SERVED AUGUST 11,2010 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEy^RINGS 

WASHINGTON, DC 

FEDERAL AVIATION ADMINISTRATION, 

Complainant, 

V. 

RECURRENT TRAINING CENTER, INC 

Respondent. 

FAA Docket No. CP09GL0008 

(Civil Penalty Action) 

DMS No. FAA-2009-0971 

INITIAL DECISION 

OF ADMINISTRATIVE LAW JUDGE RICHARD C. GOODWIN 

Found; The allegations were not proven. The Complaint will be dismissed. 

I. Background 

Respondent Recurrent Training Center, Inc. ("Respondent" or "RTC") Is an 

Air Agency certificated for an approved Provisional Pilot School with a Special 

Preparation Courses rating. It also held, during the period under review, a 

Training Center Certificate with Training Specifications to conduct training 

courses under 14 C.F.R. §142. 

RTC and the Complainant, the Federal Aviation Administration 

("Complainant," "FAA," or "the agency") agree on the facts underlying the 

charges in the Complaint. They submitted, per my order, an Agreed Upon 

Statement of Facts ("Statement of Facts"). 

In the parties' Statement of Facts, dated April 23, 2010 (Complainant's 

Exhibit A-1), they concur that RTC certified that two pilots, VanBerkom and 

Moore, had successfully completed Instrument Proficiency Checks ("IPC"), on 

January 16, 2008, and December 17, 2007, respectively. The IPCs were 

performed in a Flight Training Device ("FTD") Level 1, 3, or 6. Those are the 

FTDs approved for RTC. Neither FTD 1, 3 or 6 may be used for circling 

approaches or landing from a straight-in or circling approach maneuvers. The 

IPCs given to RTC's pilots did not test for these skills. 
After this point, the FAA and RTC part ways. 

Complainant asserts that an IPC must test for all the Instrument Rating 

Pracfical Test Standards ("PTS"). The PTS includes circling approaches and 

landing from a straight-in or circling approach maneuvers. As stated, 

Respondent's approved FTDs were not permitted to test for these abilifies and 

did not. Because Respondent certified that the pilots successfully completed 

their respective IPCs but failed to test for the described skills, the agency argues 

that RTC committed three violations of the FARs: 1) secfion 141.41(b)(3), which 

requires that each FTD used to obtain flight training credit have Administrator 

approval; 2) secfion 141.83(a)(1), obligating each provisional pilot school to 

comply with its training course; and 3) secfion 61.57(d), which mandates that an 

IPC must include "a representative number of tasks required by the instrument 

rating pracfical test." The agency asks for a civil penalty under 49 U.S.C. §46301 

of $3,850. 

Respondent counters that the IPCs it conducted were complete and 

conform to FAR requirements. The language of secfion 61.57(d) means that an 

IPC need not include every conceivable task, it states. RTC contends that it 

committed no violation. But even if violations are found. Respondent argues, its 

compliant attitude and the mootness of the central question^ compel the 

conclusion that no civil penalty is warranted. 

Pursuant to my Order on Mofions of April 5, 2010 - which denied 

Respondent's Mofion for Decision and Complainant's response to same and 

Complainant's own Mofion for Decision - the parties filed briefs on the issues 

presented. I find that there are no genuine issues of material fact and that the 

matter may be decided on questions of law. The case will be decided by Inifial 

Decision pursuant to 14 C.F.R. §13.201 etseq} 

II. Arguments 

Both parties zero in on language in §61.57(d) describing what a pilot must 

do to qualify to operate under IFR (instrument flight rule) or less-than-minimum 

VFR (visual flight rule) conditions. As noted, the regulation mandates that a pilot 

must pass an IPC "consisting of a representative number of tasks required by the 

instrument rating practical test." 

The agency asserts that the quoted language incorporates by its terms 

"instrument rating practical test" into the regulation. The instrument rating 

' See n. 4, p. 4. 

^ Complainant filed an Opening Brief ("Compl. Br."), Respondent submitted a Reply Brief ("Resp. Br."), 

and because the burden of proof is on the agency, Complaint was permitted to, and did, file a Response to 

Respondent's Reply Brief ("Compl. Reply Br."). The parties attached exhibits to their briefs. 

