and testing that's already been completed and adding or cherry-picking 

portions of that into the next month's training that's being conducted." (Tr. 418.) 

§ 121.163 or § 13 5.145 of this chapter shall conduct proving tests as authorized by the Administrator 

during the application process for authority to conduct operations under part 121 or part 135 of this 

chapter. 14 C.F.R. § 119.33(c). 

12 
II. 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 of a Lear 25. (Initial 

Decision at 3.) 

3. Ventura used its "Reduced Initial New Hire 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 test him 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 's testing under 

Sections 135.293(a)(l) and (4)-(8) should be considered as having been accomplished in March 

2005, rather than in February 2005, when Tarascio actually took that test. (Initial Decision at 12-

13.) Regarding Ventura's theory of the case, the ALJ wrote, "The principal problem with the 

Respondent's theory is that it is not rooted in the language of the governing regulation." (Initial 

Decision at 9.) He wrote: 

13 
' Nothing in the text of§ 135.293(a) supports the notion that a requirement for an annual 

test of a crewmember's Imowledge really allows a crewmember to be tested once in a 

period of 15 months. Yet, that is the result we would reach if the Respondent's theory 

were adopted. If a crewmember were tested on the first day of the year and completed 

the testing program on March 31, for example, under the Respondent's version of the 

"modular" hypothesis and giving effect to the Respondent's thesis that only the last event 

in the three-month testing-and-training cycle counts in calculating when the next trainingand-testing cycle must take place, the crewmember would not be due for re-testing until 

the end of March of the following year. Indeed, if we combine the Respondent's view of 

how the "modular" hypothesis is applied with the notion of a one-month "grace" period, 

the deadline would extend to the end of April of the 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 

that result constitutes quite a stretch. 

(Initial Decision at 9-1 0.) 

The ALJ also found that Ventura's theory of the 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 of a 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 held that Tarascio was out of time when he made the three flights in April2006, 

because "one-year-plus-a-grace-month hiatus for testing under§ 135.293(a)(l) and (a)(4)-(8) had 

expired at the end of March 2006." (Initial Decision at 13.) Hence, he held, Ventura used 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: 

14 
ALJ 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 of fact were supported by a preponderance of the reliable, probative 

and substantial evidence, and his conclusions of law were made in accordance with the 

applicable law, precedent, and policy. 

Although the issue in this case is relatively easy to describe, the necessary analysis is 

more difficult. Simply put, pursuant to 14 C.P.R.§§ 135.293(a) and (b), Tarascio was required 

to complete certain testing and checking every 12 months. The 12-month requirement of Section 

135.293, however, is modified by Section 135.301, which allows a test taken either the month 

before or the month after (the "grace month") to be deemed as having been taken during the 

month it is due (the "base month"). Further, paragraph 603B of FAA Order No. 8400.10, the 

Order that implements the regulations, provided that even if the 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 of testing is relatively straight forward in circumstances where the base 

month or the "checking month" for a particular pilot is already established because the 

[T]he FAA had published "guidance" that was viitually at war with the text of its regulation. 

While§ 135.293 told the aviation community that flight deck crewmembers must be trained and 

tested on an annual basis, another section of the FAR ... went on to say that the annual test of 

flight check requirement can be fulfilled once every 13 months. Then, to add further ambiguity to 

the requirement for annual testing, the FAA published§ 10 of Order No. 8400.10, which appears 

to say that the requirement for an annual test of piloting skills (meaning a test every 13 months) 

can be met in certain circumstances by "adopt[ing] a modular approach," performing the training, 

testing, or both, over a three-month period and then treating all of the testing as if it had been 

done on the last day of that three-month period. To add an additional enigma to the regulatory 

program, the agency's chief counsel then issued an interpretation which can be construed to 

extend the annual training-and-testing cycle to some 15 months! 

15 
determination of when testing "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 by the Part 135 certificate holder, here Ventura, and who does not have an established 

checking month. On their face, the regulations are not ambiguous with respect to the 

requirement to have accomplished the required testing every 12 months (with a grace period). 

The ambiguity arises from paragraph 603A(1) of FAA Order No. 8400.10, regarding the 

establishment of the "training/checking" month. Paragraph 603A(l) of that Order advised that 

"[w]hen a crewmember completes an initial ... training program within a 3-calendar month 

period, the month in which the 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 without noting when individual events occurred." If the training program, 

including the qualification segment, extends beyond three months, the Order advises, the 

certificate holder must "schedule the accomplishment of recurring 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. 

In the present case, there is no question that Tarascio took a Section 135.293(a) and (b) 

test with Inspector Fraher during February 2005. 25 By itself, that fact would compel the 

conclusion that Tarascio would be required to complete the same testing again by the 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 a V-I cut is frivolous because, as Inspector Sees explained, a V-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 takeoff with a powerplant failure only in a multiengine aircraft but this "may 

be tested by alternative means if the performance characteristics of the aircraft make this event 

hazardous." 

16 
compliance for any flights Tarascio flew as second in command through the end of March of the 

following year, but would not be within the regulations for any flights, such as the ones in 

controversy here, in April of the 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. Ventura points to the 

language of the FAA's Order in asserting that because Tarascio's training and testing extended 

into March, it is March, not February, which should be considered the base or checking month. 

If that were the case, then Tarascio's flights in April were within the grace period. 

It is not necessary to parse the potential conflict between the regulations and the FAA 

order in this case because Ventura did not demonstrate that Tarascio's training and testing in 

February and March were part of the same curriculum, and because even if they were part of the 

same curriculum, Ventura did not prove that the entire training program- start to 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 of the evidence supports a determination that February was Tarascio's checking 

month for those sections, and consequently, that the flights he made in April 2006 were after the 

expiration ofthe eligibility period for Section 135.293 testing. 

Ventura failed to offer sufficient proofthat Tarascio 's "training program" was limited to 

three months or that his initial training program was not completed until after he attended 

training at SIMCOM. Peck's testimony that everything was completed within 6 weeks referred 

only to the time between the tests with Fraher and at SIMCOM. Ventura never presented a 

comprehensive explanation ofTarascib's training or when such training began. Ventura's only 

fact witness was Tarascio, who testified that he took the test with Fraher on February 3, 2005, 

17 
after completing the basic indoctrination training. Tarascio, however, did not provide the date(s) 

of his basic indoctrination training or explain how long before the February 3, 2005, test his 

basic indoctrination training occurred. Peck had no personal knowledge ofTarascio's training. 

His testimony was based on training records. Ventura did not introduce any ofTarascio's 

training records. The training records .might have shown the dates on which Tarascio started and 

completed the initial or reduced initial new hire training, depending upon how Ventura kept its 

records and how long it took Tarascio to complete that curriculum. If Ventura only recorded the 

date on which Tarascio completed the initial or reduced initial new hire 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." Ventura needed a fact witness, such as the 

chief pilot or the chief operations officer, to testify about how the operator kept its training 

records generally and Tarascio's training records, in p~rticular, and to explain what training, 

testing and checking Tarascio completed on what dates. However, no one from Ventura's 

management testified. 

Although not dispositive ofth~ issue of how long 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 of a "training program" longer than the threemonth period described in FAA Order No. 8400.10. 

