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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 17, 2003 Decided July 2, 2004
No. 02-1190
FEDERAL EXPRESS CORPORATION,
PETITIONER
v.
NORMAN Y. MINETA, SECRETARY OF TRANSPORTATION, AND
THE DEPARTMENT OF TRANSPORTATION,
RESPONDENTS
KITTY HAWK AIR CARGO, INC. AND
EMERY AIR FREIGHT CORPORATION,
INTERVENORS
Consolidated with
02-1192, 02-1284, 02-1313
On Petitions for Review of Orders of the
United States Department of Transportation
–————
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Warren L. Dean, Jr. argued the cause for petitioners.
With him on the briefs were Patricia N. Snyder, Cynthia J.
Collins, Robert P. Silverberg, and Neil J. King. Dwayne S.
Byrd entered an appearance.
Christine N. Kohl, Attorney, U.S. Department of Justice,
argued the cause for respondents. With her on the brief
were William G. Kanter, Deputy Director, Michael J. Singer,
Attorney, Kirk Van Tine, General Counsel, U.S. Department
of Transportation, Paul M. Geier, Assistant General Counsel,
Peter J. Plocki, Senior Litigation Counsel, and Thomas L.
Ray, Attorney.
Before: GINSBURG, Chief Judge, EDWARDS, Circuit Judge,
and WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Chief Judge GINSBURG.
GINSBURG, Chief Judge: Five air cargo carriers, Federal
Express, Emery Air Freight, Kitty Hawk Aircargo, Polar Air
Cargo, and United Parcel Service, petition for review of four
rules promulgated by the Department of Transportation to
govern the award of compensation to air carriers under the
Air Transportation Safety and System Stabilization Act,
§§ 101 et seq., 49 U.S.C. § 40101 note. The Carriers argue
the four rules — the offset rule, two rebuttable accounting
presumptions, and a procedure for the recoupment of excess
payments — are inconsistent with the terms of the Stabiliza-
tion Act and were promulgated without an opportunity for
comment, in violation of the Administrative Procedure Act.
For the reasons set forth below, we deny the petition for
review with respect to the APA claims and the offset rule,
and dismiss the petition as unripe with respect to statutory
challenges to the two accounting rules and the recoupment
procedure.
I. Background
On September 11, 2001, as terrorists hijacked four commer-
cial passenger aircraft, the Federal Aviation Administration
issued a ‘‘ground stop order’’ halting all civilian air traffic
within the United States’ airspace. That order was lifted in
3
large part on September 14, 2001, but remained in effect at
certain airports, such as Ronald Reagan National Airport,
until the late fall of 2001 (a detail we may ignore for the
purpose of analysis).
On September 22, 2001 the Congress enacted and the
President signed into law the Air Transportation Safety and
System Stabilization Act in order to compensate air carriers
for the losses they incurred from the ground stop order while
it was in effect, and for the losses they would incur through
December 31, 2001 as a direct result of the attacks. To that
end, § 101(a)(2) of the Act authorizes the President to ‘‘[c]om-
pensate air carriers in an aggregate amount’’ of $5 billion for:
(A) direct losses incurred beginning on September 11,
2001 TTT as a result of any Federal ground stop order
issued by the Secretary of Transportation or any subse-
quent order which continues or renews such a stoppage;
and
(B) the incremental losses, incurred beginning Septem-
ber 11, 2001, and ending December 31, 2001 TTT as a
direct result of such attacks.
In the case of a cargo carrier, however, the amount of
compensation is capped at the lesser of ‘‘the amount of such
air carrier’s direct and incremental losses described in section
101(a)(2),’’ § 103(b)(1), or a percentage of $500 million equal
to that carrier’s percentage of the ‘‘total revenue ton miles’’ of
all cargo carriers for the last quarter for which data are
available, § 103(b)(2)(B). Section 103(a) authorizes the Sec-
retary of Transportation to ‘‘audit’’ the documents the air
carrier submits in order to determine the carrier’s entitle-
ment to compensation.
