UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


HUDSON, PAUL S.

v.

FAA


98-1295a

D.C. Cir. 1999


*	*	*


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


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).




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n 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


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


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




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n 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.


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 


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 




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n 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.




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n 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.