Flt Training Intl v. FAA

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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No. 20-60676

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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