By the end of September 2001 the DOT had compensated
air carriers to the extent of approximately $2.3 billion. The
petitioning Carriers, each of which received some compensa-
tion, are now pursuing before the Department administrative
appeals regarding the exact amounts to which they are
entitled.
4
Over the next year the DOT issued four cumulative and
superceding ‘‘Final Rules’’ to govern the award of compensa-
tion to air carriers. See Procedures for Compensation of Air
Carriers, 66 Fed. Reg. 54,616 (October 29, 2001) (First Final
Rule), 67 Fed. Reg. 250 (January 2, 2002) (Second Final
Rule), 67 Fed. Reg. 18,468 (April 16, 2002) (Third Final Rule),
and 67 Fed. Reg. 54,058 (August 20, 2002) (Fourth Final
Rule). The First Final Rule was promulgated, pursuant to
the good cause exception of the APA, 5 U.S.C. § 553(b)(B),
without prior notice or opportunity for comment, which the
Department deemed ‘‘impractical, unnecessary, and contrary
to the public interest’’ in view of ‘‘the need to move quickly to
provide compensation to air carriers.’’ 66 Fed. Reg. at
54,620/1-2. The DOT nonetheless invited public comments
after the fact, see id. at 54,616/1, and it responded to them
when it issued the Second Final Rule. See 67 Fed. Reg. at
250/1-2. Although the Second Final Rule was also made
‘‘immediately effective,’’ the DOT again sought post hoc com-
ments from the public. See id. at 255/1.
The Third Final Rule introduced the four provisions as to
which the Carriers now petition for review. The ‘‘offset rule’’
provides
[If] a carrier experienced better-than-forecasted total
results for [the period September 11 through December
31, 2001, then] the actual results for the period after the
Federal ground stop order was lifted TTT must be offset
against direct losses incurred during the period of the
Federal ground stop order.
67 Fed. Reg. at 18,474/1. Unlike passenger carriers, which
suffered significant continuing losses after September 11,
some cargo carriers enjoyed higher profits after the attacks
because shipments of military cargo increased and the re-
duced number of commercial passenger flights shifted some
air freight from passenger to cargo carriers. See 67 Fed.
Reg. at 54,063/1. Therefore, the DOT concluded an offset ‘‘is
necessary to implement the requirement of the Act that air
carriers only receive compensation for losses actually in-
curred.’’ 67 Fed. Reg. at 18,474/1.
5
The Third Final Rule also established rebuttable presump-
tions regarding the timing of losses and the treatment of
savings. Under the timing presumption the Department
‘‘generally does not allow air carriers to include in their
calculations TTT losses that are not actually and fully realized
in the period between September 11, 2001 and December 31,
2001.’’ 14 C.F.R. § 330.39(a)(1). If, however, an air carrier
can show that ‘‘the actual costs of a loss were the direct result
of the terrorist attacks of September 11 TTT, were fully borne
within the September 11 to December 31 time period and are
permanent, and that compensation for those costs would not
be duplicative, [then] the Department will consider such
claims.’’ 67 Fed. Reg. at 18,472/1.
Under the savings presumption the Department ‘‘generally
does not accept claims by air carriers that cost savings should
be excluded from the calculation of incurred losses.’’ 14
C.F.R. § 330.39(b). An air carrier can rebut this presump-
tion only if it ‘‘can provide pre-existing documentary support’’
demonstrating ‘‘specific instances of cost savings that [it]
believes are unrelated to the events of September 11 and
believes should be excluded with the effect of increasing
compensation.’’ 67 Fed. Reg. at 18,473/2-3.
In addition, the DOT adopted the following procedural
requirement for the recoupment of any excess compensation
paid to an air carrier: ‘‘If at any time [the DOT] determine[s]
that a past payment is greater than the amount justified by
the provisions of this part and the documentation you submit,
[the air carrier] must repay immediately the excess amount to
the Department.’’ Id. at 18,476/2.
