Flt Training Intl v. FAA ( 2023 )

Case: 20-60676 Document: 00516621078 Page: 1 Date Filed: 01/24/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
January 24, 2023
No. 20-60676 Lyle W. Cayce
Clerk
Flight Training International, Incorporated,
Petitioner,
versus
Federal Aviation Administration,
Respondent.
Petition for Review of an Order of the
Federal Aviation Administration
FAA Order No. 8900.1 CHG 711
Before King, Dennis, and Ho, Circuit Judges. *
James L. Dennis, Circuit Judge:
This case concerns rules and regulations issued by the Federal
Aviation Administration (FAA) governing two types of pilot credentials:
airline transport pilot (ATP) certificates, which enable pilots to fly for
airlines, and type ratings, which authorize pilots to command complex,
“type-rated” aircraft. Flight Training International, Inc. (FTI), a provider
of flight training courses, wants to offer a course that uses type-rated aircraft
*
Judge Ho concurs in the judgment only.
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No. 20-60676
but culminates in the issuance of an ATP certificate without a type rating. A
rule issued by the FAA in 2020 prohibits it from doing that, so FTI petitioned
us to set aside the rule. See 49 U.S.C. § 46110. FTI argues that the rule
effectively amends portions of 14 C.F.R. pt. 61, and therefore should have
been promulgated only after notice and comment in accordance with the
Administrative Procedure Act (APA). We agree, and therefore grant the
petition.
I.
A.
The FAA regulates civil aviation within the United States and holds
authority over the issuance of pilot certificates. See 49 U.S.C. § 44702(a).
One such certificate is the ATP certificate. See 14 C.F.R. § 61.5(a)(1)(vi). A
person must hold an ATP certificate to serve as a pilot in scheduled
commercial, passenger-carrying operations, such as those offered by major
airlines. See id. § 121.436(a).
ATP certificates may be issued with or without a type rating. A type
rating is an additional credential, “placed on [the] pilot certificate,” id. §
61.5(b), that allows pilots to command complex aircraft known as type-rated
aircraft. See id. § 61.31(a)(d). For example, a pilot flying a Boeing 737
passenger plane for a commercial airline must have an ATP certificate with a
Boeing 737 type rating. A pilot who is issued an ATP certificate without a
type rating can also add a type rating to the certificate at a later date. See id.
§ 61.157(b).
The FAA has promulgated regulations, codified under 14 C.F.R. pt.
61, that govern the processes for obtaining an ATP certificate and adding a
type rating to that certificate. An applicant who “satisfactorily accomplishes
the training and certification requirements” for an ATP certificate or a type
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rating, as applicable, is “entitled” to receive that certificate or rating. Id. §
61.13(a)(4).
To obtain an ATP certificate, a pilot must pass a “practical test.” Id.
§§ 61.43(a), 61.153(h). The test must cover “areas of operation” listed in the
regulations, such as preflight preparation and procedures, takeoff and
departure, in-flight maneuvers, landings, emergency procedures, and
postflight procedures. Id. § 61.157(e). 1 According to the FAA, the tasks that
must be completed on a given test will depend on the aircraft used in the test.
For instance, a pilot who takes the test in a Boeing 737 with turbojet engines
will be required to master more complex procedures and systems than if they
had taken the test in a light twin aircraft with wing-mounted propellers.
Regardless of whether the test is administered for purposes of issuing an ATP
certificate, a type rating, or both, the pilot must: “(1) [p]erform[] the tasks
specified in the areas of operation for the airman certificate or rating sought;
(2) [d]emonstrat[e] mastery of the aircraft by performing each task
successfully; (3) [d]emonstrat[e] proficiency and competency within the
approved standards; and (4) [d]emonstrat[e] sound judgment.” Id. §
61.43(a).
Merely completing a practical test does not automatically entitle a
pilot to an ATP certificate. The pilot must also, among other things, possess
sufficient aeronautical experience and pass an aeronautical knowledge test.
See id. § 61.153(f), (g), 61.157(a)(2)(ii). And pilots seeking an ATP certificate
to fly multiengine aircraft must complete a training course that includes 30
1
Through further interpretive rulemaking (not challenged here), the FAA has
broken these “areas of operation” down into a detailed set of “Tasks” (e.g., “Preflight
Assessment,” “High Altitude Aerodynamics,” “Steep Turns,” etc.), which are then
divided further into dozens of discrete skills and areas of knowledge that must be tested.
