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SERVED MAY 21, 2010 

US- DEPARTMENT OF TRANSPORTATION ^ ..,. 

OFFICE OF HEARINGS " '" •.': ' "- ^- 1 >, f ij- :i ' 

WASHINGTON, D.C. - -

IN THE MATTER OF '•'' I-" A?:' NG DOCiv-.: i 

RECURRENT TRAINING CENTER, INC. 

FAA DOCKET NO. (CP09GL0008) 

(Civil Penalty Action) 

DMS NO. (FAA-2009-0971) 7 • 

---I 

RESPONDENT'S REPLY BRIEF ?=1 

L,J 

COMES NOW Respondent, RECURRENT TRAINING CENTER, INC., by and through 

its counsel, BARNETT LAW OFFICES, P.C., pursuant to the Court s ORDER ON MOTIONS 

and hereby files its REPLY BRIEF in the instant matter and states a.s follows: 

1. AGREED STATEMENT OF FACTS 

1. On September 21, 2009, Respondent, Recurrent Training Centers, Inc., was advised 

through a Final Notice of Proposed Civil Penalty that the FAA proposed to assess a 

civil penalty in the amount of $3,850. 

2. On October 5, 2009, the FAA received Respondent's timely written request for a 

hearing. 

3. Respondent holds and at all times mentioned herein held an Air Agency Certificate 

Number R9KS949K for an approved Provisional Pilot School with a Special 

Preparation Courses rating is.sued by the FAA. 

4. RTC also holds and at all times mentioned herein held Training Center Certificate 

Number R9KX049K with Training Specifications to conduct training courses with 

respect to 14C.F.R-142. 
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5. On or about January 16, 2008, RTC certified that Mr. VanBerkom successfully 

completed an Instrument Proficiency Check and on December 17, 2007, RTC 

certified that Mr. Moore successfully completed an Instrument Proficiency Check. 

These IPCs were performed in a Flight Training Device ("FTD"), Level 1, 3, or 6. 

6. Circling Approaches and Landing from a Straight-in or Circling Approach maneuvers 

cannot be performed with a Flight Training Device ("FTD") Level 1, 3 or 6. 

7. FTD Level 1, 3 and 6 are the FTDs approved for RTC. 

IL ISSUE 

In the act of completing an Instrument Proficiency Check, whether it is required by 

regulation to conduct a circling approach and a landing from straight-in or circling approach, 

as suggested by the Practical Test Standard Book. 

III. ARGUMENT 

The Complainant is asking this Court to take a flying leap in this matter; a leap that is not 

required, rational or proper. Simply put, the Complainant is asking for the Court to ignore 

the plain meaning of the regtilaiion as well as the Administrator's own previous 

interpretations in the form of FAA Orders, Advisory Circulars, Legal Interpretation Letters 

and the Federal Register to leap to the conclusion the Piuctical Test Standards booklet is 

"incorporated into §61.57(d) by reference"' and now becomes the law. While the concept of 

using F ID'S to conduct IPC's may be a case of first impression before this court, it should be 

noted that Rl C was not trying to work thru a loop whole or exploit a legal technicality. To 

the contrary, the practice of conducting IPC's in an FTD by performing a representative 

number of TASK, at the discretion of the examiner was a wide spread practice in the industry. 

1 Complainant's Opening Brief, Part lil.A.L, page 2. 
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For example, wc have attached the certification form for an IPC issued to Van Berkom by 

Flight Safety in their FTD. (see Respondent's Exhibit R-1) Further, RTC has conducted 

IPC's in its FTD's for some twenty years with the full knowledge and consent of the FAA 

prior to the present enforcement action. We are here because the Complainant's (more 

precisely, the Springfield FSDO's and now Regional Counsel's) interpretation of its own 

regulation in this particular matter is arbitrary, capricious and otherwise not according to law 

3S we will more fiilly set forth below. 

A. All TASKS Contained in the Instrument Rating Practical Test Are 

NOT Required to Successfully Conduct an IPC. 

1. The language of 14 CFR §61.S7(d) requires a representative number 

of TASKS be accomplished. 

As the Complainant's Opening Brief stated, 14 CFR §61.57(d) read as follows ai: the time 

of the IPC's which are the subject of this matter: 

14 CFR 61 -57(d) reads in pertinent part: 

d) Instrument proficiency check. 