Again the DOT invited comment after rather than before
promulgating the rule, see id. at 18,475/3, and Federal Ex-
press, Emery Air Freight, and Kitty Hawk, among others,
submitted comments to which the DOT responded when it
issued the Fourth Final Rule. See 67 Fed. Reg. at 54,062–65.
That Rule did not alter the substance of either the offset rule
or the two accounting presumptions, but the DOT did agree
with Federal Express that the recoupment procedure should
be revised to ‘‘comply with [the Federal Claims] Collection
6
Act[, 31 U.S.C. §§ 3701 et seq.,] in pursuing recovery of
overpayments made under the Stabilization Act.’’ Id. at
54,063l; see 14 C.F.R. § 330.9(b). The Carriers now petition
for review of all four rules.
II. Analysis
The Carriers argue the offset rule, the two accounting
presumptions, and the recoupment procedure are contrary to
the Act. They also argue the DOT’s failure to afford inter-
ested persons an opportunity to comment before promulgat-
ing those rules violated the APA.
A. Offset Rule
The Carriers first argue the offset rule is based upon an
erroneous interpretation of the Stabilization Act. We review
the DOT’s interpretation of the Act under the familiar two-
step analysis of Chevron, U.S.A., Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837 (1984). First we must
determine ‘‘whether Congress has directly spoken to the
precise question at issue,’’ id. at 842, which is whether an air
carrier’s ‘‘better-than-forecasted total results’’ for the last
quarter of 2001 offset the air carrier’s compensation for the
direct losses it incurred as a result of the ground stop order.
If the Congress has answered that question, then ‘‘the court,
as well as the agency, must give effect to the unambiguously
expressed intent of Congress.’’ Id. at 842-43. If, however,
‘‘the statute is silent or ambiguous with respect to the specific
issue,’’ then we must go on to determine ‘‘whether the agen-
cy’s answer is based on a permissible construction of the
statute.’’ Id. at 843.
The Carriers argue the Act unambiguously precludes the
offset rule. According to the Carriers, the offset rule ‘‘im-
properly collapse[s]’’ into one what the Act treats as two
distinct categories of losses: (A) ‘‘direct losses incurred TTT
as a result of any Federal ground-stop order,’’ § 101(a)(2)(A),
and (B) ‘‘incremental losses incurred [from] September 11
[through] December 31, 2001 TTT as a direct result of [the]
attacks,’’ § 101(a)(2)(B). Thus, the Carriers maintain, the
offset rule ‘‘perverts’’ the intention of the Congress to com-
7
pensate air carriers for both categories of losses and ‘‘renders
section 101(a)(2)(A) superfluous.’’
The Department correctly points to an ambiguity in
§ 101(a)(2) demonstrating that the Act does not ‘‘address the
situation in which a carrier experience[d] short-term losses
during the ground stop order, but later realize[d] better-than-
expected revenues for the remainder of the calendar year.’’
Specifically, the statute is ambiguous regarding how and
when air carriers ‘‘incurred direct losses’’ as a result of the
September 11-14 ground stop order. The Congress neither
defined, nor provided any guidance regarding the meaning of,
the word ‘‘incurred.’’ Did an air carrier incur a loss as a
result of the ground stop order when it was unable to deliver
cargo from September 11-14, 2001? Or did it incur a loss
only if it did not recover by December the business it lost in
September? Quite understandably, nothing in the Act sug-
gests the Congress resolved these questions.
Indeed, the only metric the Act provides to determine
whether an air carrier has incurred a loss under either
§§ 101(a)(2)(A) or (B) is ‘‘the satisfaction of the President.’’