See FAA, U.S. Dep’t of Transp., FAA-S-ACS-11, Airline Transport Pilot and Type Rating
for Airplane: Arman Certification Standards (June 2019).
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hours of academic instruction and 10 hours of flight simulation. See id. §§
61.153(e), 61.156. The FAA characterizes the training requirements for an
ATP certificate as “extensive.”
A pilot who wishes to add a type rating to an existing ATP certificate
or be issued a type rating concurrently with an ATP certificate must
“perform the practical test in actual or simulated instrument conditions,”
subject to exceptions not relevant here. Id. § 61.157(b)(3); see also id. §
61.157(a)(1) (“The practical test for an [ATP] certificate is given for . . . [a]n
aircraft type rating”). Such pilots must also document that they received
training in the “areas of operation” for the type rating sought. Specifically,
the pilot:
(1) Must receive and log ground and flight training from an
authorized instructor on the areas of operation under [§ 61.157]
that apply to the aircraft type rating; [and]
(2) Must receive a logbook endorsement from an authorized
instructor that certifies the applicant completed the training on
the areas of operation listed under [§ 61.157(e)] that apply to
the aircraft type rating[.]
Id. § 61.157(b)(1)-(2). Some pilots applying for type ratings are exempt from
these requirements, but only if they “present[] a training record that shows
completion” of an “approved training program for the aircraft type rating.”
Id. § 61.157(c).
To summarize: in order to obtain an ATP certificate, a pilot must: (1)
pass a practical test; and (2) satisfy various other regulatory requirements.
See id. § 61.153. To add a type rating to an ATP certificate, a pilot must: (1)
pass a practical test, which may be concurrent with the ATP certificate
practical test; and (2) satisfy certain training-related prerequisites. See id. §
61.157(b).
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B.
FTI is a Texas-based flight training center. Pursuant to a delegation
of authority from the FAA, FTI’s examiners are authorized to conduct flight
tests and “issue temporary pilot certificates and ratings to qualified
applicants.” 14 C.F.R. § 183.23; see 49 U.S.C. § 44702(d)(1) (authorizing
the FAA to delegate examination, testing, inspection, and issuance of
certificates to “qualified private person[s]” and their employees). Although
FTI is a private enterprise, its examiners “represent the Administrator” of
the FAA when conducting practical tests for pilot certificates and type
ratings. 14 C.F.R. § 61.47(a).
For years, FTI has offered a flight training course which, though
utilizing type rated aircraft, culminates in the issuance of an ATP certificate
without a type rating. This course is shorter and less expensive than FTI’s
combined course, in which students receive an ATP certificate with a type
rating. FTI asserts that the opportunity to offer a standalone ATP course
benefits student pilots who wish to defer their type rating until after they have
obtained employment with a private airline and determined which particular
type rating they need.
The FAA’s Denver office approved FTI’s standalone ATP course in
2012. However, on February 25, 2019, the Acting Manager of the FAA’s Air
Transportation Division instructed the Denver office to revoke approval of
this program. The Acting Manager found that, because FTI’s course was
conducted in type rated aircraft, FTI could not issue ATP certificates upon
successful completion of the course without also issuing type ratings. The
Acting Manager reasoned that “the identical Practical Test Standards are
used for both the ATP and the additional type rating” and “[s]uccessful
completion of curricula utilizing the type rated aircraft result [sic] in the
applicant being tested to act as pilot in command of the aircraft.” Therefore,
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the Acting Manager concluded, “denial of or failure to issue the type rating
in conjunction with the ATP certificate is denying the applicant of a type
rating for which all requirements have been met.”
The FAA notified FTI of the revocation on March 18, 2019. Although
the FAA withdrew that revocation a few months later, it circulated a “policy
memo” on December 20, 2019, largely tracking its February 25
communiqué. This new policy memorandum specified that, if a training
center offers a practical test in a full flight simulator (FFS) that replicates a
type-rated aircraft, the examiner must issue an ATP certificate with the
applicable type rating. The memorandum stated that, under § 61.157, “the
same practical test is given for an ATP certificate and an aircraft type rating,”
and therefore “an examiner must issue the ATP certificate with the . . .
applicable type rating to an applicant who successfully completes a practical
test for an ATP certificate conducted in an FFS which replicates a type rated
aircraft.”
