## Facts

- The FAA regulates aircraft design safety and may issue a type certificate if an aircraft design meets minimum safety standards.
- An FAA evacuation rule, 14 C.F.R. § 25.803(c), requires a 90-second evacuation demonstration for aircraft seating more than 44 passengers unless the Administrator finds a combination of analysis and testing provides equivalent data.
- In 1989 (published 1990), the FAA issued Advisory Circular 25.803-1 recommending a full-scale demonstration when seating increased by more than 5%, while stating it was only guidance and not the sole means of compliance.
- In 1998, the FAA issued a revised advisory circular/policy statement reflecting that improved methodologies could, in some situations, provide equivalent evacuation data through analysis and testing; the FAA solicited public comment and stated the guidance might be refined later.
- Boeing sought certification for the 777-300, a higher-capacity variant of the 777; the FAA concluded sufficient data existed to show compliance via analysis and testing and issued a type certificate without a full-scale 90-second demonstration.
- Paul S. Hudson and the Aviation Consumer Action Project petitioned for review, asserting (1) the 1998 policy required APA notice-and-comment because it effectively changed the evacuation-testing requirement, and (2) the 777-300 type certification was unlawful and an abuse of discretion.

## Issues

1. Whether the FAA’s 1998 evacuation-testing policy statement/revised advisory circular was a legislative rule requiring APA notice-and-comment procedures.
2. Whether the FAA acted contrary to law or abused its discretion by issuing a type certificate for the Boeing 777-300 based on analysis and testing rather than a full-scale evacuation demonstration.

## Decision

- The court denied the petition for review.
- The court held the 1998 policy statement was nonbinding guidance (an interpretive rule or policy statement) and therefore not subject to APA notice-and-comment rulemaking.
- The court held the FAA’s issuance of the 777-300 type certificate was lawful and not an abuse of discretion because § 25.803(c) expressly allows reliance on analysis and testing when the Administrator finds it provides equivalent data.

## Legal Principles

- An agency document that does not impose binding obligations and instead describes how the agency will exercise discretion under existing regulations is treated as an interpretive rule or policy statement, not a legislative rule requiring notice-and-comment.
- Where a regulation authorizes an agency to accept “analysis and testing” as equivalent to an “actual demonstration,” the agency may approve compliance based on such methods if it makes the equivalency finding contemplated by the rule.
- Courts review technical certification judgments under a deferential APA standard and will uphold the agency decision when it fits within the discretion granted by the governing regulation and is not arbitrary or unlawful.

## Conclusion

The D.C. Circuit upheld the FAA’s updated evacuation-testing guidance as nonbinding and sustained the Boeing 777-300 type certification, concluding that § 25.803(c) permits the FAA to substitute analysis and testing for a full-scale evacuation demonstration when the agency finds equivalent compliance data.


Hudson v. Fed. Aviation Admin., 192 F.3d 1031 (D.C. Cir. 1999)