Hudson v. Federal Aviation Administration

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 8, 1999 Decided October 8, 1999

No. 98-1295

Paul S. Hudson and Aviation Consumer Action Project,
Petitioners

v.

Federal Aviation Administration,
Respondent

On Petition for Review of an Order of the
Federal Aviation Administration

Nicholas H. Cobbs argued the cause for petitioners. With
him on the briefs was Nicholas Gilman.

Bruce G. Forrest, Attorney, U.S. Department of Justice,
argued the cause for respondent. With him on the brief were
David W. Ogden, Acting Assistant Attorney General, Robert
S. Greenspan, Attorney, and Kenneth G. Caplan, Federal
Aviation Administration.

 Sherilyn Peterson argued the cause for amicus curiae The
Boeing Company. With her on the brief was Kirstin S.
Dodge.

Before: Wald, Silberman, and Tatel, Circuit Judges.

Opinion for the Court filed by Circuit Judge Silberman.

Silberman, Circuit Judge: Petitioners claim that respon-
dent Federal Aviation Administration violated the Adminis-
trative Procedure Act by issuing a purported policy statement
without notice and comment rulemaking and that the FAA's
issuance of a "type certificate" for the Boeing 777-300 pursu-
ant to the newly adopted policy was an abuse of discretion.
We conclude that notice and comment rulemaking was not
required nor was the issuance of the type certificate illegal.

I.

The administrator of the FAA is responsible for prescribing
the minimum standards required in the interest of safety for
the design of aircraft, and may establish tests to ensure
compliance with the standards. See 49 U.S.C. s 44701 et seq.
If the administrator is satisfied that the design of an aircraft
meets these standards, the FAA issues the manufacturer a
so-called type certificate allowing it to begin production of
such aircraft.

The FAA has promulgated a rule with respect to emergen-
cy evacuation of aircraft that requires manufacturers to dem-
onstrate that:

For airplanes having a seating capacity of more than 44
passengers ... the maximum seating capacity, including
the number of crewmembers required ... can be evacu-
ated from the airplane to the ground under simulated
emergency conditions within ninety seconds. Compli-
ance with this requirement must be shown by actual
demonstration ... unless the Administrator finds that a
combination of analysis and testing will provide data

 equivalent to that which would be obtained by actual
demonstration.

14 C.F.R. s 25.803(c) (emphasis added).

The regulation as originally promulgated in 1967 required
an actual demonstration when the design of an aircraft was
altered to allow a passenger capacity increase of greater than
five percent. In 1978, the regulation was amended to elimi-
nate the five-percent provision, so that it assumed its current,
discretionary, form. Then in 1989, the FAA released an
"advisory circular" that again called for demonstrations if the
five-percent benchmark was reached. See Advisory Circular
25.803-1, 55 Fed. Reg. 4,934 (Feb. 12, 1990).1 But the
circular cautioned that it "provides guidance on a means, but
not the only means, of compliance with the Federal Aviation
Regulations" concerning emergency evacuations, id. at 1, and
it stated only that "a full-scale demonstration should be
conducted when ... [t]he proposed passenger seating config-
uration is an increase of more than five percent above that
which has been previously demonstrated on an airplane ...
with an identical ... exit configuration." Id. at 4 (emphasis
added).

This case arises from the FAA's change in its position in
1998, following a reconsideration of the use of full-scale
demonstrations sparked by injuries among demonstration
participants. On March 17 of that year, the FAA issued a
new policy statement--ANM-98-2--which announced that:

The FAA has now determined that standardized method-
ologies have been developed and there are sufficient data
now available, such that a limitation on the use of analy-
sis based only on an increase in passenger capacity is no
longer necessary.... The FAA has determined that ...
where sufficient data are available, analysis is an op-
tion.... Full-scale demonstrations will still be required
when sufficient data are not available to support a combi-
nation of analysis and test [sic].

See 63 Fed. Reg. 13,095, 13,096 (March 17, 1998).

__________
1 An FAA advisory circular is akin to a policy statement. See
Brief of Amicus Curiae Boeing Co. at addendum 7.