On June 20, 2020, the FAA amended Order 8900.1 in conformance
with the December 20, 2019 policy memorandum. See FAA Order 8900.1,
Flight Standards Information Management System (FSIMS), available at
https://drs.faa.gov/browse/ORDER_8900.1/doctypeDetails. 2 That
amendment added the following paragraph to a list of provisions that training
center evaluators “must observe:”
When conducting a practical test for the issuance of a pilot
certificate in a type-rated aircraft or simulator, the event should
be treated as a concurrent test, and the [training center
evaluator] must issue the pilot certificate with the type rating.
2
Order 8900.1 is a public document intended to “standardize the functions” of
aviation safety inspectors and “provide consistency to industry stakeholders.” FAA Order
8900.1, Vol. 1, Ch. 1, § 1, ¶ 1-3.
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For example, if the TCE is conducting a practical test for the
issuance of an ATP Certificate in a type-rated airplane, the
ATP Certificate with the type rating must also be issued if the
test is successfully completed.
FAA Order 8900.1, Vol. 3, Ch. 54, § 2, ¶ 3-4355(D)(6)(f) (June 20, 2020).
For ease of reference, we refer to this as the “Must-Issue Rule” or the
“Rule.” 3
FTI timely petitioned for review of the Rule pursuant to 49 U.S.C. §
46110. 4 FTI argues that the Rule will necessarily force it to violate 14 C.F.R.
pt. 61 any time one of its students takes a practical test in a type rated aircraft
and qualifies for an ATP certificate but not a type rating. That is because,
according to FTI, the regulations would require them to withhold a type
rating, while the Rule would obligate them to issue one. FTI argues that,
because the Rule contradicts FAA regulations, it is a legislative rule that
could only be promulgated after notice and comment procedures in
accordance with the APA. See 5 U.S.C. § 553. It is uncontested that the Rule
was not promulgated through those procedures.
3
While FTI’s petition was pending, this paragraph was renumbered and
underwent non-substantive changes, which do not affect our analysis. See FAA Order
8900.1, Vol. 3, Ch. 54, § 2, ¶ 3-4355(H)(6), available at
https://fsims.faa.gov/PICDetail.aspx?docId=8900.1,Vol.3,Ch54,Sec2 (codifying the
current version of the Must-Issue Rule).
4
49 U.S.C. § 46110(a) provides, in relevant part, that “a person disclosing a
substantial interest in an order issued by . . . the Administrator of the Federal Aviation
Administration with respect to aviation duties and powers designated to be carried out by
the Administrator . . . may apply for review of the order by filing a petition for review in . .
. the court of appeals of the United States for the circuit in which the person resides or has
its principal place of business.” Once the petition is transmitted to the Administrator, “the
court has exclusive jurisdiction to affirm, amend, modify, or set aside any part of the
order[.]” Id. § 46110(c). Here, FTI’s petition is limited to the Rule as codified in Order
8900.1 and does not challenge any other agency actions. The FAA does not contest
jurisdiction, and we independently agree that we possess jurisdiction.
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The FAA counters that the Rule is consistent with Part 61 and merely
clarifies what those regulations already say. As such, the FAA argues, the
Rule is “interpretive” and exempt from the APA’s notice-and-comment
requirement. 5 U.S.C. § 553(b)(A).
II.
A.
Under the APA, an agency must provide the public with notice and an
opportunity to comment before it issues a final, legislative rule. See 5 U.S.C.
§ 553(b), (c). Under this section, legislative rules are defined by what they
are not: “interpretive rules, general statements of policy, or rules of agency
organization, procedure, or practice.” Id. § 553(b)(A).
An interpretive rule is one that “clarifies, rather than creates, law.”
Professionals and Patients for Customized Care v. Shalala, 56 F.3d 592, 602 (5th
Cir. 1992). Interpretive rules “advise the public of the agency’s construction
of the statutes and rules which it administers.” Perez v. Mortgage Bankers
Ass’n, 575 U.S. 92, 97 (2015) (quoting Shalala v. Guernsey Memorial Hosp.,
514 U.S. 87, 99 (1995)). When an agency issues an interpretive rule, it “does
not claim to be exercising authority to itself make positive law.” Syncor
Intern. Corp. v. Shalala, 127 F.3d 90, 94 (D.C. Cir. 1997).
