'••~r\ j r-.- T - ,f.-

V tJ IS. DEPARTMENT OF TRANSPORTION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

IN THE MATTER OF 

RECURRENT TRAINING CENTER, INC. 

FAA DOCKET NO. CP009GL0008 

(Civil Penalty Action) 

DMS No. FAA-2009-0971 

-"'=^3 DOCKET 

Complainant's Response to Respondent's Reply Brief 

The Complainant, the FEDERAL AVIATION ADMINISTRATION ("FAA" or 

"Agency"), hereby files its Response to Respondent's Reply Brief served May 21, 2010, 

as required by Judge Goodwin's Order on Motions. In addition to its Opening Brief filed 

May 5, 2010, the Complainant states as follows: 

I. REPLY ARGUMENT 

As argued in the Complainant's Opening Brief and Cross Summary Judgment 

Motion, the clear, unambiguous language of §61.57(d) specifically refers to "tasks 

required by the instrument rating practical test." Therefore, the "instrument rating 

practical test" becomes a part of the instrument proficient check (IPC) regulation and the 

requirements of the instrument rating practical test must be concurrently considered to 

properly interpret §61.57(d). The Instrument Rating Practical Test Standards ("PTS"), 

FAA-S-8081-4D, provide that an "applicant must demonstrate the ability to perform the 

tasks as listed in" the PTS chart which include TASKs that are not possible in the FTDs 
used by Respondent.' Therefore, Respondent violated the Federal Aviation Regulations 

when it certified that two airman successfully completed IPCs using its FTDs. 

A. Respondent's Reference to FAA Order 8900.1 

Respondent attempts to use the Flight Standards Information Management System 

(FSIMS) handbook, FAA Order 8900.1, to support its argument that an IPC need not test 

all of the TASKs listed in the Instrument Rating Practical Test Standard.^ However, the 

FSIMS is guidance, which is subordinate to the regulations. As discussed in the 

Administrator's Opening Brief, the regulations (which incorporate the PTS) indicate that 

the maneuvers listed in the instrument rating practical test standards are required. These 

regulations take precedence over the FSIMS handbook. In fact, as Respondent noted in a 

footnote, in Chapter 1-3 of the FSIMS, Section C discusses the protocol when a conflict 

arises between the FSIMS and the Code of Federal Regulations. It reads: 

"The guidance in this order may be found to 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 case, the order with the 

most recent date should normally be used. Should the guidance in this order 

conflict with 14 CFR, 14 CFR takes precedence.. .'^ (Exhibit A-1, attached, 

emphasis added) 

Clearly, the FSIMS was not intended to conflict with the Code of Federal Regulations 

and the authors intended the Code of Federal Regulations to take precedence over any 

conflicts between it and the FSIMS. 

The Code of Federal Regulations requires we look to "the instrument rating 

practical test." Although Respondent refers to the Instrument Rating Practical Test 

Standards as if it were an unimportant "booklet" with little authority, the PTS is 

incorporated by reference in § 61.57(d) and must be adhered to. The first page of the 

' See Complainant's Opening Brief, Exhibit A-2. 

^ See Respondent's Reply Brief at page 4. 
PTS clearly explains that "Applicants for an instrument proficiency check required by 14 

CFR section 61.57 must perform to the standards of the TASKs listed in the guidance 

provided on page 16.' 

B. Recent Change to 14 CFR § 61.57(d) 

To support its argument that the recent change to § 61.57(d) somehow gives 

meaning to the prior version of the regulation. Respondent cites a portion of the Federal 

Register that states "The proficiency check would consist of the tasks listed in the 

practical test standards for the instrument rating appropriate to the aircraft category.""* 

(emphasis added by Respondent). In the sentence prior, that volume of the Federal 

Register also states that "The proficiency check would have to be performed in the same 

aircraft category that is appropriate to the instrument privileges desired."^ (emphasis 

added). Yet, the prior version of 14 CFR § 61.57(d)(l)(i), clearly required that "The 

instrument proficiency check must be in an aircraft that is appropriate to the aircraft 

category." The Federal Register use of the word "would" does not indicate anything new 

or different from what was previously required by §61.57(d)(l)(i). Similarly, the use of 

the term "would consist o f does not contemplate a new requirement for an IPC as 

Respondent assumes it must. 

Both the prior and current versions of 14 C.F.R. § 61.57(d) require compliance 

with the instrument rating practical test standards. The rewording of § 61.57(d) did not 

add this new requirement; it simply clarified, as admitted by Respondent in its Reply 

Brief at page 6. The fact that the regulation was reworded has no effect on the 

requirement to adhere to the PTS and does not support Respondent's argument. 

^ See Complainant's Opening Brief, Exhibit A-2. 

"* See Respondent's Reply Brief at page 7. 

' See Respondent's Reply Brief, Exhibit R-2. 
C. Response to Exhibit R-1 presented in Respondent's Reply Brief^ 

Even assuming in arguendo that another operator incorrectly certified an IPC 

using an FTD that could not perform the requisite TASKs, that does not negate 

Respondent's violation of the regulations. 

D. Proposed Sanction is appropriate 

Even considering the compliant attitude cited by Respondent in its Reply Brief at 

page 7, the proposed civil penalty of $3,850 is well within the range provided in FAA 

Order 2150.3B, Appendix B, Sanction Guidance Table as discussed in Complainant's 

Opening Brief 

II. CONCLUSION 

The Respondent certified IPCs using its Flight Training Devices; however, 

Respondent's FTDs do not perform certain maneuvers which are required under 

§61.57(d) and the incorporated instrument rating practical test standards. To comply with 

the requirements of 14 C.F.R. § 61.57(d) and complete an IPC, all of the TASKs required 

by the Instrument Rating Practical Test Standards ("PTS"), number FAA-S-8081-4D 

must be completed. RTC's FTD cannot perform all of the required TASKs. Therefore, 

Respondent has violated 14 C.F.R. 61.57(d), 14 C.F.R. 141.83(a)(1), and 14 C.F.R. 