Complainant's exhibits begin with "A" followed by the exhibit number, and Respondent's exhibits begin 

with "R." 
practical test, in turn, references an FAA directive containing the contents of that 

test. The directive is entitled "The Instrument Rating Practical Test Standards" 

("PTS"). The PTS states that adherence to the regulations and to itself "is 

mandatory for evaluation of instrument pilot applicants." (FAA-S-8081-4D). The 

PTS states further that "at a minimum, the applicant must demonstrate the ability 

to perform the tasks listed in the above chart" - which tasks include the 

referenced skills that RTC admittedly did not test. The "representative tasks" 

described in the regulations. Complainant concludes, must include the skills 

listed in the PTS chart (Compl. Br., pp. 3-5). Since the approach and maneuvers 

described cannot be tested in RTC's authorized FTDs, RTC, the agency states, 

must be found in violation of §61.57(d). Violation of the other regulations 

charged in the Complaint must follow. 

Respondent, homing in on the same regulatory language, counters that 

the phrase "a representative number of tasks" is clear and unambiguous. It 

means exactly what it says: to successfully complete an IPC, a representative 

number of tasks from the PTS must be accomplished. Complainant's position, it 

argues, effectively excises the quoted language from the regulation ~ and by 

doing so, violates established rules of construction (Resp. Br., p. 5). Words are 

to be interpreted in their common and ordinary meanings. Respondent states; 

applying that principle here compels the conclusion that Respondent was under 

no obligation to test the pilots for each and every maneuver listed and described 

in the PTS (Resp. Br., p. 8). It is true that the approaches and maneuvers that 

the PTS requires an applicant to perform include those whose acknowledged 

omission form the basis for Complainant's charges. But a command of the PTS 

cannot trump the language of the regulation itself, RTC states. 

III. Decision 

I find and conclude that Respondent committed no violations. The 

Complaint will be dismissed. 

The starting point of my analysis must be an evaluation of the language of 

14 C.F.R. §61.57(d). For it is upon the question of whether Respondent 

complied with this regulation that all allegations hinge. As noted, the key 

provision of this regulation states that an IPC must include "a representative 

number of tasks" required by the instrument rating pracfical test. 

in interpreting a regulation, the decisionmaker looks at its plain language 

and analyzes the terms used in accordance with their common, ordinary 

meaning. Whelan v. U.S., 529 F.2d 1000,1002-03 (Ct.CI. 1976). Regulations 

also should be construed so that, if at all possible, no word or clause is rendered 

superfluous. Canons of construction state that all regulatory language be given 

effect. Morales v. Sociedad Espanol de Auxilio Mutuo y Beneficencia, 524 F.2d 

54 (1 Cir. 2008). 
The operative language of this regulation is clear and unambiguous. 

"Representative" in this context means "exemplary of others in the same class; 

typical" (The New American Heritage Dictionary of the Englisti Language). 

Stated another way, section 61.57(d) requires IPCs to include tasks typical of 

those required by the instrument rafing pracfical test. No more, no less. The ,. 

regulation does not name or describe particular tests which must be acceptably 

performed for successful IPS complefion. Even if (as contended by the agency) 

the PTS is incorporated into §61.57(d), the regulafion's plain language controls. 

When the words of a regulation are unambiguous, the regulafion governs; judicial 

inquiry is at an end. Tesoro Hawaii Corp. v. U.S., 405 F.3^'' 1339, 1347 (Fed.Cir. 

2005). As such, secfion 61.57(d), properly read, requires accomplishment of a 

"representafive number" of PTS tasks - not all of them, and not necessarily the 

ones named in the PTS chart. The interpretation Complainant urges, by 

contrast, would effectively delete the quoted phrase. The manifest intent of the 

regulation would be thus thwarted. This outcome cannot be accepted. 

Had Complainant been able to show that the tasks Respondent failed to 

test for ~ circling approaches or landing from a straight-in or circling approach 

maneuvers - were a necessary part of the "representative number of tasks" 

required by the instrument rating practical test, it would have prevailed. But it 

cannot do so. Thus its proof fails. 

Complainant's contrary arguments do not sway. The PTS statement upon 

which it so heavily relies, requiring an IPC applicant to perform all the tasks listed 

in a chart therein, does not have the force of law. It is contained in a FAA 

document, FAA-S-8081-4D, which was not adopted with the protections of 

notice-and-comment rulemaking under the Administrative Procedure Act ("APA"). 

The document was not published in the Federal Register (see 5 U.S.C. 