Further, the preponderance of the evidence does not support Ventura's theory that 

Tarascio had not completed 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 and test before he completed his Part 135 training because he 

18 
needed to participate in the proving runs. To prove this theory, Ventura needed to introduce the 

company's training records and the testimony of a 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 of the proving runs. 

Inspector Fraher should not have administered the complete test and flight check under Sections 

135.293(a) and (b) respectively to Tarascio if he had not completed his required training. Also, 

proving flights are governed by 14 C.P.R. § 119.33( c), 26 (Tr. 411), and therefore, Tarascio should 

not have flown on any proving runs (and Ventura should not have used him) until he had 

completed his Part 135 training. Since the evidence, in particular, the FAA testing forms, 

supports a finding that Tarascio completed his training, testing and checking for the initial or 

reduced initial new-hire curriculum on February 3, 2005, then any training and Sections 

135.293(a)(2) and (3) testing and Section 135.293(b) checking he took in March 2005 was part 

of another curriculum. Consequently, Tarascio's March 2005 testing and checking could not be 

combined with February testing 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 of its logic, depth and persuasiveness. Griffin 

Avionics, FAA Order No. 2007-9, at 10, n.l6 (August 2, 2007); Stambaugh's Air Service, FAA 

Order No. 2001-7 (May 16, 2001); Metcalf, FAA Order No. 1993-17 at 6 (June 10, 1993). 

Peck's expert testimony that Tarascio's training and testing in February and March 2005 were 

part of the same curriculum was not persuasive. Despite his claims that he had thoroughly 

examined Tarascio's records, he was unable to testify about when Tarascio was hired by Ventura 

26 Section 119.33(c) provides in pertinent part that "[all proving tests must be conducted under the 

appropriate operating and maintenance requirements of part 121 or 13 5 of this chapter that 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 of this chapter, when conducting proving tests." 

19 
and 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 "modular training," "training 

module" and "checking and qualification module" are defined in the FAA Order No. 8900.1, and 

had the same definitions in its predecessor, FAA Order No. 8400.1027 but Peck showed no 

familiarity with these definitions. In contrast, the description of a modular training program, 

including curriculums, segments, modules, elements and events, given by Inspector Sees was 

consistent with the definitions of these terms in the FAA Orders. (See Appendix III.) Further, 

Peck's testimony was unpersuasive in light of his incorrect testimony that proving flights are 

conducted under Part 91 and that Tarascio's flight test with Fraher was incomplete. 28 

In light of the 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 

although he did not undergo 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 argued that the ALJ should not have accepted Sees as an expert witness in this 

case. According to Ventura, Sees's testimony 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 after the speed ofV -1" while "[y]ou are 

still on the runway." (Tr. 283-284). However, a V-1 cut is not required under Ventura's training manual, 

which provides that takeoff with powerplant failure in a multiengine aircraft "may be tested by alternative 

means if the performance characteristics of the aircraft make this event hazardous." (Respondent's 

Exhibit 9 at page 8-3.) See testimony oflnspector Sees at Tr. 444-447, and 449-500. 

20 
In Kumho, the Supreme Court held that trial judges were required under Fed.R.Evid. 702 

to determine whether expert opinion testimony based upon technical or other specialized 

knowledge was sufficiently reliable to admit. Previously, in Daubert v. Merrell Dow 

Pharmaceuticals, Inc., 509 U.S. 579 (1993), the Court had held that trial judges were required to 

perform such a "gatekeeping" function regarding scientific expert testimony. The Court in 

Daubert gave examples of factors for trial judges to consider including whether a theory or 

technique can be tested, has been subjected to peer review and publication, has a high known or 

potential error rate, and has been generally accepted with the relevant community of experts. 

In Kumho, the Court considered whether the Daubert factors should be considered by 

trial judges regarding technical experts. The Court held that it 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 of the 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 by the relevant community of experts 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 of Evidence govern the admission of evidence in jury trials, 

ALJs in agency proceedings are not bound to follow those rules. Bennett v. NTSB, 66 F.3d 1130, 1137 

(1 o'h Cir. 1995). "Agencies relax the rules of evidence because they believe that they have the skill 

needed to handle evidence that might mislead a jury." Peabody Coal Company v. McCandless, 255 F.3d 

465 (7'h Cir. 200l)(referring to Richardson 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 whether to admit expert evidence, they are not required to follow 

the tests for exclusion of expert testimony set forth in Kumho or Daubert either. See e.g., Bayliss v. 

Barnhart, 427 F.3d 1211 (9'h Cir. 2005) stating that the "Federal Rules of Evidence do not apply to the 

admission of evidence in Social Security administrative proceedings" and because Daubert and Kumbo 

rest upon an interpretation of Rule 702, neither decision governs the admissibility of evidence 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 not follow.) 

21 
evidence may be received but the agency as a matter of policy shall provide for the exclusion of 

irrelevant, immaterial or unduly repetitious evidence." 5 U.S.C. § 556(d). Section 13.222(b) of 

the FAA's Rules of Practice in Civil Penalty Proceedings, 14 C.P.R.§ 13.222(b) similarly 

provides that an ALJ "shall admit any oral, documentary, or demonstrative evidence introduced 

by a party but shall exclude irrelevant, immaterial, or unduly repetitious evidence. Inspector 

Sees's testimony 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 of the regulation," it did not have fair 

warning ofthe rule's requirements. Hence, Ventura urges, the Administrator should reverse the 

ALJ's initial decision and dismiss this case. (Appeal Brief at 23, 25.) 

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

person of what is commanded or prohibited or that encourages arbitrary and discriminatory 

enforcement is unconstitutional because it violates due process. Trans States Airlines, Inc., FAA 

Order No. 2005-2 at 9-10 (March 9, 2005). When evaluating a void for vagueness argument, a 

court will require only a reasonable degree of certainty, and will require less precision for a 

regulation that does not govern First Amendment activities. Id., citing Throckmorton v. National 

Transportation Safety Board, 963 F.2d 441, 445 (D.C. Cir. 1992). The Administrator has 

3

° Finally, Ventura argued that "the circumstances of his [Sees's]late involvement in this case 

casts a large dark shadow over the logic and depth of his testimony," and, therefore, "his testimony should 

be disregarded." (Appeal Brief at 31.) Such hyperbole is unpersuasive and unwarranted. While the FAA 

did not inform Ventura that 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.) 

22 
declined to consider certain constitutional challenges, such as a challenge to the rules of practice 

as a whole, because a Federal Court of Appeals is the appropriate forum for such appeals. 31 

Continental Airlines, FAA Order No. 1990-12 at 6 (April25, 1998). The Administrator has 

considered certain claims of vagueness to ensure that a regulation allegedly violated is defined 

with a sufficient degree of specificity so as to support the imposition of a punitive sanction. 

American Airlines, 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 if they have not, within the past 

twelve calendar months, received a 135.293(a) and (b) test and 135.301 specifies that 

there is a grace month period that ifthey took that test in the eleventh or thlrteenth month, 

it would be considered to have. been take!) in the twelfth month. That did not happen in 

tills case. 

(Tr. 403.) 