By contrast, legislative rules “bind the public and courts in a manner
indistinguishable from a statute.” Richard J. Pierce, Jr., Distinguishing
Legislative Rules from Interpretive Rules, 52 ADMIN. L. REV. 547, 552 (2000)
(citing Kenneth Davis & Richard Pierce, Administrative Law Treatise 233 (3d
ed. 1994)). Such rules are accorded the “force and effect of law” in the
adjudicative process because they are “promulgated pursuant to legislative
authority delegated to the agency by Congress.” St. Mary’s Hospital, Inc. v.
Harris, 604 F.2d 407, 408 (5th Cir. 1979); see Chrysler Corp. v. Brown, 441
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U.S. 281, 302 (1979)). The hallmark of a legislative rule is that it “modifies
or adds to a legal norm.” Syncor, 127 F.3d at 95 (emphasis omitted). 5
We have previously recognized that that “[i]f a second rule repudiates
or is irreconcilable with a prior legislative rule, the second rule must be an
amendment to the first; and, of course, an amendment to a legislative rule
must itself be legislative.” Clean Water Action v. E.P.A., 936 F.3d 308, 314
n.11 (5th Cir. 2019) (cleaned up). This is consistent with the approach
recommended by Judge Williams of the D.C. Circuit, who stated that a rule
is properly considered legislative when it “effectively amends a prior
legislative rule.” American Mining Congress v. Mine Safety & Health Admin.,
995 F.2d 1106, 1112 (D.C. Cir. 1993). 6 If a rule is legislative in nature, it must
pass through notice and comment. Guernsey Memorial Hosp., 514 U.S. at 100(notice and comment is “required” if a rule “adopt[s] a new position
5
Legislative rules are sometimes called “substantive rules.” In truth, the
requirement of notice and comment attaches only to rules that are both “substantive” and
“legislative.” A rule may be called “substantive,” in the sense that it is neither procedural
nor a mere policy statement, if it is binding on the rights and obligations of private persons.
See Texas v. U.S., 809 F.3d 134, 171, 176 (5th Cir. 2015), cert. granted, 577 U.S. 1101 (2016),
aff’d by an equally divided court, 579 U.S. 547 (2016). But such a rule will still be exempt
from notice and comment if all that it does is “interpret[]” existing, substantive law. 5
U.S.C. § 553(b)(A). What makes a rule “legislative” is that it spawns from the agency’s
congressionally-delegated powers (if any) to create law. Chrysler Corp., 441 U.S. at 302-
303. Such rules bind courts, not because they are entitled to deference, but because they
actually are law. See Kisor v. Wilkie, 139 S. Ct. 2400, 2420 (2019). In other words, it is only
when the agency seeks to make substantive law that notice and comment is required (unless
Congress has elsewhere excepted the agency from this requirement). See id.; Perez, 575
U.S. at 96; Chrysler Corp., 441 U.S. at 303.
6
A word of caution is in order. The fact that a rule reverses an agency’s prior
interpretation of its regulations does not make the rule legislative. See Perez, 575 U.S. at 101
(“Because an agency is not required to use notice-and-comment procedures to issue an
initial interpretive rule, it is also not required to use those procedures when it amends or
repeals that interpretive rule.”). All that matters under the “effectively amends” test is
whether the rule is inconsistent with an underlying legislative rule.
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inconsistent with any of the Secretary’s existing regulations”). Applying our
Circuit’s precedent for determining whether a rule is legislative, we conclude
that the Must-Issue Rule is a legislative rule adopted without notice and
comment as required by the APA.
B.
Before considering whether the Must-Issue Rule effectively amends
Part 61, we pause to address another one of FTI’s arguments: that the Rule
is legislative because it is “binding on its face” and “withdraws the agency’s
. . . previously-held discretion.” This argument misapplies the proper legal
standard.
Whether a rule limits agency discretion is relevant only in determining
if the rule is a “general statement[] of policy” under the APA. 5 U.S.C. §
553(b)(A). As we stated in Texas v. U.S.:
We evaluate two criteria to distinguish policy statements from
substantive rules: whether the rule (1) imposes any rights and
obligations and (2) genuinely leaves the agency and its
decision-makers free to exercise discretion.
809 F.3d at 171 (emphasis added) (cleaned up).
The text of the APA makes clear that “general statements of policy”
are different from “interpretive rules,” and an agency action need only fall
under one of these categories to be exempt from notice-and-comment
procedures. 5 U.S.C. § 553(b)(A). In contrast to policy statements—which
are “issued by an agency to advise the public prospectively of the manner in
which the agency proposes to exercise a discretionary power,” Lincoln v.