§ 103(a) (‘‘the amount of compensation payable to an air
carrier under section 101(a)(2) may not exceed the amount of
losses described in section 101(a)(2) that the air carrier
demonstrates to the satisfaction of the President TTT the air
carrier incurred’’). This delegation vests the Executive ‘‘with
broad discretion to determine appropriate criteria’’ for the
award of compensation to an air carrier with better-than-
expected results for the period September 11-December 31,
2001. Natural Res. Def. Council, Inc. v. EPA, 22 F.3d 1125,
1148-49 (D.C. Cir. 1994) (statute requiring demonstration of
equal effectiveness of alternative testing program ‘‘to the
satisfaction of the Administrator’’ grants EPA broad discre-
tion to determine equivalency).
The Department, exercising that discretion, interpreted
‘‘losses’’ to mean that which ‘‘is gone and cannot be recov-
ered,’’ and ‘‘incurred’’ to mean ‘‘liable or subject to, as in to
incur debt.’’ 67 Fed. Reg. at 54,062/2-3. Thus, according to
the DOT, a loss has been incurred ‘‘only if that loss has not
8
been fully offset by better-than-forecasted results’’ as of
December 31, 2001. 67 Fed. Reg. at 18,474/1. The Depart-
ment maintains the offset rule does not render § 101(a)(2)
superfluous because it compensates air carriers ‘‘for both
their direct and incremental losses, provided that such losses
have been incurred.’’ (Emphasis in original).
The Department’s interpretation does avoid the otherwise
absurd result of providing a windfall to cargo carriers that
actually benefitted as a result of the attacks of September 11.
Inasmuch as the undisputed purpose of the Act was to
‘‘stabilize an industry that [was] desperately in need of urgent
relief,’’ 147 CONG. REC. H5884 (daily ed. Sept. 21, 2001)
(statement of Rep. Reynolds), it is simply implausible that the
Congress intended to compensate cargo carriers for the di-
rect losses they incurred as a result of the September 11-14
ground stop order even if they enjoyed better financial re-
sults overall for the period September 11-December 31, 2001.
See Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 274
(1995) (rejecting interpretation that, ‘‘when viewed in terms of
the statute’s basic purpose, seems anomalous’’). The Con-
gress intended the compensation to ‘‘make up for the revenue
[carriers] lost TTT as a result of [the September 11] terrorist
attack and the government’s order grounding their planes,’’
147 CONG. REC. H5885 (daily ed. Sept. 21, 2001) (statement of
Rep. Frost); see id. at S9595 (statement of Sen. Levin)
(Stabilization Act provides ‘‘a $5 billion cash infusion to stop
the immediate hemorrhaging of the airline industry and to
cover their losses for the month of September’’); it surely
intended also that the DOT ‘‘pay out no more in subsidy than
is currently needed to accomplish the purposes of the [Act].’’
Trans World Airlines, Inc. v. Civil Aeronautics Bd., 385 F.2d
648, 667 (D.C. Cir. 1967).
Although the offset rule effectuates the primary purpose of
the Act, the DOT’s parsing of § 101(a)(2), which focuses upon
whether losses have been ‘‘incurred,’’ does nothing to parry
the thrust of the Carriers’ point that the offset rule renders
subsection (A) superfluous. See Asiana Airlines v. FAA, 134
F.3d 393, 398 (D.C. Cir. 1998) (it is ‘‘a cardinal principle of
interpretation [that one should] construe a statute so that no
9
provision is rendered inoperative or superfluous, void or
insignificant’’) (internal quotation marks and citations omit-
ted). For regardless of what ‘‘incurred’’ means, the interpre-
tation of § 101(a)(2) advanced by the DOT does not account
for the Congress having distinguished between ‘‘direct losses
incurred TTT as a result of any Federal ground stop order’’
and ‘‘incremental losses incurred TTT as a direct result of [the
September 11] attacks’’; rather the Department’s argument
proceeds as if the Act simply made compensable ‘‘all losses
incurred’’ as a result of the September 11 attacks.