Except as provided in paragraph (e) of this section, a person who 

does not meet the instrument experience requirements of paragraph 

(c) of this section within the prescribed time, or within 6 calendar 

months after the prescribed time, may not serve as pilot in 

command under IFR or in weather conditions less than the 

minimums prescribed for VFR until that person passes an 

instrument proficiency check consisting of a representative 

number of tasks (emphasis added) required by the instrument 

rating practical test. 

(1) The instrument proficiency check must be— 

(i) In an aircraft that is appropriate to the aircraft category; 

(ii) For other than a glider, in a flight simulator or flight training 

device (emphasis added) that is representative of the aircraft 

category; 
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The Re.spondcni finds itself in the unusual position of arguing that the Chevron^ doctrine 

should be controlling in this matter. The Administrator's official interpretation is correct when 

used in FAA Order 8900.1, which states in pertinent part; 

Instrument Proficiency Check. An instrument proficiency check 

must be accomplished in a category of aircraft in which the pilot is 

rated and shall consist of one or all of the procedures and 

maneuvers from the instrument pilot practical lest standards 

(emphasis added). 

Furthermore, not only did the Administrator "get it right" in the Order, but FAA Orders 

take precedent over FAA booklets (e.g. PTS). If an FAA Order is in conflict with an FAR, 

because all FAA Orders cannot be updated simultaneously with the FARs, the FAR takes 

precedence.' It is important to note, that in the instant case, the FAA Order was written in 2007, 

well aiter 14 CFR 61 -57(d) was effective. In addition, as previously mentioned in Respondent's 

Motion for Decision, the Administrator has published an Advisory Circular, drafted a legal 

interpretation letter, published similar regulations with clear direction to accompUsh all TASKS 

in the PTS and revised the regulation that is the subject of this matter. Therefore, based on the 

hierarchy of laws and the Chevron doctrine, the position taken by the Springfield FSDO and 

Regional Counsel in the instant matter is not supportable. In a recent FAA enforcement case that 

was appealed to the U.S. Court of Appeals for the District of Columbia, the court stated "[a]n 

agency's failure to come to grips with conflicting precedent constitutes an inexcusable departure 

from the essential requirement of reasoned decision making," (Ramaprakash v. FAA, 346 F.3d 

1121,1125 (D.C. Cir. 2003) 

2 Chevron U.S.A.. Inc. v. Natural Resources Defense Council, Inc. 467 US. 837, 863, (1984). 

3 Chapter 1, Section of FAA Order 8900.1 reads in pertinent part: 

"C. Conflicts With Other Federal Aviation Administnition (FAA) Orders, The guidance in this order may be 

found 10 be in conflict with that in other FAA orders and directives. This situation may arise inadvertently or 

because it is Impractical to revise all orders simultaneously. In such a ca.se, the order with the most recent date 

should normally be used. Should the guidance in this order conflict with 14 CFR, 14 Cl'R takes precedence. 

Inspectors should refer questions about such conflicts to their immediate supervisors. Supervisors and managers may 

contact the respective AFS Division through the regional office to resolve such questions." 
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Moreover, in order to take the Complainant's "leap" this Court must ignore the word 

"representative" in its reading of FAR 61.57(d). This is contrary to fiindamental rules of 

statutory construction. For instance, as the Supreme Court has stated "[i]n interpreting a statute, 

a court should always turn lo one cardinal canon before all others. [CJourts must presume thai a 

legislature says in a statute what it means and means in a statute what it says there." Cormecticut 

National BankV, Germain IHS.Ct 1146, 1149 (1992). The Complainant's interpretation can 

be likened to reading a government regulation (hat states "Do not accomplish the following 

action" as "Do accomplish the following action". It completely alters the meaning of the 

regulation to not give meaning to the words in the regulation. 

The Complainant ignores the word "representative" and immediately makes the argument 

that "the practical test become a mandatory part of the IPC regulation'" If the Administrator has 

consistently ignored the plain meaning of the language of the regulation, RTC would still have a 

compelling argument; however, that is not the case. In fact, the Administrator has consistently 

interpreted FAR 61.57(d) to require exactly the opposite of what the Complainant is arguing here 

and has demonstrated that consistency in FAA Orders, Advisory Circulars, Legal Interpretation 

Letters and the Federal Register. 