D. The ALJ Should Have Found That Ventura Violated Section 91.13. 

The ALJ made 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]eing that 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 Brief at 18.) 

Section 91.13(a) prohlbits any person from operating an aircraft "in a careless or reckless 

manner so as to endanger the life or propertyof another." 14 C.P.R. § 91.13(a). Absent 

extraordinary circumstances, a residual or derivative violation of Section 91.13(a) is established 

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

31 "Challenges to the constitutionality of an 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 of an aircraft that is not in compliance with airworthiness directives 

constitutes a violation of 14 C.F.R. § 39.3, and a residual violation of Section 91.13(a)); USAIR, 

Inc., FAA Order No. 1992-70 (December 21, 1992) (operation of an unairworthy aircraft 

constitutes a violation of 14 C.F.R. §§ 121.153(a)(2) and a residual violation of Section 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 of Section 91.13); 

Administrator v. Rogers, NTSB Order EA-4428 (February 20, 1996) (operating an aircraft with 

an inaccurate load manifest constituted a violation of Section 135.63 and a residual violation of 

Section 91.13(a)). Proof of actual danger is not necessary to establish a violation of Section 

91.13(a) because that regulation prohibits any careless or reckless practice which is inherently 

dangerous and has the potential to jeopardize safety of persons 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'd sub 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 and property of others arises from the finding that Ventura 

violated Section 135.293(a)(l) and (4)-(8), and no specific evidence of carelessness or actual or 

potential danger was required. Permitting a pilot who has not demonstrated in a timely fashion 

that he has the knowledge required under the regulations to serve as a crewmem ber on flights for 

compensation or hire constitutes a careless endangerment of the safety of passengers and other 

crewmembers, as well as of property. 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 of a residual violation of Section 91.13 does not warrant an 

increase in the civil penalty. Go Jet, FAA Order No. 2012-5 at 15-16 (May 22, 2012). 

24 
E. The $1.00 Assessed By The ALJ Is Not Consistent With Applicable Law, Precedent, and 

Pnblic Policy. 

I. The ALI's Failure To Consider FAA Sanction Guidance Was Arbitrary And An Abuse 

Of Discretion. 

Rogers testified that he had relied upon paragraph 0 ofthe Sanction Guidance Table in 

FAA Order No. 2150.3A, Appendix 4, part I. (Tr. 110-111.) The FAA sought to introduce a 

copy of an.excerpt from FAA Order No. 2150.3B, which was in effect on the date of the hearing, 

rather than an excerpt from FAA No. Order 2150.3A, which was in effect at the time of the 

flights in this case. The ALJ noted at the hearing that he could have taken judicial notice of the 

pertinent portion of FAA Order No. 2150.3A. Instead, the ALJ gave the FAA leave to submit 

the pertinent portion 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 both parties to file post-hearing 

initial briefs and post-hearing reply briefs simultaneously. (Tr. 50 1.) Instead of filing the 

excerpt from FAA Order No. 2150.3A separately, the FAA attached the excerpt to its initial posthearing brief. The ALJ ruled in his dedsion that the FAA's submission was too late because "it 

deprived the Respondent of the 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 of discretion for the ALJ to reject 

the excerpt from FAA Order No. 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 prior to the filing of the initial posthearing brief. Moreover, although superseded by FAA Order No. 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%20215 0. 3A. 

25 
which portions ofthat order the FAA considered relevant. Importantly, Ventura had an 

opportunity to comment about the excerpt when it filed its post-hearing reply brief in response to 

the FAA's arguments about sanction in its initial post-hearing brief. Hence, Ventura was not 

placed at a disadvantage by the submission of the excerpt as an attachment to the FAA's posthearing initial brief. 

2. A $15,000 Civil Penalty Is Appropriate. 

The Administrator has broad authority to assess civil penalties against individuals for 

violations of the regulations. In 2006, when the violations in this case occurred, the 

Administrator had the authority to assess an $11,000 civil penalty per violation of the 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 of civil penalty authority.) 

An appropriate civil penalty must reflect the totality of the circumstances surrounding the 

violations. 33 The Administrator provided policy guidance for agency employees to follow 

regarding sanctions for different types of violations of the 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 of that order, was designed to provide "general guidance for the 

exercise of the agency's prosecutorial discretion" to "assure national consistency in enforcing the 

Federal Aviation Regulations." FAA Order No. 2150.3A, Appendix 4 at page 1. The Sanction 

33 The factors that the FAA will consider include: (I) the nature and circumstances of the 

violation; (2) the extent and gravity of the violation; (3) the person's degree of culpability; ( 4) the 

person's history of violations, if any; (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 as justice may require. Warbelow 's Air 

Ventures, Inc., FAA Order No. 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 's Air Ventures v. FAA, No. 00-70423 (91

h Cir. September 20, 2001). 

26 
Guidance Table in FAA Order 2150.3A, Appendix 4, recommends a minimum, moderate and/or 

maximum range sanctions for different types of violations committed by air carriers. When the 

\ 

FAA formulated these sanction ranges for different types of violations, the agency considered the 

nature, extent and gravity of each general type of violation as well as the individual's prior 

violation history (in that the table provides recommended penalties for first-time offenders.) 

Folsom's Air 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 later modified these ranges through the issuance of the 

Compliance/Enforcement Bulletin No. 92-1, included in Appendix 1 ofF AA Order No. 

2150.3A. The guidelines in Compliance/Enforcement Bulletin 92-1 were issued as "a means of 

placing a relatively equivalent deterrent effect on each air carrierthat violates the same FAR, by 

considering the size of the carrier in determining an appropriate civil penalty."34 

' 

Compliance/Enforcement Bulletin No. 92-1, FAA Order 2150.3A, Appendix I, at 103. Under 

Compliance/Enforcement Bulletin No. 92-1, the maximum, moderate, and minimum civil 

penalty ranges vary depending upon the size of the 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 of an unqualified crewmember. The 

FAA did not introduce any evidence regarding Ventura's size. Consequently, it is 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 of aircraft, and employing fewer than six pilots. Generally speaking, 

Group I carders are subject to 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. 

27 
apply the maximum civil penalty range for a Group IV operator. At the time ofthese violations, 

the maximum civil penalty range for Group IV operators, as adjusted for inflation, was $4,000 to 

$11,000 per violation for each flight. Compliance/Enforcement Bulletin No. 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 by the FAA is consistent with the sanction guidance in 

effect at the time for Ventura's violations of Sections 135.293(a)(1)-(4)-(8) on three flights. No 

additional penalty is appropriate for the violations of Section 91.13 because they were residual 

violations. The Sanction Guidance Table, as modified by the Compliance/Enforcement Bulletin, 

express the Administrator's sanction policy, and if an ALJ assesses a civil penalty that is not 

consistent with agency sanction policy, the Administrator on appeal may reverse the ALJ. 

Folsom's Air Service, FAA Order 2008-11 at 14. 

The ALJ gave several reasons for assessing only a nominal $1.00 civil penalty. The ALJ 

explained that "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 what the regulatory atmosphere required of it." 

(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 only that Ventura's expert witness thought that Ventura's use ofTarascio did 

not constitute violations of Sections 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 Order No. 8400.10. 