Besides altering the agency's general policy by allowing
manufacturers to demonstrate compliance with the regulation
through analysis whatever the percentage increase in seating
capacity, the statement also foreshadowed the FAA's decision
to act in accordance with this policy in two pending certifica-
tion applications:

It is the FAA position that for the Boeing 777-300 and
the Airbus A330/340, there are currently sufficient evacu-
ation data available to support analysis.... In both
these cases, a wealth of full-scale evacuation data are
available to support analysis and the FAA is confident
that the use of analysis is well within the intent of the
regulation. Therefore, in accordance with the regulation,
conduct of additional full-scale evacuation demonstrations
is not required to demonstrate compliance, if a satisfacto-
ry analysis is produced.

Id.

In a rather unorthodox manner the policy statement also
invited public comment, stating that "[r]esolution of the public
comment will be considered in determining whether the policy
should be refined for future projects, and so reflected in [a
new] advisory circular." Id. at 13,095-96. The FAA received
23 responses prior to May, several of which were critical of
the FAA's decision to allow analysis in lieu of full-scale
demonstrations.

Boeing transmitted to the FAA its evacuation analysis for
the 777-300, and the FAA informed Boeing that the analysis
demonstrated compliance with 14 C.F.R. s 25.803. The FAA
consequently on May 4, 1998, issued Boeing a type certificate
for the 777-300. It simply states that "[t]his certificate ...
certifies that the type design ... meets the airworthiness
requirements of Part 25 of the Federal Aviation Regulations."

Petitioners, who represent an international group of air
travelers, airline pilots, and flight attendants, filed this peti-
tion for review. They allege that policy statement ANM-98-
2 could not be adopted by the FAA without the agency
undertaking notice and comment rulemaking, and, in any

event, issuance of the 777-300 type certificate was an abuse of
discretion because the FAA failed to explain both its underly-
ing change in policy and the reasons 777-300 type certifica-
tion complied with regulatory standards. The FAA counters
that petitioners cannot challenge the policy statement since it
was issued more than 60 days before petitioners filed their
petition, see 49 U.S.C. s 46110(a), and defends its substantive
decision to issue Boeing a type certificate for the 777-300.

II.

As noted, petitioners' main challenge is an APA procedural
one--that the FAA's policy statement was in effect a regula-
tory amendment that had to be preceded, not followed, by a
notice and comment procedure. See 5 U.S.C. ss 551(5),
553(b)-(c); National Family Planning & Reprod. Health
Ass'n, Inc. v. Sullivan, 979 F.2d 227, 240 (D.C. Cir. 1992).
The government, although tacitly admitting that the reason-
ing used in the new policy statement explains the subsequent
administrative action (which was an informal adjudication)
and is therefore a legitimate target of petitioners' attack,
contends that the procedural claim comes too late--that it
had to be raised within 60 days of the issuance of the policy
statement.

The difficulty with the government's argument inheres in
the peculiar position any petitioner is in when he or she
claims that an ostensible policy statement is in actuality a
regulation. A pure policy statement under the APA, as we
have often explained, is not an attempt to make substantive
law. See, e.g., Pacific Gas & Elec. Co. v. Federal Power
Comm'n, 506 F.2d 33, 38 (D.C. Cir. 1974). It is only sup-
posed to indicate an agency's inclination or leaning, not in any
way binding on the agency. See United States Tel. Ass'n v.
FCC, 28 F.3d 1232, 1234 (D.C. Cir. 1994). Sometimes, to be
sure, the purported policy statement on its face carries the
character of a substantive regulation, see, e.g., Better Gov't
Ass'n v. Department of State, 780 F.2d 86 (D.C. Cir. 1986),
but more often it will not and will only reveal itself as
something more than a policy statement when the agency

subsequently relies on it as if it were binding law.2 If a
petitioner could not challenge the issuance of the policy
statement at that point, because it was too late to bring the
procedural challenge, a loophole in the APA's notice and
comment requirements would be created.

