192 F.3d 1031 (D.C. Cir. 1999)
Paul S. Hudson and Aviation Consumer Action Project, Petitionersv.Federal Aviation Administration, Respondent
No. 98-1295
United States Court of AppealsFOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 8, 1999Decided October 8, 1999

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:


1
Petitioners claim that respondent Federal Aviation Administration violated the Administrative Procedure Act by issuing a purported policy statement  without notice and comment rule making and that the FAA's  issuance of a "type certificate" for the Boeing 777-300 pursuant to the newly adopted policy was an abuse of discretion. We conclude that notice and comment rule making was not  required nor was the issuance of the type certificate illegal.

I.

2
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. § 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.


3
The FAA has promulgated a rule with respect to emergency evacuation of aircraft that requires manufacturers to demonstrate that:


4
For airplanes having a seating capacity of more than 44passengers ... the maximum seating capacity, including the number of crew members required ... can be evacuated 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 acombination of analysis and testing will provide dataequivalent to that which would be obtained by actualdemonstration.


5
14 C.F.R. § 25.803(c) (emphasis added).


6
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 eliminate 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 configuration 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).


7
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:


8
The FAA has now determined that standardized method-ologies have been developed and there are sufficient datanow available, such that a limitation on the use of analy-sis based only on an increase in passenger capacity is nolonger necessary....  The FAA has determined that ...where sufficient data are available, analysis is an op-tion....  Full-scale demonstrations will still be requiredwhen sufficient data are not available to support a combi-nation of analysis and test [sic].


9
See 63 Fed. Reg. 13,095, 13,096 (March 17, 1998).


10
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 certification applications:


11
It is the FAA position that for the Boeing 777-300 andthe Airbus A330/340, there are currently sufficient evacu-ation data available to support analysis....  In boththese cases, a wealth of full-scale evacuation data areavailable to support analysis and the FAA is confidentthat the use of analysis is well within the intent of theregulation.  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.


12
Id.


13
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.


14
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. § 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."


15
Petitioners, who represent an international group of air  travelers, airline pilots, and flight attendants, filed this petition for review.  They allege that policy statement ANM-982 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 underlying change in policy and the reasons 777-300 type certification 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. § 46110(a), and defends its substantive  decision to issue Boeing a type certificate for the 777-300.

II.

16
As noted, petitioners' main challenge is an APA procedural  one--that the FAA's policy statement was in effect a regulatory amendment that had to be preceded, not followed, by a  notice and comment procedure.  See 5 U.S.C. §§ 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 reasoning 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.


17
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 supposed 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.


18
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 contested then either because it would be regarded as not ripe until  it was reflected in subsequent agency actions (indeed, theoretically a pure policy statement might not even be final  agency action).  See Pacific Gas & Elec., 506 F.2d at 45, 4849.  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 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 petitioners' 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.


19
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 required 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 statement, as we noted, came only a short time before the decision  and explicitly contemplated the decision.  Furthermore, although 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.


20
Petitioners argue that notice and comment  rulemaking was  nonetheless required because ANM-98-2 is actually an interpretation of the governing regulation that is at variance with  the FAA's prior "interpretation" embodied in the 1989 advisory 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 regulation.  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 agency 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 regulation, 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.


21
In the instant case there is no dispute as to the regulation's  meaning.  The regulation states that where the Administrator 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 reviewed 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.

22
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 certificate decision.  The APA includes no such requirement and we  are not at liberty to create one.  See Vermont Yankee Nuclear 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 reviewing 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 explanation provided in the government's brief4 combined with Boeing's submission--easily meets that standard.  The agency  decided that a full-scale demonstration created too great a risk of injury to the demonstrators and this spurred an  examination of the use of analysis.  The administrator concluded 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 considered part of the record5--disagreed with the FAA's policy  shift is of no moment.  See Marsh v. Oregon Natural Resources 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.")


23
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.



Notes:


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


2
 We have not considered whether that analysis applies to a  subsequent informal adjudication which does not call for an adversary 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 statement 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 produce.  See JEM Broadcasting, 22 F.3d at 327-28.


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 Moving & Storage Co., Inc. v. ICC, 952 F.2d 1428, 1432-33 (D.C. Cir.  1992).


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