The ALJ also stated, when justifying the $1.00 civil penalty, that it was significant that 

Tarascio was "at all relevant times knowledgeable and skillful enough to pass all of the tests set 

28 
out 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 after the flights is fortunate, 

and at best, justifies a penalty at the lower end of the 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 low end of the maximum penalty range for a Group IV carrier. It should 

be noted that taking and passing the knowledge test required under Sections 135.293(a)(l) and 

(4)-(8) after the flights in question defeated the purpose of the 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 or hire before flying. 

The ALJ also justified the imposition of a nominal $1.00 civil penalty on the fact that the 

FAA did not introduce evidence of prior violations by Ventura. The sanction ranges set forth in 

FAA guidance, however, reflect the appropriate civil penalties for persons without a history of 

violations. FAA Order No. 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 of service of this decision with the U.S. Comt of Appeals for the 

District of Columbia Circuit or the U.S. court of appeals for the circuit in which the respondent resides or 

has its principal place of business. 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 of final agency decisions in civil penalty 

cases). 

29 
Appendix I 

Section 135.293, entitled "Initial and recurrent pilot testing requirements," provides in pertinent 

part as follows: 

(a) No certificate holder may use a pilot, nor may any person serve as a pilot, unless 

since the beginning of the I z!h calendar month before that service, that pilot has passed a 

written or oral test, given by the Administrator or an authorized check pilot, on that 

pilot's knowledge in the following areas-

(1) The appropriate provisions of parts 61, 91, and 135 ofthis chapter and the operations 

specifications and the manual ofthe certificate holder; 

(2) For each type of aircraft to be flown by the pilot, the aircraft powerplant, major 

components and systems, major appliances, performance and operating limitations, 

standard and emergency operation procedures, and the contents of the approved Aircraft 

Flight Manual or equivalent, as applicable; 

(3) For each type of aircraft to be flown by the pilot, the method of determining 

compliance with weight and balance limitations for takeoff, landing and en route 

operations; 

(4) Navigation and use of air navigation aids appropriate to the operation or pilot 

authorization, including, when applicable, instrument approach facilities and procedures; 

(5) Air traffic control procedures, including IFR procedures when applicable; 

(6) Meteorology in general, including the principles of frontal systems, icing, fog, 

thunderstorms, and windshear, and, if appropriate for the operation of the certificate 

holder, high altitude weather; 

(7) Procedures for -

(i) Recognizing and avoiding severe weather situations; 

(ii) Escaping from severe weather situations, in case of inadvertent 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, or techniques, as appropriate. 

30 
Appendix 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 of the I i 1 calendar month before that service, 

that pilot has passed a competency check given by the Administrator or an 

authorized check pilot in that class of aircraft, if single-engine airplane other than 

turbojet, or that type of aircraft, if helicopter, multi engine airplane, or turbojet 

airplane, to determine the pilot's competence in practical skills and techniques in 

that aircraft or class of aircraft. The extent of the competency check shall be 

determined by the Administrator or authorized check pilot conducting the 

competency check. The competency check may include any of the maneuvers 

and procedures currently required for the original issuance of the particular pilot 

certificate required for the operations authorized and appropriate to the category, 

class and type of aircraft involved. For the purposes of this paragraph, type, as to 

an airplane, means any one of a group of airplanes determined by the 

Administrator to have similar means of propulsion, the same manufacturer, and 

no significantly different handling or flight characteristics. For the purposes of 

this paragraph, type, as to a helicopter, means a basic make and model. 

31 
Appendix III 

The following definitions regarding training programs were set forth in Section 283 of 

FAA Order No. 8400.10 in effect in 2005-2006 (and are identical to the current definitions set 

forth in Paragraph 3-1072 of the current FAA Order No. 8900.1): 

• Training Program: A system of instruction which includes curriculums, facilities, 

instructors, check airmen, courseware, instructional delivery methods, and testing and 

checking procedures. This system must satisfy the training program requirements of 

Part 121 or Part 135 and ensure that each crewmember ... remains adequately trained 

for each aircraft, duty position, and kind of operation in which the person serves. 

• Modular Training: The concept of program development in which logical 

subdivisions of training 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 of these programs. 

• Categories of Training: The classification of instructional programs by the regulatory 

requirement the training fulfills. Categories of training consist of one or more 

curriculums. The categories of training 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 of training. An example is an "initial new- hire, Boeing 

727 flight engineer curriculum." Each curriculum consists of several curriculum 

segments. 

• Curriculum Segment: The largest subdivision of a curriculum containing broadly 

related training subjects and activities based on regulatory requirements. Curriculum 

segments are logical subdivisions of a curriculum which can be separately evaluated 

and individually approved.' Examples are a "ground training" segment and a "flight 

training" segment. Each curriculum segment consists of one or more training 

modules. 

• Training Module: A subpart of a curriculum segment which constitutes a logical, 

self-contained unit. 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 of which is a separate module. A training module 

includes the outline, appropriate courseware and the instructional delivery methods. 

It is usually, but not necessarily, completed in a single training session. 

32 
• Element: An integral part of a 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 of a training, checking, or qualification module which is taskoriented and requires the use of a specific procedure or procedures. A training event 

provides a student an opportunity for instruction, demonstration, and/or practice 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 of a qualification curriculum 

segment which contains checking and qualification requirements specified under Part 

121 or Part 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 

IN THE MATTER OF 

VENTURA AIR SERVICES, INC., 

Respondent. 

FAA DOCKET NO. CPEAOOOS 

(Civil Penalty Action) 

DMS NO. F AA-2008-0505 

ADMINISTRATIVE LAW JUDGE'S INITIAL DECISION 

The issue in this case is whether a second-in-command pilot employed 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 of the flight crew in 

three operations carrying passengers for hire. The Complainant, the Federal Aviation Administration (FAA) charged that Nicholas Tarascio, the pilot in question, 

was not fully qualified because he had not timely and successfully completed certain tests that are required under§ 135.293(a) of the 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 Ventura to punish the carrier 

for its use of an unqualified pilot. Ventura has denied the claim that Capt. Tarascio 

was unqualified, asserting that he was at all relevant times up to date on his periodic training and testing in accordance with§ 135.293(a), when the regulation is 

construed in accordance with the FAA's guidance to its enforcement staff, Ventura's FAA-approved training manual and an interpretive ruling by the agency's 

Chief Counsel. 

Section 135.293(a) of the FAR reads as follows: 

(a) No certificate holder may use a pilot, nor may any person 

serve as a pilot, unless, since the beginning of the 12th calendar month 

1 A Part 135 carrier transports passengers for hire in commuter or on-demand (air taxi and charter) service. 

14 C.F.R. § l35.1(a)(l). 
before that service, that pilot has passed a written or oral test, given by 

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

(1) The appropriate provisions of parts 61, 91, and 135 of this 

chapter and the operations specifications and the manual of the certificate holder; 

(2) For each type of aircraft 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 of the approved Aircraft Flight Manual 

or equivalent, as applicable; · 

(3) For each type of aircraft to be flown by the pilot, the method 

of determining compliance with weight and balance limitations for 

takeoff, landing and en route operations; 

( 4) Navigation and use of air navigation aids appropriate to the 

operation or pilot authorization, including, when applicable, instrument approach facilities and procedures; 

(5) Air traffic control procedures, including IFR procedures 

when applicable; 

(6) Meteorology in general, including the principles of frontal 

system, icing, fog, thunderstorms, and windshear, and, if appropriate 

for the operation of the certificate holder, high altitude weather; 

(7) Procedures for-

(i) Recognizing and avoiding severe weather situations; 

(ii) Escaping from severe weather situations, in case of inadvertent encounters, including low-altitude windsheax: (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, or techniques, as appropriate. 