Vigil, 508 U.S. 182, 197 (1993) (quoting Chrysler Corp., 441 U.S. at 302,
n.31)—interpretive rules explain what an agency thinks a statute or
regulation actually says. If the law is mandatory, then it is natural for an
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agency’s restatement of the law to speak in mandatory terms as well. 7 We
therefore join other Circuits in rejecting the proposition that a rule cannot be
interpretive if it limits discretion or uses binding language. See American Min.
Congress, 995 F.2d at 1111 (“[R]estricting discretion tells one little about
whether a rule is interpretive”); Syncor, 127 F.3d at 94 (distinguishing policy
statements and interpretive rules); Warder v. Shalala, 149 F.3d 73, 82-83 (1st
Cir. 1998) (interpretive rules may “bind agency personnel”), cert. denied, 526
U.S. 1064 (1999); Metropolitan School Dist. of Wayne Tp., Marion County, Ind.
v. Davila, 969 F.2d 485, 493 (7th Cir. 1992) (“All rules which interpret the
underlying statute must be binding because they set forth what the agency
believes is congressional intent”), cert. denied, 507 U.S. 949 (1993); see also
John F. Manning, Nonlegislative Rules, 72 GEO. WASH. L. REV. 893, 919 n.36
(2004) (discussing judicial developments and concluding that “a lack of
binding effect is no longer the distinguishing feature of interpretive rules”).
FTI cites no contrary holding from this Circuit. In Texas v. U.S., 787
F.3d 733 (5th Cir. 2015), the Court held the Government failed to make a
strong showing that the Deferred Action for Parents of Americans and
Lawful Permanent Residents (DAPA) program did not require notice and
comment. See id. 762-67. But the Court’s discussion of agency “discretion”
was limited to “[t]he government’s main argument . . . that DAPA is a policy
7
To illustrate: 18 U.S.C. § 922(d) makes it unlawful to sell or transfer a firearm if
there is “reasonable cause to believe” that the recipient “is an unlawful user of or addicted
to any controlled substance.” In 2011, the Bureau of Alcohol, Tobacco, Firearms, and
Explosives published an open letter discussing whether a person who holds a medical
marijuana registry card, in a state that authorizes marijuana for medicinal use, is prohibited
from receiving a firearm. The ATF answered in the affirmative, telling licensees that “you
may not transfer firearms or ammunition” to such persons. ATF, U.S. Dept. of Justice,
Open Letter to All Federal Firearms Licensees (Sept. 21, 2011) (emphasis added). Because
the statute imposed a mandatory rule, the ATF’s letter did so as well. But that did not
make it a legislative rule. To the contrary, the Ninth Circuit held that it was “textbook
interpretive.” Wilson, 835 F.3d at 1100.
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statement.” Id. at 763-65. Moreover, the decision confirmed that the
presence or absence of agency discretion was irrelevant to other types of rules
exempt from notice-and-comment under § 553, such as procedural rules. See
id. at 765. In a later decision arising out of the same litigation, the Court again
addressed whether it was substantially likely that the DAPA memorandum
withdrew agency discretion, but only in the context of determining whether
it was a “policy statement,” not an interpretive rule. Texas, 809 F.3d at 171-
76.
In Texas v. E.E.O.C., 933 F.3d 433 (5th Cir. 2019), the Court
addressed the “jurisdictional” question of whether agency guidance was a
“final agency action.” Id. at 441. There the Court stated that “withdrawal
of discretion distinguishes a policy statement . . . from a final agency action.”
