Alaska Professional Hunters Association, Inc. v. Federal Aviation Administration

United States Court of Appeals for the District of Columbia Circuit · Administrative Law

Administrative LawAPA notice-and-comment rulemakinginterpretive rulesagency change in interpretationAPA § 553notice and commentinterpretive ruledefinitive interpretation

Facts

For roughly thirty years, FAA personnel in Alaska consistently advised hunting and fishing guides who piloted light aircraft as part of package trips that they were governed only by Part 91, not the stricter commercial-operation requirements of Parts 121 and 135. That advice rested on the agency's understanding of Administrator v. Marshall and was uniformly given to guides, lodge managers, and guiding services in Alaska. In 1998, the FAA published a Notice to Operators announcing that Alaskan guides who transport customers by air as part of their guiding packages must comply with Parts 119, 121, and 135 because they are operating for compensation or hire. The FAA issued the Notice without notice-and-comment procedures and justified the change as a correction of the Alaskan Region's earlier misreading of Marshall.

Issue

Did the APA require the FAA to use notice-and-comment rulemaking before issuing a Notice to Operators that reversed the agency's longstanding interpretation that Alaskan guide pilots were subject only to Part 91 rather than Parts 119, 121, and 135? More specifically, was the Notice merely interpretive, or did it significantly revise an authoritative prior interpretation of the FAA's regulations?

Rule

When an agency has given its regulation a definitive interpretation, and later significantly revises that interpretation, the agency has effectively amended the rule and must use notice-and-comment rulemaking under APA § 553. Local advice does not always amount to an authoritative agency position, but longstanding, uniform, agency-wide acknowledged guidance on which regulated parties reasonably rely can become an authoritative departmental interpretation.

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For 25 years, regional inspectors of the Federal Rail Safety Bureau in Montana uniformly told wilderness tour companies that a regulation governing "for-hire passenger rail service" did not apply when short train rides were bundled into all-inclusive ranch vacations and not billed separately. Internal bureau reports later described that understanding as the agency's "past policy." The bureau then published a notice announcing that such bundled rides are now covered by the commercial-service regulation, without notice and comment.

If a ranch operator challenges the notice, which is the strongest argument that the notice is invalid?

Explanation. When an agency has given its regulation a definitive interpretation and later significantly revises that interpretation, the change effectively amends the rule and requires notice and comment. Here, the longstanding uniform advice, coupled with later agency acknowledgment of that prior policy, makes the earlier position authoritative rather than merely ad hoc. The problem is not that all interpretive rules require notice and comment, but that this one changed an established interpretation. (Derived from Alaska Professional Hunters Association, Inc. v. Federal Aviation Administration (n.d.).)