-2-
It will be noted that several of the subjects of mandatory testing are specific 

to the type of aircraft that the pilot or prospective pilot intends to fly. These subjects can be tested only by a check pilot (or FAA representative) who is fully qualified in that type of aircraft. These requirements posed a problem for Ventura and 

Capt. Tarascio, since Ventura had not operated jet aircraft (and specifically the 

Learjet Model 25 that Tarascio was hired to fly) and did not have on its staff a 

check pilot who was qualified in that make and model of aircraft. 

Capt. Tarascio had been hired by Ventura in 2004. Tr. 176-77. Prior to that 

time, he had been employed by a company called Air East and had had experience 

on the flight deck of the Learjet Model25. Tr. 176. He held a commercial license. Tr. 175. He was put through Ventura's "Reduced Initial New Hire Training 

Curriculum," as authorized for new crew members with previous experience under 

the carrier's training manual. Tr. 180-81. Ex. R-2 at 2-5. The record indicates that 

in December 2004, Capt. Tarascio had been tested on his knowledge of the items 

required under§ 135.293(a)(l) and (a)(4)-(a)(8) by FAA Inspector Eva C. Mauro. 

Tr. 51; Ex. C-1. She did not, however, test him on the type-specific items required 

under paragraphs (2) and (3) of§ 135.293(a) at that time. Tr. 51 (Rogers, Direct). 

This may have been the case because Ms. Mauro was not rated in the Learjet 

Model 25-although the record does not show that to have been the case. Id. 

On February 3, 2005, Capt. Tarascio went on a check ride in a Lealjet Model 

25 with an FAA Inspector by the name of Susan Fraher. Tr. 182 (Tarascio, Direct). Ms. Fraher, who had qualified as a check pilot in the Learjet Model 25, was 

authorized to test Capt. Tarascio on all of the prescribed elements of the 

§ 135.293(a) test, found that Capt. Tarascio possessed the knowledge required to 

pass that test in all respects (at least as a second-in-command) and so noted on the 

airman's FAA Form 8410. Tr. 52 (Rogers, Direct); Ex. C-1 at 2. The February 3, 

2005 flight was what was called a "proving flight." Its purpose was to demonstrate 

to the FAA that Ventura was capable of safely operating the Learjet Model25 

which it had just acquired. Tr. 198. (Tarascio, Cross).2 

In March 2005, Capt. Tarascio went to Florida for further training at a SimCom Training Center. Tr. 188. SimCom International, Inc., a firm that offered 

simulator training for pilots seeking to become proficient in Learjet Model 25 aircraft, had been approved by the FAA for both! training and testing purposes. The 

FAA's approval, granted in April2005, was subject to one caveat: Ventura was 

2 Ventura was required to conduct a proving test under§ 119.33(c) of the 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 

of the Le"!"jet operations, was along on the February 3, 2005 flight and presumably satisfied the FAA inspector that 

he, too, was capable of functioning in the role that Ventura had planned for him. 

-3-
specifically informed that SimCom was not authorized to perform the tests required under§§ l35.293(a)(l) and (a)(4)-(8). Ex. C-4 atl. During his stay at 

SimCom, Capt. Tarascio successfully completed all of the tests that SimCom was 

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 stating that Capt. Tarascio "has satisfactorily completed a Specialty Curriculum Part 135 Lear 35 Recurrent couurse 

[sic] with 25 Differences course in accordance with the. standards of SimCom 

Training Centers." Ex. C-3. 

According to his records, Capt. Tarascio's next§ 135.293(a) testing took 

place on May 8, 2006, when he was tested by FAA Inspector Mark Rogers and 

found to have satisfactorily demonstrated his knowledge of the matters set forth in 

paragraphs (a)(l) and (a)(4-8). Ex. C-1, last page. On that occasion, Inspector 

Rogers had asked Capt. Tarascio to bring his training records to the proficiency 

check session. Tr. 38. Going through those records, Inspector Rogers testified, he 

noticed a "discontinuity" in that Taracsio had not been tested on the items specified 

in§ 135.203(a)(l) and (a)(4-8) since February of2005. Tr. 30, 38-9. That was 

more than the one-year deadline for periodic testing set forth in the introductory 

subsection of§ 135.293; in fact it was longer than the one-year period coupled 

with the "grace month" allowed by§ 135.30l(a) of the FAR. Under the latter provision, a crewmember who is required to be tested (or flight-checked) may delay 

the test or check until the end of"the calendaE month before 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's knowledge is met if the crewmember is tested during the 

thirteenth month following the month in which he was last tested. But even giving 

Capt. Tarascio the benefit of the "grace month" did not keep him in compliance 

with the annual testing requirement, according to Inspector Rogers. Looking at 

Capt. Tarascio's training records, Rogers'.determined that since he had last been 

tested in February 2005 on his knowledge of all the material required under 

§ l35.293(a), his next testing session was due to occur no later than the end of 

March 2006. Tr. 39. When Capt. Tarascio came to Inspector Rogers for testing in 

May of 2006, this crewmember was more than a month out of time for testing on 

the subjects for which SimCom was not qualified to test him. Tr. 43. Inspector 

Roger concluded that Capt. Tarascio was not qualified to serve on the flight deck 

of any Part 135 flights that took place after March 31, 2006. Id. Inspection of 

Ventura's records turned up irrefutable evidence that Capt. Tarascio had flown as 

First Officer on Ventura Part 135 flights on April I, 2006, April2, 2006 and April 

3 Ex. C-1 at 3-4. The SimCom simulator was of a 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. Inspector Rogers began an enforcement proceeding to exact a civil penalty from Ventura. Tr. 93; Ex. C-6. 

After Ventura requested a hearing, the FAA's complaint was filed on April 

22, 2008. The complaint charged that the Respondent had violated both 

§ 135.293(a) and§ 135.293(b) of the FAR. As we have seen, the former pertains to 

the requirement for annual testing of the airman; the latter, however, requires 

crewmembers to complete certain training requirements. On December 18, 2008, 

blaming a clerical error, Complainant withdrew the charge that the use of Capt. Tarascio as a pilot violated§ 135.293(b). But the amount of the 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 Chief Judge assigned it to himself. On September 11, 2008, he reassigned the case to me. Both parties engaged in extensive discovery. In addition, 

both parties filed motions for summary disposition, alleging that there were no disputed material issues of fact to be decided. In an order served on January 5, 2009, 

I denied both of the dispositive motions. The two-day hearing took place 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 now ripe for decision. 