The lacuna in DOT’s argument is not fatal to the offset
rule, however, because it is self-evident that § 101(a)(2)(A)
does admit of a straightforward and reasonable interpreta-
tion — that is, one in which no provision is rendered superflu-
ous — with which the offset rule is consistent. In subsections
(A) and (B) the Congress sought to compensate air carriers
for losses caused by two different types of events: (A) ‘‘any
Federal ground stop order,’’ and (B) the terrorist attacks of
September 11, respectively. (Emphasis added). The losses
made compensable by § 101(a)(2)(A) are not only those re-
sulting from the ground stop order in effect from September
11 through 14, 2001; they include direct losses from ‘‘any
subsequent order which continues or renews such a stoppage’’
without any limitation in time. By contrast, § 101(a)(2)(B)
provides compensation for the incremental losses incurred by
air carriers only for the period ‘‘beginning September 11,
2001 and ending December 31, 2001.’’ Offsetting the Carri-
ers’ direct losses incurred as a result of the September 11-14
ground stop order by the amount of their better-than-
expected results for the last quarter of 2001 may mean that a
Carrier does not collect anything under § 101(a)(2)(A) for
2001, but it does not render § 101(a)(2)(A) superfluous; a
Carrier may yet receive compensation for its direct losses
from ‘‘any subsequent [ground stop] order which continues or
renews such a stoppage’’ after December 31, 2001. There-
fore, we conclude the offset rule reflects a permissible inter-
pretation of § 101(a)(2).
Although the Department’s response to the Carriers’ objec-
tion was incomplete, we need not remand the offset rule to
10
the DOT, pursuant to SEC v. Chenery Corp., 332 U.S. 194,
196 (1947), merely for the agency to republish our interpreta-
tion of § 101(a)(2) in the pages of the Federal Register. ‘‘No
principle of administrative law or common sense requires us
to remand a case in quest of a perfect opinion unless there is
reason to believe that the remand might lead to a different
result.’’ Fisher v. Bowen, 869 F.2d 1055, 1057 (7th Cir. 1989).
There is no such reason here. This is not a situation in which
the agency believed its interpretation was ‘‘compelled by a
statute that is actually ambiguous.’’ American Petroleum
Inst. v. EPA, 906 F.2d 729, 740 (D.C. Cir. 1990). In that
situation ‘‘it is not for the court ‘to choose between competing
meanings,’ ’’ and so we remand to the agency that it may
make a policy choice. PDK Labs. Inc. v. DEA, 362 F.3d 786,
798 (D.C. Cir. 2004) (quoting Alarm Indus. Communications
Comm. v. FCC, 131 F.3d 1066, 1072 (D.C. Cir. 1997)). Here,
the DOT has already chosen between competing meanings
and made its policy choice; it merely failed to respond
adequately to the Carriers’ objection that its choice rendered
§ 101(a)(2) (A) superfluous.
B. Accounting Presumptions
The Carriers next argue the two rebuttable accounting
presumptions improperly ‘‘deprive air carriers of the compen-
sation to which they are entitled under the Stabilization Act.’’
The DOT, before arguing the merits of the Carriers’ position,
maintains their objections are not ripe for resolution. The
Carriers respond that their petition is indeed ripe because it
addresses only the ‘‘validity of the [accounting] Rules them-
selves, not the Rules as applied.’’
Whether the petitioners’ challenge to the accounting rules
is ripe depends upon ‘‘the fitness of the issues for judicial
decision and the hardship to the parties of withholding court
consideration.’’ Abbott Labs. v. Gardner, 387 U.S. 136, 149
(1967). In applying the ripeness doctrine to agency action we
‘‘balance the interests of the court and the agency in delaying
review against ‘the petitioner’s interest in prompt consider-
ation of allegedly unlawful agency action.’ ’’ Cronin v. FAA,
11
73 F.3d 1126, 1131 (D.C. Cir. 1996) (quoting Eagle-Picher
Indus. v. EPA, 759 F.2d 905, 915 (D.C. Cir. 1985)).