The Complainant also incorrectly alleges that the PTS is mandatory for IPC's. The 

Complainant quotes language from the PTS in Complainant's Opening Brief, "Adherence to the 

provisions of the regulations and the practical test standards is mandatory for evaluation of 

instrument pilot applicants." While we agree with the Complainant that this is unambiguous, 

strong wording, it simply does not apply to pilots who are not instrument pilot applicants. As the 

Court can see, the PTS is mandatory for instrument pilot applicants, not for instrument pilots 

who are merely seeking a proficiency check. A pilot seeking an IPC is not an "applicant". Thai 

4 Complainant^s Opening Brief, Part IIT.A.l., page 3. 
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pilot has already applied, and received, an instrument rating. The PIS standards are not 

mandatory for the pilot seeking an IPC. 

The PTS reads in pertinent part: 

"Instrument Proficiency Check. 14 CFR part 61.57(d) seLs forth the requirements for an 

instrument proficiency check. Ihc person giving that check shall use the standards and 

procedures contained in this PTS when admiriistering the check. A representative number of 

TASKs, as determined by the examiner/instructor, must be selected to assure the competence of 

the applicant to operate in the IFR environment. As a minimum, the applicant must dewionstrate 

the ability to perform the TASKs as listed in the above chart. The person giving the check should 

develop scenarios to assess the pilot's ADM and risk management skills during the IPC."* 

Note, the PTS does not say "As a minimum, the applicant must successfully demonstrate 

all the TASKs listed in the above chart. It is clear from Ihe language in the PTS that the 

evaluator uses the PTS merely as guidance to determine if an applicant should successfiilly pass 

the evaluation. It is not intended to fiinction with the inflexibility of an FAA Order, nor should 

it. If that were the case, few applicants would be able to fly the "perfect" check ride under an 

unforgiving set of standards. 

2. Recent Change to 14 CFR 61.57(d) 

Respondent argues that the recent change to FAR 6L57(d) would not have been 

necessary had the requirement to complete all of the PTS TASKS been included in the version of 

the regulation that was current at the time of the alleged violations. To counter Respondent's 

argument, the Complainant argues the Federal Register/ Vol 74, No. 161 pg 42519* is silent on 

whether the change was a new rule. While wc agree that the change was a clarification, a more 

helpfiil volume of the Federal Register can be found at Federal RegisterA/'ol 72, No. 25 at page 

5818 (attached as Exhibit R-2). The notes in thi.s volume of the Federal Register state: 

5 FAA-S-808I-1D, INSTRUMENT RATTNG Practical Test Standards for AIRPLANE HELICOPTER POWERED 

LIFT 

6 Complainant's Opening Brief, Part III.A.3., page 6. 
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"The proficiency check would consist o/the tasks listed in the practical lest 

standards for the instrument rating appropriate to the aircraft category (emphasis added)". 

Clearly, the new version of 61.57(d) contemplates the new requirements for an IPC. 

Once again. Respondent argues that change would be unnecessary had the previous version 

clearly required the accomplishment of all the tasks in the practical test standard. 

B. In the alternative, the Agency's proposed sanction is not appropriate 

based upon the Agency's sanction guidance. 

Immediately upon notification that RTC may have been in violation of the Federal 

Aviation Regulations, and despite that fact that RTC did not agree with the alleged assessment of 

a violation, RTC ceased to conduct IPC's in its FTDs. Subsequently, FAR §61.57(d) was 

changed to require all of the tasks in the PTS to be accomplished during an IPC. A civil penalty 

will not serve to deter any conduct by the Respondent, as the regulations no longer allow that 

conduct to exist. In addition, the Respondent has demonstrated that they are no longer 

conducting IPCs in their FTDs. RTC's compliant attitude, as well as the fact that this issue is 

now moot, render any sanction imposed by the Administrator a.s unduly harsh. 