As we have seen, the Complainant's theory of the case is that the FAR requires.each pilot successfully to be tested once in everv year (plus the "grace 

month") on all of the subjects mentioned in§ 135.293(a) of the FAR. Capt. Tarascio, by the FAA's lights, failed to comply with that requirement when, having 

completed the testing process on February 3, 2005, he was not again tested on all 

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 Order No. 8400.10, excerpted in Ex. R-1, and in Ventura's FAA-approved training manual, Ex. R-2. 

FAA Order No. 8400.10 was published for the purpose of giving guidance to the 

agency's staff"who are responsible for the certification, technical administration, 

and surveillance" of Part 121 and 135 air carriers (Ex. C-12 at '1[1); however, it has 

been made available to the public and is generally regarded as authoritative in the 

aviation community. Section 1 0 of the applicable version of FAA Order 

No. 8400.10 deals with the requirement for recurrent training of flight 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 of operations. 

' The Complainant elected not to file a reply brief. 6 The version of Order 8400. I 0 that was in effect at the time the alleged violations occurred was Change 5, dated 

June 30, 1991. 

-5-
proach to recurrent training, all such training elements and events must be 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 or her training within a three-calendar-month period, 

the month in which the qualification curriculum segment is completed 

is then considered to be that crewmember's training/checking month. 

If the training has been completed within the 3-month period, the operator may make a single record of the entire curriculum without noting when individual events occurred. Subsequent scheduling of recurrent training may then be based on the training/checking month. 

Id. at 'If 603A( 1 ). The Order goes on to say that the "eligibility period is a 3-month 

period comprised of the calendar month before the month in which training is due, 

the month in which training is due, and the calendar month after the month in 

which training is due." Id. at 'If 603B. 

The Respondent claims that the foregoing language entitles it, if it chooses 

to "adopt[] a modular approach" for recurrent training of crewmembers 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 that period as having been completed at the end of the period. 

Resp't Post-Hearing Brief at 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 of the 

Operator Specific modules ... of the Basic Indoctrination Curriculum and theRecurrent Training Modules of other curriculums [sic] as appropriate." Ex. R-2 at 1; 

Resp't Post-Hearing Brief at 8. This demonstrates, according to the Respondent, 

that at the time Capt. Tarascio was hired and qualified, the carrier had adopted "a 

modular approach" to his training and testing requirements. Resp't Post-Hearing 

Brief at 8. 

It follows, says the Respondent, that the February 2005 testing that Inspector 

Fraher administered was only the earliest module of Capt. Tarascio's recurrent 

training and testing. Resp't Post-Hearing Brief at 28. The balance of the 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-month period, the testing/training month is deemed to be the month in 

which the last module is completed. Resp't Post-Hearing Brief at 12. That month 

was March 2005. Id. Giving effect to the "grace month" concept built into 

§ l35.301(a) of the FAR means.that Capt Tarascio next needed to be tested no 

-6-
later than the end of April2006. ld. That mei;lns he was fully qualified on April 1, 

2 and 13, 2006, when the flights in question took place. Id. So runs Respondent's 

theory of the case. 

According to Respondent, its theory is supported by an interpretive opinion 

that its counsel received from Rebecca MacPherson, an attorney with the Operations Law Branch of the Office·ofChiefCounsel of the FAA. Resp't Post-Hearing 

Brief at 30 (citing Ex. R-7). Respondent's Counsel had inquired about whether, if 

recurrent training is administered in modules, the air carrier must record when each 

element of the module is completed, record when each module is completed or 

make one record when all modules of the 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 out to be very significant in this case: What is the 

meaning of the term "module?" "The modules for Part 135," she responded, "are 

composed of two parts." 

One part consists of the written or oral test elements, and the other part consists of the 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 may record when all 

of the modules are complete but is not required to record when each element 

of a module is complete. 

The Respondent's definition of the 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 of service with the FAA. Ex R-8. 

Having reviewed the Ventura training manuals, he was of the 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 of the required training and 

testing within a relatively brief period oftime, Mr. Peck explained. Tr. 258. Much 

of the testing related to specific aircraft types must be completed by using check 

pilots or FAA personnel who have qualified in that type of aircraft and are approved by the agency to provide the testing. When an operator, such as Ventura, 

does not employ its own qualified check pilots and is located at or near an FSDO 

that itself lacks personnel qualified in the type of aircraft 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 need under 

§ 135.293 of the FAR. Tr. 258. Mr. Peck testified that it may take an operator 

-7-
three to six weeks to accomplish all of the required training and testing elements. 

Tr. 259. That, said Mr. Peck, is why Order No. 8400.10 allows the training and 

testing to take place over a three-month period. Id. 

But as long as all the required testing arid training is completed within that 

three-month period, the crewmember's "base" month is set at the month in which 

the last element is completed, said Mr. Peck. Tr. 262--63. In the case of Capt. Tarascio, it was his opinion that the first element of his testing took place on February 

3, 2005, Tr. 279-80, and that this crewmember became fully qualified (from a testing standpoint) on March 16,2005, when he was tested at SimCom, Tr. 277-78; 

285. Hence, Mr. Peck concluded, Ventura did not violate§ 135.293(a) by using 

Capt. Tarascio as second-in-command of a Lear jet 25 flight in April of 2006, during his "grace" month. Tr. 288. 

To rebut Mr. Peck's testimony, the Complainant sponsored the testimony of 

its own expert witness. At the date of the hearing, Roy M. Sees had been employed by the FAA for ten years. He had served four and a half years as a Contracting Officer's Technical Representative for Outside Agency Training. Ex. C10. He had also been an instructor at the FAA's training academy in Oklahoma 

City, Oklahoma. Tr. 388-90.7 It was Mr. Sees' opinion that, as of the beginning 

of Apri12006, 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. According to Mr. Sees,' a pilot training program has six categories (such as "initial new hire" or "recurrent"), each of which has five segments 

(such as "basic indoctrination" or "aircraft ground training"). Tr. 404. Each segment would have one or more modules-for example, in the aircraft ground training segment, "aircraft electrical system" or "aircraft fuel system." Id. The only 

purpose of authorizing the use of modular training, according to Mr. Sees, was to 

facilitate individual FAA approval of modules that can be used in connection with 

several different training programs, i.e., for multiple curricula. Tr. 405. For example, the "electrical system" module, once approved for the "initial new hire" 

category, could also be taught in the "recurrent" category without the agency having to approve it a second time. Id. Hence, it was Mr. Sees' hypothesis that Ventura's adoption of a "modular" approach to training and testing had "no bearing" 

on whether Capt. Tarascio was qualified when he served on the flight deck of the 

April 2007 flights. Id. 

7 At the hearing, I ruled, over the objection of the Respondent, that Mr. Sees was qualified to testify as an expert on 

training requirements. Tr. 390-99. The Respondent's initial brief attacked that ruling and again asked me to disqualify Mr. Sees. Resp't Post-Hr'g Br. at 30-36. J have reconsi~ered my ruling and remain persuaded of Mr. Sees' 

qualifications based upon his long tenure on the staff of the FAA. 