We conclude that the question whether the accounting
presumptions improperly ‘‘deprive air carriers of compensa-
tion to which they are entitled’’ is not ripe for resolution.
First, because the accounting presumptions are rebuttable it
is uncertain whether they will ever have the effect of depriv-
ing any of the Carriers of any compensation. See id. at 1132-
33 (‘‘It makes no sense for us to anticipate a wrong when
none may ever arise’’). Moreover, if and when that does
come to pass, judicial review of the issue ‘‘is likely to stand on
a much surer footing in the context of a specific application of
this regulation than could be the case in the framework of the
generalized challenge made here.’’ Toilet Goods Ass’n, Inc.
v. Gardner, 387 U.S. 158, 164 (1967). Therefore, it is in the
interest of the court (and presumably that of the agency) to
postpone review until the DOT resolves the Carriers’ adminis-
trative appeals.
Furthermore, postponing review of the accounting pre-
sumptions will not be a hardship to the Carriers, let alone a
hardship that is ‘‘immediate, direct, and significant.’’ State
Farm Mut. Auto. Ins. Co. v. Dole, 802 F.2d 474, 480 (D.C.
Cir. 1986). The Carriers are concerned that they will be
precluded ‘‘from contesting the validity of the Rules them-
selves’’ in any appeal of the administrative proceedings now
pending before the DOT, but they need not worry: We have
long held that ‘‘[a] time limitation on petitions for judicial
review TTT can run only against challenges ripe for review.’’
Baltimore Gas & Elec. Co. v. ICC, 672 F.2d 146, 149 (D.C.
Cir. 1982); see Eagle-Picher Indus., 759 F.2d at 911-12
(otherwise untimely petition may be heard ‘‘where the peti-
tioner lacked a meaningful opportunity to challenge the agen-
cy action during the review period due to TTT lack of ripe-
ness’’).
In sum, ‘‘[b]ecause the ‘institutional interests’ of the agency
and the court favor postponing review, and because petition-
ers have pointed to no ‘hardship’ ’’ that would result from
postponing review until the rules have been applied to their
detriment, we dismiss the present challenge to the accounting
12
presumptions as unripe. Southern Co. Servs., Inc. v. FCC,
313 F.3d 574, 582 (D.C. Cir. 2002).*
C. Recoupment Procedures
The Carriers next argue the recoupment procedure is
unlawful because the Act does not authorize ‘‘any means
other than an audit for analyzing the propriety of any distri-
bution authorized by the Act.’’ The DOT again argues the
Carriers’ challenge is unripe because their claims for compen-
sation ‘‘are still in the administrative review process’’ and,
therefore, ‘‘it is premature to suggest that they will be subject
to a ‘procedurally unfair’ process.’’ The Carriers reply that
their challenge to the recoupment procedure presents a ripe
issue, namely, whether the DOT may make ‘‘final determina-
tions of claims TTT without following the audit procedures set
forth in the Act.’’
The Carriers’ challenge to § 330.9(b) is unripe for the same
reason their challenge to the accounting presumptions is
unripe. Whether the result of the recoupment procedure will
be any different in substance from that of the ‘‘audit’’ author-
ized in § 103(a) is necessarily uncertain until the recoupment
procedure has been applied. Therefore, consideration of this
issue, like consideration of the rebuttable accounting pre-
sumptions, ‘‘would benefit from a more concrete setting.’’