141.41(b)(3). 

WHEREFORE, Complainant respectfully requests a summary decision on the 

record be entered sustaining the Agency's issuance of a Civil Penalty in the amount of 

$3,850 against Respondent. Pursuant to the same arguments above, the Complainant 

further respectfully requests that Respondent's Motion for Decision be denied. 

* See Respondent's Reply Brief at page 3 and Exhibit R-1. 
List of Attached Exhibits 

Exhibit Number 

A-1 

Document 

Order 8900.1, Volume 1 General Instructor Guidance and 

Information. Chapter 1 Handbook Organization, Use and 

Revision 

Number of Pages 

2 

Dated: May 28,2010 Respectfully submitted. 

BriaH'a Martino 

Attorney, AGL-7M 

Federal Aviation Administration 

Office of Regional Counsel 

2300 E. Devon Avenue 

Des Plaines, IL 60018 

Phone:847-294-7313 

FAX: 847-294-7498 

briana.martino@faa. gov 
CERTIFICATE OF SERVICE 

I hereby certify that I have, this date, served the foregoing Complainant's 

Response to Respondent's Reply Brief by mailing copies thereof, via Regular Mail, as 

follows: 

Original and 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. Barnett, HI 

Respondent's Counsel 

1664 Moorland Lane 

Crystal Lake, IL 60014-2985 

The Honorable Richard C. Goodwin (Regular Mail & Facsimile) 

Administrative Law Judge 

Office of Hearings, M-20 

1200 New Jersey Avenue, S.E. 

East Building Ground Floor 

Room El2-320 

Washington, DC 20590 

Facsimile: 202-366-7536 

Dated this 28* day of May, 2010 

Tammy Gardner 

Legal Technician 
9/13/07 8900.1 CHGO 

VOLUME 1 GENERAL INSPECTOR GUIDANCE AND INFORMATION 

CHAPTER 1 HANDBOOK ORGANIZATION, USE, AND REVISION 

Section 1 General Handbook Information 

1-1. PURPOSE. This order directs the activities of Aviation Safety Inspectors (ASI) who are 

responsible for the certification, technical administration, and surveillance of air carriers, certain 

other air operators who conduct their operations in accordance with the appropriate part of Title 

14 of the Code of Federal Regulations (14 CFR), certificated airmen and other aviation activities. 

This order also provides direction for tasks related to aircraft accidents and incidents, 

investigations and compliance, the aviation safety program, administrative areas, and 

miscellaneous tasks not related to a specific regulation. In addition, it contains regional and 

district office requirements for the support of ASIs responsible for those activities. 

1-2. CANCELLATION. This handbook cancels the Federal Aviation Administration (FAA) 

orders 8300.10, 8400.10, and 8700.1. 

1-3. STANDARDIZATION AND COORDINATION. A major objective of Flight 

Standards Service (AFS) is to standardize the functions of the ASI position. For this reason, any 

change to this order must be in accordance with the approved Aviation Safety (AVS) 

International Organization for Standardization (ISO) process. 

A. Direction and Guidance. Should inspectors, supervisors, and managers find the 

direction and guidance of this order too restrictive or inappropriate for a specific case, a request 

should be made for permission to deviate fi'om the guidance. Such requests should be forwarded 

through the applicable Flight Standards regional division to the appropriate Flight Standards 

Service (AFS) headquarters division. 

B. Authority to Change This Document. The Director of Flight Standards Service, 

AFS-1, must approve all changes to this order. 

C. Conflicts With Other Federal Aviation Administration (FAA) Orders. The 

guidance in this order may be found to 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 case, the order with the most recent date should normally be used. 

Should the guidance in this order conflict with 14 CFR, 14 CFR 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. 

D. Availability of this Order. This order is available to both FAA personnel and to 

individuals outside the FAA. Flight Standards inspectors should advise operators of the 

availability of this order. 

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9/13/07 8900.1 CHGO 

1-4. HANDBOOK REVISIONS. Individuals at all levels of the Federal Aviation 

Administration (FAA) and individuals in the aviation industry are encouraged to make 

suggestions for revisions to the order. 

A. Handbook Revision Process. ISO process AFS-100-001 is the procedure for 

revising this order. The need for a revision may become evident when a change occurs in the 

aviation industry, national and international regulatory bodies, in 14 CFR, or FAA policies. 

B. Policy Questions or Concerns. Any questions or concern regarding policy must be 

coordinated with field office management. If the issue cannot be resolved at the field office 

level, the office management may email the FSIMS Librarian with a copy to the field office's 

region. 

C. Review and Notification. All questions, concerns, or suggestions submitted will be 

reviewed and considered by the appropriate policy division. The FSIMS Librarian will 

acknowledge receipt of each suggestion. 

1-5. DIRECTIVE AND GUIDANCE INFORMATION. 

A. Directive Information. Directive information is information that is considered 

directive in nature and will contain terms such as "shall," or "must," and means the actions are 

mandatory. "Shall not" means the action is prohibited. The use of these terms will leave no 

flexibility, and their direction shall be followed unless otherwise authorized by Headquarters. 

B. Guidance Information. Guidance information is information considered guiding in 

nature and will contain terms such as "will," "should," or "may." These terms indicate actions 

that are desirable, permissive, or not mandatory, and allow flexibility. 

RESERVED. Paragraphs 1-6. through 1-25. 

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