-8-
According to Mr. Sees, Capt. Tarascio could not have taken his qualifying 

tests in February 2005, as Ventura claimed. At that time, Mr. Sees noted, all of the 

pilot's training had not been completed. It is absurd, thought Mr. Sees, to claim· 

that an airman could successfully complete§ 135.293(a) testing before he had 

completed his training, because the latter precedes the former. Hence, the tests that 

Inspector Fraher gave to Capt. Tarascio must be regarded as the completion of his 

initial training. Tr. 410-12. The March activities at SimCom, said Mr. Sees, were 

part of Capt. Tarascio's recurrent training and testing, which were done eleven 

months before they were required to be done. Tr. 412. The problem with Ventura's theory, according to 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 to provide. that type oftest. Tr. 416. To demonstrate the 

correctness of his view, Mr. Sees noted that the certificate that Capt. Tarascio received from SimCom (Ex. C-3) specifically said that this airman had completed a 

"Recurrent course." Tr. 419-20; 432-33. He also cited to an affidavit by Ventura's 

Director of Operations, which had 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 Check in 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 of training-and-testing curricula. One was for initial qualification, which concluded in February 2005, when Capt. Tarascio was 

tested by Inspector Fraher. Tr. 418-19. The other was begun when Capt. Tarascio 

went to 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 of these theories is plausible on it& face. Yet each of them suffers from 

severe problems. In short, this is a close and most difficult case. 

The principal problem with the Respondent's theory is that it is not rooted in 

the language of the governing regulation. Nothing in the text of§ 135.293(a) supports .the notion that a requirement for an annual test of a crewmember's knowledge really allows a crewmember to be tested only once in a period of 15 months. 

Yet, that is the result we would reach if the Respondent's theory were adopted. If 

a crewmember were tested on the first day of the year and completed the testing 

program on March 31, for example, under the Respondent's version of the "modular" hypothesis and giving effect to the Respondent's thesis that only the last event 

in the three-month testing-and-training cycle counts in calculating when the next 

-9-
training-and-testing cycle must takt: place, the crewmerp.ber would not be due for 

re-testing until the end of March of the following year. 'Indeed, if we combine the 

Respondent's view of how the "modular" hyp~thesis is applied with the notion of a 

one-month "grace" period, the qeadline would extend to the end of April of the 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 that result constitutes quite a stretch. 

It is extremely doubtful that the authors of§ 135.293(a) intended to permit such a 

lengthy hiatus. 

Another, equally serious, problem with Respondent's "modular" hypothesis 

is that the 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 in February 2005 constituted a "module." The 

Respondent, however, has pointed to nothing that supports that claim. The fact is 

that neither of the authorities on which the Respondent principally relies-Order 

No. 8400.10 or the Ventura training manual-'defines either the term "module" or 

the term "modular." Of the two expert witnesses who testified, only the Complainant's witness, Mr. Sees, attempted a definition of"mod~;~le." A module, according 

to him, consists of a grouping of systems all of which have the same general purpose. Avionics, for example, would be a module, as would fuel systems or meteorology and weather. But there. appears to be no justification for treating the variety of subjects specified in§ 135.293(a)(l) and (a)(4)-(8) as a separate module. 

The opinion of the Office ofChiefCol.lnsel, from which Ventura took considerable 

comfort, defined the term "module" as including all on-the-ground testing and 

training; such a definition does not square with the manner in which the Respondent is seeking to use the term "module" in this case. 

We must remember that Capt. Tarascio was not a novice when he qualified 

to fly the Lear Model 25 on behalf of Ventura. He had previously qualified in that 

make and model of aircraft at his last employer. Hence, under Ventura's training 

manual, he was subject to the "Reduced Initial New Hire Training Curriculum," a 

program that eliminated some of the training (and testing) requirements that would 

have been applied to a newcomer. In this context, it makes very little sense to talk 

in terms of the training "modules" that would be used in the case of a brand-new 

jet pilot. Instead, an experienced new hire, such as Capt. Tarascio, would be expected to go through sufficient training and testing to assure his new employer that 

he had retained his skills as the pilot of a Lear 25. That, one supposes, is what Ms. 

Fraher thought she was doing when she tested this individual in February of2005: 

She was attempting to ascertain whether it was safe to allow Capt. Tarascio to 

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serve as co-pilot on a "proving" flight of the new aircraft. There is no indication 

in the record that the February 3, 2005 check flight was scheduled to complete one 

or more "modules" in Capt. Tarascio's recurrent training or testing. 

A final point here is closely related to the first of the problems with Respondent's theory, discussed above. The authorities on which the Respondent relies 

are, at best, secondary authorities. Order No. 8400.10 is, as we have noted, a 

document written for members of the 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 of a section of the FAR adopted with all the dignity and deliberation 

required by the Administrative Procedure Act. It cannot alter or eliminate the duty 

of a Part 135 carrier to 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 of the case, the term "12 calendar months" would 

be construed to mean "15 calendar months plus 30 or 31 days." The English language cannot be stretched that far. 

Ventura's reliance on the terms of its training manual to change the unambiguous meaning of a regulation is equally misplaced. It is true that the training 

manual of this carrier was initially approve.d by the local FAA FSDO, as is the case 

with carrier training manuals generally. But it would be fundamentally inimical to 

the FAA's mission, and a miscarriage of justice, to allow an air carrier to eliminate 

its duty to comply with a provision of the FAR simply because it has managed to 

slip some ambiguous language past the FAA's busy reviewers of its training manual. Once again, a carrier must comply with the regulations as written, regardless 

of what its training manual or the agency'·s "guidance" to its staff may say. The 

same thing is true of opinions emanating from the Chief Counsel'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 of the case. For one 

thing, the language of the relevant regulation does not specify that the requisite 

training and testing must be done in any particular order; nor does the regulation 

require that a crewmember who seeks to pass his annual testing requirements must 

do so on the basis oftraining recently received. If a pilot wishes to take one or 

more of the tests specified in§ 135.293(a) without first undergoing training, there 

is nothing in the regulation (or anywhere else) to prevent him from doing so. Indeed, one presumes that a pilot, such as Capt. Tarascio, who had been flying the 

Lear Model 25 on virtually a daily basis would be fully competent to pass tests on 

his knowledge of the matters set forth in paragraphs (a)(1)-(8) without much addi-

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tiona! training. In short, Mr. Sees' view that recurrent training must necessarily 

precede recurrent testing seems to me to be mistaken. 

The fact remains, however, that both Order No. 8400.10 and the Chief 

Counsel's September 6, 2006 opinion speak in tenus of a three-month period in 

which the tests and training exercises mentioned in§ 135.293 may be completed. 

They say, moreover, that the date on which the ainnan completes the training-andtesting cycle starts his or her annual period for periodic re-qualification. How can 

this be squared with the clear language of the ~egulation itself, which contemplates 

that re-qualification shall take place once every 12 calendar months and, except for 

the "grace period" 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 of aircraft on which they are being trained and tested. For such a person, 

Mr. Peck's explanation of the three·-month period for training and testing rings 

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 of candidates. Hence, these individuals are given a reasonable period of 

time-three months in this case-to fulfill all of the requirements. Such an allowance would also be appropriate for someone whose qualifications in the particular 

type of aircraft had lapsed through lack of experience flying that type 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. Tarascio presents an entirely different case. At all relevant times, he was, and continues to be, employed in piloting the Learjet Model 25 on a daily basis. He should be expected to complete 

training and testing on the subjects set forth in§ 135.293 in a relatively brief period of time. He did not need a three-month period in which to fulfill all ofthe requirements, including those app)icable to a specific aircraft type. Proof of this is 

that Capt. Tarascio, based on his experience in the Learjet 25, was able to satisfy 

Inspector Fraher concerning his competence and knowledge in just one "proving" 

flight and successfully completed his SimCom training and testing 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 beginning to 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, in my view, to regard Capt. Tarascio's successful completion of the 

§ 135.293 tests in February of2005 as having been accomplished in March. Respondent's claim that Capt. Tarascio's testing under§§ 135.293(a)(1) and (a)(4)-

(8) should be regarded as having been accomplished in March, rather than February when it actually took place, is rejected. 