Clean Air Implementation Project v. EPA, 150 F.3d 1200,
* We go only so far toward review as to caution the DOT against
limiting the evidence used to rebut the savings presumption to ‘‘pre-
existing documentary support,’’ 67 Fed. Reg. 18,473/2-3, as contem-
plated in one part of the Rule about which the petitioners specifical-
ly complain. There is no rational basis for imposing such a
limitation. See Chem. Mfrs. Ass’n v. Dep’t of Transp., 105 F.3d 702,
706 (D.C. Cir. 1997). Although it may be reasonable initially to
presume that post-September 11 cost-reduction plans were attribut-
able solely ‘‘to changed expectations regarding revenues after the
attacks,’’ 67 Fed. Reg. at 18,473/2, and that pre-September 11 cost
reduction plans ‘‘would have been reflected in an applicant’s pre-
September 11 forecasted financials,’’ id., the DOT offers no reason
to prohibit a carrier from presenting an otherwise valid document
created on or after September 11 showing post-September 11 cost-
reductions that were not linked to the attacks.
13
1204 (D.C. Cir. 1998). Furthermore, the Carriers do not
argue they would suffer any hardship from postponing judi-
cial review of this issue. Therefore, we dismiss the present
challenge to the recoupment procedure as unripe.
D. Opportunity to Comment
Finally, the Carriers argue the Third and the Fourth Final
Rules were promulgated in violation of the APA because the
DOT failed to provide an opportunity for public comment
before the Rules became ‘‘final’’; wherefore they ask us to
‘‘direct the Department to publish notice of a proposed rule in
the Federal Register allowing sufficient time for public com-
ments.’’ The DOT argues it has complied with the notice and
comment requirements of the APA because it provided an
opportunity to comment upon the Third Final Rule prior to
the promulgation of the Fourth Final Rule, which is the Rule
pursuant to which the agency will make ‘‘the ultimate deter-
minations of the amount of compensation for which air carri-
ers are eligible.’’ 67 Fed. Reg. at 54,058/2.
The APA requires that the agency ‘‘give interested persons
an opportunity to participate in the rule making through
submission of written data, views, or arguments.’’ 5 U.S.C.
§ 553(c). Although perhaps DOT should not have labeled the
First through Third rules as ‘‘final,’’ the agency has made a
‘‘compelling showing,’’ Advocates for Highway & Auto Safety
v. Fed. Highway Admin., 28 F.3d 1288, 1292 (D.C. Cir. 1994),
that it provided ‘‘a meaningful opportunity to comment’’
before the Fourth Final Rule became effective, Gerber v.
Norton, 294 F.3d 173, 179 (D.C. Cir. 2002). In fact, interest-
ed persons, including the Carriers, had three opportunities
‘‘to comment on the [Fourth Final R]ule while it [wa]s still in
the formative’’ stage, Advocates for Highway & Auto Safety,
28 F.3d at 1291. And Federal Express and Kitty Hawk each
commented upon the offset rule, the accounting presump-
tions, and the recoupment procedure. DOT’s responses to,
and in some instances adoption of, the points made by the
Carriers show the agency had a ‘‘flexible and open-minded
attitude towards its own rules,’’ notwithstanding the ‘‘final’’
label it had attached to them. Nat’l Tour Brokers’ Ass’n v.
14
United States, 591 F.2d 896, 902 (D.C. Cir. 1978); see Advo-
cates for Highway & Auto Safety, 28 F.3d at 1292 (‘‘changes
and revision are indicative of an open mind’’); McLouth Steel
Prods. Corp. v. Thomas, 838 F.2d 1317, 1323 (D.C. Cir. 1988)
(‘‘participat[ion] in the rulemaking’’ meaningful because
‘‘agency’s mind remain[ed] open’’ to comments). Having
provided an opportunity to comment before it ‘‘chiseled [the
Fourth Final Rule] into bureaucratic stone,’’ American Fed’n
of Gov’t Employees v. Block, 655 F.2d 1153, 1157 (D.C. Cir.
1981), the DOT satisfied the notice and comment require-
ments of the APA. Remanding this matter for the agency to
take further comments would serve no useful purpose whatso-
ever.
III. Conclusion
For the foregoing reasons, the petition for review is denied
in part and dismissed in part.
So ordered.