IV. CONCLUSION 

The Complainant alleges that RTC has violated FAR 61.57(d) because that regulation, 

according to the Complainant, requires an In.strumenl Proficiency Check to consist of ALL the 

TASKs contained in the Practical Test Standards, including circling approaches which csmnot be 

conducted in RTC's Flight lYaining Devices. To have a more re.strictive interpretation applied 

by way of an ambiguous PTS is illogical and contrary to the rules of statutory construction and 

agency precedent. 
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RTC does not contend that it is equipped to conduct a circling approach in its FHght 

Training Device. RTC docs contend, however, that not ALL of the TASKS contained in the 

Instrument Rating Practical Test Standards are required to successfully complete an Instrument 

Proficiency Check. RTC bases its position firmly on the plain language of FAR 61.57(d), which 

at the time of the Instrument Proficiency Checks, allowed the instructor to choose from a 

REPRESENTATIVE number of TASKs contained in the Instrument Rating Practical Test 

Standards. This plain language interpretation is further supported by case law regarding 

statutory construction. In addition, the FAA itself supports RTCs position with its own 

precedent in documents authored and published by the FAA which include: 

• FAA Order (emphasis added) 8900.1, also known as the Flight Standards Information 

Management System handbook which clearly states that an IPC will "consist of ONE OR 

ALL of the procedures and maneuvers from the instrument pilot practical test stiuadards 

(PTS)." 

• The FAA has recently changed FAR 61.57(d) to require all of the TASKs contained in 

the P TS be completed when accomplishing an IPC. A change thai would be unnecessary 

had the instant version of the FAR had the same requirement. 

• The FAA's own Advisory Circular 61-98A which clearly states that an instructor has 

"discretion in selecting appropriate maneuvers and procedures for the competency 

check". 

• The FAA's own Legal Interpretation Letter dated less than one year ago vsiiich clearly states that 

"approved FTDs may be used to meet the recent flight experience requirements, as long 

as a given FTD is approved for such training and proficiency check." 
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In the instant case, the Complainant has chosen to ignore the plain meaning of the FAR's 

and three of it's the Administrators own publications in order to allege a violation of F^VR 

61.57(d). 

Lastly, the Complainant alleges that the IPC's could only be conducted within the scope 

of RTC's training program. The Administrator's position on this issue is contrary to the FAA's 

own FSTMS Order which expressly provides for the combining of competency reviews and flight 

checks. 

Due to the fact that the FAR has been recently changed, and RTC is no longer conducting 

IPC's in its FTD's, this point of law has become moot but for the looming civil penalty facing 

RTC. Nonetheless, RTC did have a sound basis for conducting IPC's in its FTDs and 

respectfully asks this court to dismiss this Complaint. 

WHEREFORE, Respondent asks this Court to grant the pending Motion for Decision 

and dismiss the instant Complaint in its entirety. 
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List of Attached Exhibits 

Exhibit Number 

R-1 

R-2 

Document 

Flight Safety Training Record of VanBerkom 

Federal Register, Vol. 72, No.25, page 5818 

Number of Pages 

1 

Dated: May 21,2010 

Respectfully submitted. 

Attorney: 

Recurrent Trainiiig Center, Inc. 

Charles R. Bamett, 111 

BARNETT LAW OFFICES, P.C. 

1664 Moorland Lane 

Crystal Lake, Illinois 60014-2985 

(815) 356-8647 

(815) 356-7042 (FAX) 

10 
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CERTIFICATE OF SERVICE 

The undersigned certifies that ihe foregoing Reply Brief was served via US Regular Mail 

as follows: 

ORIGINAL AND ONK COPY 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, DC 20591 

Attention: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building—Suite 2W1000 

FAX: 202-493-5142 

ONE COPY 

Briana Martino, Complainant's Counsel 

Great Lakes Region, AGL-7M 

Federal Aviation Administration 

2300 East Devon Avenue 

Des Plaines, IL 60018-4696 

TEL: 847-294-7713 

FAX: 847-294-7498 

The Honorable Richard C. Goodwin, Administrative Law Judge 

Office of Hearings, M-20 

1200 New Jersey Avenue, S.E. 

East Building Ground Floor 

Room El2-320 

Washington, DC 20590 

TEL: 202-366-2139 Attorney-Advisor 

202-366-5121 Legal Assistant 

FAX: 202-366-7536 

Dated this 21" day of May, 2010. 

Charles R. Bar 

Attorney for Respondent 

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