Id. at 442. Nothing in this passage considered “interpretive rules” in the
context of § 553. 8
Finally, in Texas Sav. & Community Bankers Ass’n v. Federal Housing
Finance Bd., 201 F.3d 551 (5th Cir. 2000), we stated, somewhat imprecisely,
that “[n]on-legislative rules . . . ‘genuinely leave the agency and its
8
E.E.O.C. stated in passing that the guidance had to undergo notice and comment,
possibly implying that it was not interpretive. See 933 F.3d at 451. The Court cited no
authority for this remark, and a close reading shows it was dictum. United States v. Segura,
747 F.3d 323, 328 (5th Cir. 2014) (“A statement is dictum if it could have been deleted
without seriously impairing the analytical foundations of the holding and being peripheral,
may not have received the full and careful consideration of the court that uttered it.”). The
Court’s actual holding rested on narrower grounds: the agency lacked statutory authority
to issue the guidance because it was not “procedural.” E.E.O.C., 933 F.3d at 439, 451(quoting 42 U.S.C. § 2000e-12(a)); see Gen. Elec. Co. v. Gilbert, 429 U.S. 125, 141 & n.20
(1976) (noting the Equal Employment Opportunities Commission may only issue
“procedural regulations” under Title VII). But a rule can be interpretive even if it is non-
procedural. See 5 U.S.C. § 553(b)(A) (listing “interpretive rules” and “rules of . . .
procedure” separately). Indeed, the entire question of notice and comment was irrelevant
in E.E.O.C., because that agency never has to undergo notice and comment when issuing
regulations under Title VII. See Edelman v. Lynchburg College, 535 U.S. 106, 114 n.7 (2002).
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decisionmakers free to exercise discretion.’” Id. (quoting Professionals and
Patients, 56 F.3d at 595). Plucked from context, that statement could be
misread to say that any rule that restricts discretion is a legislative rule. But,
once again, the Court’s analysis focused only on whether the rule was a policy
statement. See id. Because the Court answered that question in the
affirmative, see id., it had no occasion to decide the counterfactual: whether a
rule which fails to preserve discretion could nevertheless qualify as
interpretive.
In this case, the FAA does not dispute that the Must-Issue Rule
restricts agency discretion and is not a policy statement. We do not address
the merits of that question, finding it waived. But, for the reasons already
noted, this does not preclude the FAA from arguing that the Rule is an
interpretive rule.
C.
As explained in Part II.A, a rule is legislative, not interpretive, if it is
irreconcilable with a prior legislative rule. We agree with FTI that the Must-
Issue Rule is inconsistent with FAA regulations.
The Rule speaks in no uncertain terms. “[I]f the [training center
evaluator] is conducting a practical test for the issuance of an ATP Certificate
in a type-rated airplane, the ATP Certificate with the type rating must . . . be
issued if the test is successfully completed.” FAA Order 8900.1, Vol. 3, Ch.
54, § 2, ¶ 3-4355(D)(6) (June 20, 2020) (emphasis added). Therefore, the
Rule mandates issuance of a type rating upon the satisfaction of, at most, only
two criteria:
• The pilot completes an ATP certificate practical test in
a type-rated airplane; and
• The pilot otherwise satisfies the prerequisites for an
ATP certificate (which are set forth in § 61.153).
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But as discussed in Part I.A, § 61.157 codifies its own set of criteria for type
ratings to be issued concurrently with ATP certificates. Subject to certain
exceptions, a type rating may only be issued if:
• The pilot completes a practical test; and
• The pilot otherwise satisfies the training requirements
for a type rating (which are set forth in § 61.157(b)(1)-
(2)).
14 C.F.R. § 61.157(b). The issue, then, is whether the latter set of criteria,
under § 61.157(b), are subsumed by the former set of criteria, established by
the Must-Issue Rule. If they are not—that is to say, if it is possible that a pilot
would need do something extra under § 61.157(b) to earn a type rating that
they would not have to do under the Rule—then the Rule and the regulations
conflict, and FTI’s petition must be sustained.
FTI vigorously contends that the practical test requirements for an
ATP certificate and a type rating differ, even when the test is conducted in a
type rated aircraft. The FAA denies this with equal vigor. For argument’s
sake, we grant the FAA’s claim that “if the pilot successfully completes the
completes the airline transport pilot certificate practical test in a type-rated
aircraft, the pilot has also successfully completed the practical test for a type
rating” (emphasis added). This proposition does not get the FAA across the
finish line, though, because the agency must also persuade us that the training
requirements of § 61.157(b) to obtain a type rating are also satisfied when a
pilot completes their practical test in a type-rated aircraft and thereby
qualifies for an ATP certificate. It is here that we think the FAA falls short. 9
9
Critically, the Rule does not say a candidate who takes their practical test in a
type-rated aircraft and thereby qualifies for an ATP certificate has merely satisfied the
practical test requirement—one of several—for a type rating. Nor does the Rule contain any
proviso stating that such a candidate may only be issued a type rating if they satisfy the non-
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As noted, § 61.157(b)(1) and (2) provide that that a pilot cannot obtain
a type rating unless they have “receive[d] and log[ged] ground and flight
training from an authorized instructor on the areas of operation under [§
61.157] that apply to the aircraft type rating” and “receive[d] a logbook
endorsement from an authorized instructor that certifies the applicant
completed” such training. The FAA argues that the “areas of operation”
for which training is required under these provisions are the same as those
covered by the ATP certificate practical test, at least when that test is taken
in a type-rated aircraft. See id. § 61.153(h). But even if that is true, there is a
difference between being tested on a subject and being trained in it. A pilot
can theoretically pass a test without having received all necessary training,
just as one could theoretically pass a bar examination without having
attended law school. But type ratings—like law licenses—require both.