§552(a)(1)(D)). Lacking legal effect, it may not impose duties not compelled by 

the plain words of §61.57(d).^ 

Moreover, as a regulation understood through its own clear words, 

§61.57(d) requires no explaining or supplementation by reference to extrinsic 

documents. As such, the arguments of Complainant (and Respondent) which 

attempt to discern or clarify the regulafion's meaning by reference to other 

regulations, directives, and interpretations are beside the point. The parties' 

assertions of this nature are rejected.* 

^ Complainant notes that the FAA's Flight Standards Information Management System ("FSIMS") 

handbook (FAA Order 8900.1), cited by Respondent to support its argument that an IPC need not test for 

every task listed in the PTS, considers itself "guidance." It expressly states that "[s]hould the guidance in 

this order conflict with 14 CFR, 14 CFR takes precedence ..." (Compl. Reply Br., p. 2; see also Resp. Br., 

p. 4 n. 3). What is good for the goose, of course, is good for the gander. 

"* Respondent also points out that the language of §61.57(d) was changed effective October 20, 2009 ~ after 

the events of this case - to require an IPC to consist of "the areas of operation and instrument tasks 

required" by the PTS (74 Fed.Reg. 42500,42518 (August 21,2009)). It asserts that this change reinforces 

its contention that the earlier §61.57(d) language embraced an exemplary number of tasks, and not all listed 

in the PTS chart. The change, it states, would not have been necessary had the requirement to complete all 
The allegations of the Complaint were not proven. The Complaint is 

hereby dismissed.^ 

^ "7 

iichard C. Goodwin 

U.S. Administrative Law Judge 

Attachment - Service List 

PTS tasks been enshrined in the earlier version. Resp. Br., p. 6. Complainant counters that the FAA 

describes the change as a "clarification" (74 Fed.Reg., p. 42519), suggesting thereby that it is not 

substantive (Compl. Br., p. 6). Resolving this argument is unnecessary in view of my decision, and I 

express no view on it. 

This decision may be appealed to the Administrator of the FAA. The notice of appeal must conform to 

sections 13.210, 13.211(e) and 13.233 of the Rules of Practice, which require that a notice of appeal 1) be 

filed not later than 10 days (plus an additional five days if mailed) from the service date of this decision, 

and 2) be perfected with a written brief or memorandum not later than 50 days (plus an additional five, if 

mailed) from the service date of this decision. The notice of appeal and brief or memorandum must either 

be a) mailed to the Federal Aviation Administration, 800 Independence Avenue, S.W., Washington, DC 

20591, Attn: Hearing Docket Clerk, AGC-430, Wilbur Wright Building—Suite 2W1000, or b) delivered 

personally or via expedited courier service to the Federal Aviation Administration, 600 Independence 

Avenue, S.W., Wilbur Wright Building—Suite 2W1000, Washington, D.C. 20591, Attn: Hearing Docket 

Clerk, AGC-430. A copy of the notice of appeal and brief or memorandum also must be sent to agency 

counsel. Service upon the presiding judge is optional. 
FAA Docket No. CP09GL0008 

(Civil Penalty Action) 

SERVICE LIST 

ORIGINAL & ONE COPY 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, DC 20591 

Attention: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building—Suite 2W1000' 

ONE COPY 

Charles R. Bamett, III, Respondent's Counsel 

1664 Moorland Lane 

Crystal Lake, IL 60014-2985 

TEL: 815-356-8647 

FAX: 815-356-7042 

Briana Morgan, Complainant's Counsel 

Great Lakes Region, AGL-7M 

Federal Aviation Administration 

2300 East Devon Avenue 

Des Plaines, IL 60018-4696 

TEL: 847-294-7313 

FAX: 847-294-7498 

The Honorable Richard C. Goodwdn, Administrative Law Judge 

Office of Hearings, M-20 

1200 New Jersey Avenue, S.E. 

East Building Ground Floor 

Room E12-320 

Washington, DC 20590 

TEL: 202-366-2139 Attorney-Advisor 

202-366-5121 Legal Assistant 

FAX: 202-366-7536 

' Service was by U.S. Mail. For service in person or by expedited courier, use the following address: Federal 

Aviation Administration, 600 Independence Avenue, S.W., Wilbur Wright Building—Suite 2W1000, Washington, 

DC 20591; Attention: Hearing Docket Clerk, AGC-^30.