Accordingly, we have often held that an early procedural
challenge to a purported policy statement is not ripe because
it is not yet demonstrable that the agency intends to treat it
as having the characteristics of a rule. See, e.g., Public
Citizen, Inc. v. Nuclear Regulatory Comm'n, 940 F.2d 679,
681-83 (D.C. Cir. 1991); Natural Resources Defense Council,
Inc. v. EPA, 859 F.2d 156, 191 (D.C. Cir. 1988).3 Typically
the substance of a true policy statement could not be contest-
ed then either because it would be regarded as not ripe until
it was reflected in subsequent agency actions (indeed, theo-
retically a pure policy statement might not even be final
agency action). See Pacific Gas & Elec., 506 F.2d at 45, 48-
49. It seems to us that as a practical matter a procedural
challenge to a policy statement, claiming it to be a de facto
rule, cannot be brought until a substantive challenge to the
policy would be ripe. Cf. Clean Air Implementation Project
v. EPA, 150 F.3d 1200, 1204-05 (D.C. Cir. 1998). In this case
the policy statement indicated that the agency was taking a

__________
2 We have not considered whether that analysis applies to a
subsequent informal adjudication which does not call for an adver-
sary procedure, in which case we would not see an agency refusing
to consider arguments that challenged the policy statement. It may
well be that in these circumstances a reliance on the policy state-
ment would not necessarily convert the statement into a de facto
rule. We can avoid this question here because the policy statement
and informal adjudications are so interconnected.

3 A rule of agency procedure, by contrast, will typically be ripe on
a facial challenge. See JEM Broadcasting Co., Inc. v. FCC, 22 F.3d
320 (D.C. Cir. 1994). But we think the government's alternative
argument that its statement was a procedural rule is a non-starter.
It is not a "rule," see Syncor Int'l Corp. v. Shalala, 127 F.3d 90, 94
(D.C. Cir. 1997), and it is not directed to agency procedure but
rather the substantive showing the airline manufacturer must pro-
duce. See JEM Broadcasting, 22 F.3d at 327-28.

different approach to be applied first in the upcoming Boeing
certification. As such, the policy statement not only signaled
a general shift; it discussed two specific cases that were
about to be decided. It would have been somewhat artificial
then to review the policy statement independent of those
decisions. Accordingly, we would likely have regarded peti-
tioners' APA challenge as premature if it had been brought
before the issuance of the certificate, and so we do not agree
that petitioners' subsequent challenge is too late. See id. at
1204.

Turning then to petitioners' procedural challenge, we do
not agree that the FAA was obliged to follow APA notice and
comment procedures prior to issuance of ANM-98-2. It
appears on its face to be just a policy statement. It limits
itself to situations "where sufficient data are available," states
only that "analysis in such cases may be acceptable," and
cautions that "[f]ull-scale demonstrations will still be re-
quired when sufficient data are not available to support a
combination of analysis and test [sic]." 63 Fed. Reg. at
13,096 (emphasis added). Moreover, as noted, it calls for
public comments on the policy, and indicates that there will
be a determination of whether "the policy should be refined
for future projects." Id. With respect to the 777-300, it
states that the type certificate will be approved only "if a
satisfactory analysis is produced." Id. Since the statement
does not cabin agency discretion, even as to the 777-300, it
has the characteristics of a policy statement. See Pacific Gas
& Elec., 506 F.2d at 38-39; see also Chamber of Commerce v.
Department of Labor, 174 F.3d 206, 212 (D.C. Cir. 1999). To
be sure, the government relies on the reasoning expressed in
the policy statement to support its subsequent administrative
decision, but that is not surprising because the policy state-
ment, as we noted, came only a short time before the decision
and explicitly contemplated the decision. Furthermore, al-
though the statement purported to abandon the prior practice
whereby the agency invariably required a demonstration if
the five-percent threshold was reached, nothing prevented the
agency from changing its enforcement policy again without
notice, or requiring a full demonstration for the 777-300.