Therefore, the practical test given for an ATP certificate does not obviate the
training that must be receive under § 61.157(b).
Nor do the other prerequisites for an ATP certificate categorically
require pilots to receive the same training as that which is required under §
61.157(b). See id. § 61.153 (listing requirements for ATP certificate). The
only ATP certificate requirement that even potentially overlaps is the
requirement that pilots wishing to fly multiengine aircraft receive a course of
academic and flight simulation training. See id. §§ 61.153(e), 61.156. But
unlike the training contemplated under § 61.157(b) for type rating candidates,
nothing in § 61.156 (the multiengine training course for an ATP certificate)
specifically references the “areas of operation” listed in § 61.157. Compare
practical test requirements as well. Instead, it mandates issuance of a type rating then and
there. We stress that this would likely be a different case if the Rule contained language
ensuring that it did not dilute the requirements for a type rating under § 61.157.
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id. § 61.156 with id. § 61.157(b)(1)-(2). Moreover, these two regulations
require pilots to document their training in different ways. Under § 61.156,
one must “present a graduation certificate from an authorized training
provider,” whereas under § 61.157(b)(2), one “[m]ust receive a logbook
endorsement from an authorized instructor.”
The FAA also points to 14 C.F.R. § 142.39, which provides that
“[e]ach training program curriculum must meet” various “requirements”
set out in Part 142. We do not perceive how Part 142 aids the agency’s
position. While it requires curricula to meet certain standards, such as those
pertaining to who may serve as a training instructor or evaluator, see, e.g., id.§§ 142.47, 142.55, it does not clearly show that one who qualifies for an ATP
certificate after completing a practical test in a type-rated aircraft will have
completed the training-related requirements of § 61.157(b). Simply put, if
there are any FAA rules or regulations establishing that this is so, then we are
unaware of them, because the agency has not directed them to our attention.
The FAA’s argument can also be understood in a different way.
Although an ATP certificate does not technically require that a pilot check
all the boxes under § 61.157(b), the agency appears to suggest that this may
not matter; the ATP certificate prerequisites are “more extensive than those
for a type rating.” In support, the agency gestures not only the training
program described in § 61.156, but also the fact that individuals must pass a
knowledge test, practical test, and possess a commercial pilot certificate or
comparable military or foreign airline credential. See id. § 61.153. The gist is
that, because anyone who obtains an ATP certificate after completing their
practical test in a type-rated airplane is obviously well-qualified to fly
complex aircraft, it is unnecessary that they satisfy the less-onerous
requirements of § 61.157(b). But that is a policy judgment, not an act of legal
interpretation. The regulations are unambiguous that “a person who . . .
applies for a type rating to be concurrently completed with an airline
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No. 20-60676
transport certificate” must perform the tasks listed in § 61.157(b). If the
agency believes that requirement to be redundant in some cases, it must
follow notice and comment procedures and promulgate a new regulation.
***
The Must-Issue Rule is a legislative rule, but it was not promulgated
after notice and comment as required by the APA. Because the Rule was
issued “without observance of procedure required by law,” FTI’s petition
must be granted and the Rule set aside. Id. § 706(2)(D); see Clark County,
Nev. v. F.A.A., 522 F.3d 437 (D.C. Cir. 2008) (FAA rule petitioned under 49
U.S.C. § 46110 may be set aside on grounds set forth in 5 U.S.C. § 706(2)).
In light of this disposition, we do not reach FTI’s alternative argument that
the Rule is “arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law.” 5 U.S.C. § 706(2)(A).
III.
For the foregoing reasons, we GRANT the petition for review and
SET ASIDE the Must-Issue Rule.
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