For these reasons, I conclude that, as a technical matter, Capt. Tarascio was 

out of time 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 of April I, 2006, he was no longer qualified 

under§ 135.293(a), and consequently Ventura has been shown by a preponderance 

of the 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 of the appropriate sanction to be assessed 

against the Respondent in this case. 

The FAA has introduced virtually no evidence into the record on the subject 

of the sanction. We also know that the agency's complaint sought a civil penalty 

of$15,000 based on the charge that Ventura had violated both subsection (a) and 

subsection (b) of§ 135.293 of the FAR. The charge of violating subsection (b), 

which deals with requirements for crewmember training was withdrawn, leaving 

the Respondent charged with violating only subsection (a), which deals with testing of crewmembers. Nevertheless, the amount of the penalty the FAA sought was 

not reduced. 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 per violation. He sought to justify this by pointing to the FAA's Sanction Guidance, Order 

No. 2150.3B. It turned out, however, that Inspector Rogers was working with a 

version of Order No. 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 correct version of Order No. 2150, or 

whatever sanction guidance the FAA had in force in April 2006, as a late-filed exhibitor to entertain a request to take judicial notice of its contents. He agreed to locate the document and provide it for the record on that basis. But he never did so. 

Instead, he attached it to his post-hearing brief, which was far too late in the pro9 Order No. 2150.38 carries an issue date of October I, 2007. 

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ceeding and deprived the Respondent of the opportunity to examine it and refer to 

it in its post-hearing initial brief. Hence, I am rejecting the Complainant's belated 

proffer of Order No. 2150. As \\result, th.e record is devoid of evidence in support 

of the $15,000 claimed by the FAA, or any other amount, as the appropriate civil 

penalty. 

The text of the relevant statute, 49 U.S.C. § 46301, supplies the essential criteria for the assessment of civil penalties in cases such as this one. Subsection (e) 

of§ 46301 provides that, in determining the amount of the civil penalty, the following matters shall be considered: "(1) the nature, circumstance, extent, and gravity of the violation; (2) with respect to the violator, the degree of culpability, any 

history of prior violations, the ability to pay, and any effect on the ability to continue doing business; and (3) other matters that justice requires." 

This is one of the rare cases in which the last criterion is, in my judgment, 

the most significant. The record of this case makes it abundantly clear that 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 

had published "guidance" that was virtually at war with the text of its regulation. 

While § 135.293 told the aviation community that flight deck crewmembers must 

be trained and tested on an annual basis, '0, another section of the FAR, some distance away from§ 135.293, went on to say that the annual test or flight check requirement can be fulfilled once every B months. Then, to add further ambiguity 

to the requirement for annual testing, the FAA published § 1 0 of Order No. 

8400.10, which appears to say that the requirement for an annual test of piloting 

skills (meaning a test every 13 months) can be met in certain circumstances by 

"adopt[ing] a modular approach," performing the training, the testing, or both, over 

a three-month period and then treating all of the testing as if it had been done on 

the last day of that three-month period. To add an additional enigma to the regulatory program, the agency's chief counsel then issued an interpretation which 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 confused by what 

it must do in order to assure that its flight crevys were at all times fully qualified 

under the FAR? Can this Respondent be faulted for following the guidance of its 

own, FAA-approved training manual? 

In these 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 of the 12th calendar month before that service" is 

hardly a pellucid way of saying '~at least once a year.'1 But it's clear enough. 

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published and approved by the FAA in a manner that seemed to require the least 

amount of new training and testing of Capt. 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 what the regulatory atmosphere required of it. 

It is also significant, in my view, that Capt. Tarascio was at all relevant times 

knowledgeable and skillful enough to pass all of the tests set out in § 135.293(a). 

We have in the record of this case all of this airman's training records. They show, 

without exception, that he never failed to pass a test of his knowledge and flying 

skills. His prior experience had equipped him with that knowledge and those skills 

and, so far as the record shows, he never lost them. Hence, the gravity of Ventura's violation seems rather low, in that the safety of the public was never at risk 

during the few days early in April 2006 when Capt. Tarascio acted as second-incommand of three of Ventura's flights. 

There is no evidence that Ventura had a history of prior violations of the 

FAR. The FAA did not attemptto introduce such evidence, and because it is the 

keeper of the records of prior violations, I conclude that its failure to proffer such 

evidence means that there were no such prior violations in Ventura's aviation history. 

Finally, the record indicates that Ventura took steps to get Capt. Tarascio 

fully tested in accordance with the views of Inspector Rogers of its 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 administered the relevant tests to Capt. Tarascio on May 8, 2006. 

This tends to demonstrate that Ventura's violation was neither extraordinarily 

blameworthy, intentional nor deliberate. ,, 

In these circumstances, I conclude that a nominal civil penalty will serve the 

interests of justice. 

In consideration of the foregoing, and subject to appeal to the Administrator 

as provided in§ 13.233 of the Rules of Practice and Procedure, 14 C.P.R. 

§ 13.233, ITIS ORDERED that- , 

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 of one dollar ($1.00); and 

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2. Respondent Ventura Air Services, Inc. shall pay the sum of one dollar 

($1.00) to the Federal Aviation Administration forthwith. 

~~-iL IsZ.Benkin 

Administrative Law Judge 

(Note: This decision may be appealed to tht1 Administrator of the FAA. The 

Notice of Appeal must be filed not later than 10 days after service oftbis decision (plus five additional days, if this decision is served by mail). 14 C.F.R. 

§§ 13.233(a), 13.21l(e). The appeal must be perfected with a written brief or 

memorandum not later than 50 days after service of this decision (plus five 

additional days, if this decision is served by mail). 14 C.F.R. §§ 13.233(c), 

13.211(e). The Notice of Appeal and brief or memorandum must be either (a) 

mailed to the Federal Aviation Administration, 800 Independence Avenue, 

S.W., Washington, DC 20591; Attention: Hearing Docket Clerk, AGC-430, 

Wilbur Wright Building-Suite 2Wl000, or (b) delivered personally or via 

expedited courier service to the Federal Aviation Administration, 600 Independence Ave., S.W., Wilbur Wright Building-Suite 2WlOOO, Washington, 

DC 20591, Attention: Hearing Docket Clerk, AGC-430. 14 C.F.R. 

§§ 13.233(a), 13.210(a)(2), (1). A copy of the Notice of Appeal and brief or 

memorandum should also be sent to counsel for the FAA in this proceeding. 

14 C.F .R. § 13.233( a).] 

·;, 

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