 Petitioners argue that notice and comment rulemaking was
nonetheless required because ANM-98-2 is actually an inter-
pretation of the governing regulation that is at variance with
the FAA's prior "interpretation" embodied in the 1989 adviso-
ry circular. They rely on Alaska Professional Hunters
Ass'n, Inc. v. FAA, 177 F.3d 1030 (D.C. Cir. 1999), and
Paralyzed Veterans of Am. v. D.C. Arena L.P., 117 F.3d 579
(D.C. Cir. 1997). In these cases, we said that "[o]nce an
agency gives its regulation an interpretation, it can only
change that interpretation as it would formally modify the
regulation itself: through the process of notice and comment
rulemaking." Paralyzed Veterans, 117 F.3d at 586. The
instant case, however, does not fit within the Paralyzed
Veterans/Alaska Professional Hunters line for the simple
reason that it does not involve an interpretation of a regula-
tion. As we stated in Syncor Int'l Corp. v. Shalala, 127 F.3d
90, 94 (D.C. Cir. 1997), "[I]nterpretative rules and policy
statements are quite different agency instruments. An agen-
cy policy statement does not seek to impose or elaborate or
interpret a legal norm. It merely represents an agency
position with respect to how it will treat--typically enforce--
the governing legal norm." Although petitioners argue that
Alaska Professional Hunters is pertinent because it, like this
case, involved a long-term agency practice which constituted
an implicit interpretation or application of the relevant regu-
lation, that is not so. In that case, a formal adjudication by
an associate agency had adopted an interpretation of the
regulation in accord with the informal practice. See Alaska
Professional Hunters, 177 F.3d at 1031.

In the instant case there is no dispute as to the regulation's
meaning. The regulation states that where the Administra-
tor finds that a combination of analysis and testing provides
data equivalent to an actual evacuation, the former may be
used in place of the latter. Whether this test is met requires
a factual determination by the FAA, and clearly, as methods
of analysis and other considerations develop over time, the
FAA's response to the test can also. In 1989 the FAA did
not believe that analysis would provide equivalent data when
seating capacity changed by over five percent, but in 1998,

spurred on by injuries to demonstration participants, it re-
viewed its policy and concluded that the situation had
changed such that analysis and testing were now sufficient.
See 63 Fed. Reg. at 13,096 ("The FAA has now determined
that standardized methodologies have been developed and
there are sufficient data now available" (emphasis added)).
This is not a different interpretation of the regulation, just an
application of the regulation to a changed situation which calls
for a different policy.

III.

Petitioners alternatively argue that the FAA was at least
obliged to give a fuller explanation for the switch of position
that led to the issuance of the certificate--one that took into
account the adverse comments submitted in response to the
policy statement. The agency was not, however, required to
seek comments on its policy statement nor its pending certifi-
cate decision. The APA includes no such requirement and we
are not at liberty to create one. See Vermont Yankee Nucle-
ar Power Corp. v. Natural Resources Defense Council, Inc.,
435 U.S. 519, 524 (1978); see also Pension Benefit Guar.
Corp. v. LTV Corp., 496 U.S. 633, 653-55 (1990). A policy
statement can be issued at any time without a comment
period and the certificate is merely an administrative action, a
so-called informal adjudication, for which an agency is only
obliged to provide an explanation adequate to give a review-
ing court a basic understanding--and not a very detailed
one--of its action. See Camp v. Pitts, 411 U.S. 138, 143
(1973). In this case the policy statement--and the explana-
tion provided in the government's brief 4 combined with Boe-
ing's submission--easily meets that standard. The agency
decided that a full-scale demonstration created too great a

__________
4 Since an agency engaged in informal adjudication is not obliged
to give much of an explanation before a petition for review, cf.
Pension Benefit Guar., 406 U.S. at 655-56, we tend to look to its
brief for fuller explanation of its action. See, e.g., Guardian Mov-
ing & Storage Co., Inc. v. ICC, 952 F.2d 1428, 1432-33 (D.C. Cir.
1992).

risk of injury to the demonstrators and this spurred an
examination of the use of analysis. The administrator con-
cluded that, in particular cases, testing and analysis would
provide equivalent data to an actual demonstration even if the
capacity increase were greater than five percent, and also
found that such was the case for the 777-300. That some
"commentators"--whether or not their views should be con-
sidered part of the record5--disagreed with the FAA's policy
shift is of no moment. See Marsh v. Oregon Natural Re-
sources Council, 490 U.S. 360, 378 (1989) ("When specialists
express conflicting views, an agency must have discretion to
rely on the reasonable opinions of its own qualified experts
even if, as an original matter, a court might find contrary
views more persuasive.")

Petitioners do not really claim that the FAA's position was
arbitrary and capricious, only that its failure to respond to
the comments and give a fuller explanation is illegal. For the
reasons we have given, we think petitioners are wrong. The
petition for review is denied.

__________
5 The parties dispute whether those comments should be regard-
ed as part of the record in the informal adjudications. We need not
decide that issue.